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Mental Health Bill [Lords]

Volume 461: debated on Monday 18 June 2007

[1st allotted day]

As amended in the Public Bill Committee, considered.

New Clause 3

Independent mental health advocates

‘(1) Part 10 of the 1983 Act (miscellaneous and supplementary) is amended as follows.

(2) Before section 131 insert—

“130A Independent mental health advocates

(1) The appropriate national authority shall make such arrangements as it considers reasonable to enable persons (“independent mental health advocates”) to be available to help qualifying patients.

(2) The appropriate national authority may by regulations make provision as to the appointment of persons as independent mental health advocates.

(3) The regulations may, in particular, provide—

(a) that a person may act as an independent mental health advocate only in such circumstances, or only subject to such conditions, as may be specified in the regulations;

(b) for the appointment of a person as an independent mental health advocate to be subject to approval in accordance with the regulations.

(4) In making arrangements under this section, the appropriate national authority shall have regard to the principle that any help available to a patient under the arrangements should, so far as practicable, be provided by a person who is independent of any person who is professionally concerned with the patient’s medical treatment.

(5) For the purposes of subsection (4) above, a person is not to be regarded as professionally concerned with a patient’s medical treatment merely because he is representing him in accordance with arrangements—

(a) under section 35 of the Mental Capacity Act 2005; or

(b) of a description specified in regulations under this section.

(6) Arrangements under this section may include provision for payments to be made to, or in relation to, persons carrying out functions in accordance with the arrangements.

(7) Regulations under this section—

(a) may make different provision for different cases;

(b) may make provision which applies subject to specified exceptions;

(c) may include transitional, consequential, incidental or supplemental provision.

130B Arrangements under section 130A

(1) The help available to a qualifying patient under arrangements under section 130A above shall include help in obtaining information about and understanding—

(a) the provisions of this Act by virtue of which he is a qualifying patient;

(b) any conditions or restrictions to which he is subject by virtue of this Act;

(c) what (if any) medical treatment is given to him or is proposed or discussed in his case;

(d) why it is given, proposed or discussed;

(e) the authority under which it is, or would be, given; and

(f) the requirements of this Act which apply, or would apply, in connection with the giving of the treatment to him.

(2) The help available under the arrangements to a qualifying patient shall also include—

(a) help in obtaining information about and understanding any rights which may be exercised under this Act by or in relation to him; and

(b) help (by way of representation or otherwise) in exercising those rights.

(3) For the purpose of providing help to a patient in accordance with the arrangements, an independent mental health advocate may—

(a) visit and interview the patient in private;

(b) visit and interview any person who is professionally concerned with his medical treatment;

(c) require the production of and inspect any records relating to his detention or treatment in any hospital or registered establishment or to any after-care services provided for him under section 117 above;

(d) require the production of and inspect any records of, or held by, a local social services authority which relate to him.

(4) But an independent mental health advocate is not entitled to the production of, or to inspect, records in reliance on subsection (3)(c) or (d) above unless—

(a) in a case where the patient has capacity or is competent to consent, he does consent; or

(b) in any other case, the production or inspection would not conflict with a decision made by a donee or deputy or the Court of Protection and the person holding the records, having regard to such matters as may be prescribed in regulations under section 130A above, considers that—

(i) the records may be relevant to the help to be provided by the advocate; and

(ii) the production or inspection is appropriate.

(5) For the purpose of providing help to a patient in accordance with the arrangements, an independent mental health advocate shall comply with any reasonable request made to him by any of the following for him to visit and interview the patient—

(a) the person (if any) appearing to the advocate to be the patient’s nearest relative;

(b) the responsible clinician for the purposes of this Act;

(c) an approved mental health professional.

(6) But nothing in this Act prevents the patient from declining to be provided with help under the arrangements.

(7) In subsection (4) above—

(a) the reference to a patient who has capacity is to be read in accordance with the Mental Capacity Act 2005;

(b) the reference to a donee is to a donee of a lasting power of attorney (within the meaning of section 9 of that Act) created by the patient, where the donee is acting within the scope of his authority and in accordance with that Act;

(c) the reference to a deputy is to a deputy appointed for the patient by the Court of Protection under section 16 of that Act, where the deputy is acting within the scope of his authority and in accordance with that Act.

130C Section 130A: supplemental

(1) This section applies for the purposes of section 130A above.

(2) A patient is a qualifying patient if he is—

(a) liable to be detained under this Act (otherwise than by virtue of section 4 or 5(2) or (4) above or section 135 or 136 below);

(b) subject to guardianship under this Act; or

(c) a community patient.

(3) A patient is also a qualifying patient if—

(a) not being a qualifying patient falling within subsection (2) above, he discusses with a registered medical practitioner or approved clinician the possibility of being given a form of treatment to which section 57 above applies; or

(b) not having attained the age of 18 years and not being a qualifying patient falling within subsection (2) above, he discusses with a registered medical practitioner or approved clinician the possibility of being given a form of treatment to which section 58A above applies.

(4) Where a patient who is a qualifying patient falling within subsection (3) above is informed that the treatment concerned is proposed in his case, he remains a qualifying patient falling within that subsection until—

(a) the proposal is withdrawn; or

(b) the treatment is completed or discontinued.

(5) References to the appropriate national authority are—

(a) in relation to a qualifying patient in England, to the Secretary of State;

(b) in relation to a qualifying patient in Wales, to the Welsh Ministers.

(6) For the purposes of subsection (5) above—

(a) a qualifying patient falling within subsection (2)(a) above is to be regarded as being in the territory in which the hospital or registered establishment in which he is liable to be detained is situated;

(b) a qualifying patient falling within subsection (2)(b) above is to be regarded as being in the territory in which the area of the responsible local social services authority within the meaning of section 34(3) above is situated;

(c) a qualifying patient falling within subsection (2)(c) above is to be regarded as being in the territory in which the responsible hospital is situated;

(d) a qualifying patient falling within subsection (3) above is to be regarded as being in the territory determined in accordance with arrangements made for the purposes of this paragraph, and published, by the Secretary of State and the Welsh Ministers.

130D Duty to give information about independent mental health advocates

(1) The responsible person in relation to a qualifying patient (within the meaning given by section 130C above) shall take such steps as are practicable to ensure that the patient understands—

(a) that help is available to him from an independent mental health advocate; and

(b) how he can obtain that help.

(2) In subsection (1) above, “the responsible person” means—

(a) in relation to a qualifying patient falling within section 130C(2)(a) above (other than one also falling within paragraph (b) below), the managers of the hospital or registered establishment in which he is liable to be detained;

(b) in relation to a qualifying patient falling within section 130C(2)(a) above and conditionally discharged by virtue of section 42(2), 73 or 74 above, the responsible clinician;

(c) in relation to a qualifying patient falling within section 130C(2)(b) above, the responsible local social services authority within the meaning of section 34(3) above;

(d) in relation to a qualifying patient falling within section 30C(2)(c) above, the managers of the responsible hospital;

(e) in relation to a qualifying patient falling within section 130C(3) above, the registered medical practitioner or approved clinician with whom the patient first discusses the possibility of being given the treatment concerned.

(3) The steps to be taken under subsection (1) above shall be taken—

(a) where the responsible person falls within subsection (2)(a) above, as soon as practicable after the patient becomes liable to be detained;

(b) where the responsible person falls within subsection (2)(b) above, as soon as practicable after the conditional discharge;

(c) where the responsible person falls within subsection (2)(c) above, as soon as practicable after the patient becomes subject to guardianship;

(d) where the responsible person falls within subsection (2)(d) above, as soon as practicable after the patient becomes a community patient;

(e) where the responsible person falls within subsection (2)(e) above, while the discussion with the patient is taking place or as soon as practicable thereafter.

(4) The steps to be taken under subsection (1) above shall include giving the requisite information both orally and in writing.

(5) The responsible person in relation to a qualifying patient falling within section 130C(2) above (other than a patient liable to be detained by virtue of Part 3 of this Act) shall, except where the patient otherwise requests, take such steps as are practicable to furnish the person (if any) appearing to the responsible person to be the patient’s nearest relative with a copy of any information given to the patient in writing under subsection (1) above.

(6) The steps to be taken under subsection (5) above shall be taken when the information concerned is given to the patient or within a reasonable time thereafter.”

(3) In section 134 (patients’ correspondence), in subsection (3A), for paragraph (b) substitute—

“(b) “independent advocacy services” means services provided under—

(i) arrangements under section 130A above;

(ii) arrangements under section 248 of the National Health Service Act 2006 or section 187 of the National Health Service (Wales) Act 2006; or

(iii) arrangements of a description prescribed as mentioned in paragraph (a) above.”’.—[Ms Winterton.]

Brought up, and read the First time.

With this it will be convenient to discuss the following:

Amendment (a) to the proposed new clause, after paragraph (1),  insert—

‘(1A) The appropriate national authority must ensure that help under arrangements made under subsection (1) is available to a qualifying patient from the point at which he undergoes any assessment for the purposes of this Act.’.

Amendment (b) to the proposed new clause, in new section 130C(3)(b), at end insert

‘, or is admitted to, or remains in, a hospital, or registered establishment in pursuance of such arrangements as are mentioned in section 131(1).’.

Amendment (c) to the proposed new clause, after new section 130C(3)(b),  insert—

‘(3A) A patient is also a qualifying patient if he is about to undergo, or has undergone, any assessment for the purposes of this Act.’.

Government new clause 5—Independent mental capacity advocacy service: exceptions.

New clause 15—Treatment requiring consent (period of time since administration of treatment)

‘(1) Section 58 of the 1983 Act is amended as follows.

(2) In subsection (1)(b) leave out “three months” and insert “two months”.’.

New clause 17—Nomination of carer as nearest relative

‘(1) The 1983 Act is amended as follows.

(2) After section 26(4) insert—

“(4A) Where a person has made an advance nomination with regard to the choice of a relative or other person to be his nearest relative, his nearest relative shall, subject to the power of the court under section 29 to appoint an acting nearest relative, be determined by giving preference to that choice.

(4B) “Advance nomination” means a nomination made by a person (“P”), after he has reached 18 and when he has capacity to do so and in contemplation that he shall become subject to any act or decision exercisable under the provisions of this Act that his choice of nearest relative shall take precedence over the provisions of subsection (3).

(4C) For the purposes of subsection (4B) P’s nomination must be his carer as defined by section 1(1)(a) of the Carer’s and Disabled Children Act 2000.

(4D) For the purposes of section (4B) nomination cannot be made or withdrawn if P is subject to an order under this Act.

(4E) An advance nomination is not valid if P—

(a) has withdrawn the decision at a time when he had capacity to do so, or

(b) has done anything else clearly inconsistent with the advance nomination remaining his fixed decision.

(4F) An advance nomination is valid only if—

(a) it is in writing,

(b) it is signed by P or by another person in P’s presence and by P’s direction,

(c) the signature is made or acknowledged by P in the presence of a witness, and

(d) the witness signs it, or acknowledges his signature, in P’s presence.

(4G) The court may make a declaration as to whether an advance nomination—

(a) exists; and

(b) is valid.”.’.

Amendment No. 104, in clause 23, page 15, line 27, leave out ‘or’.

Amendment No. 105, in page 15, line 29, at end insert—

‘because his appointment poses a risk to the health or well-being of the patient; or

(f) that in the reasonable opinion of the patient the person is not appropriate.’.

Government amendments Nos. 51 to 58, 60 to 66 and 68

It is a pleasure to report back from the Committee after our extensive debates. It is particularly pleasurable to start with this group of amendments, as the amendments that we have tabled on advocacy are in response not only to what was said in the other place and in the detailed discussions that we had in Committee, but to the many representations that we received from organisations that have an interest in people with mental health problems having access to advocacy.

Government new clause 3 and Government amendment No. 66 provide for advocates to be available to patients detained in hospital for assessment or treatment, to community patients and to patients subject to guardianship. In the other place and in Committee, the issue was raised of specialist advocacy for black and minority ethnic patients, child patients and patients with learning disabilities. My hon. Friend the Member for Hackney, South and Shoreditch (Meg Hillier) spoke in Committee of the great benefit of specialist advocacy for patients for whom English is not their first language. The need for specialist advocacy is the reason that we have included a regulation-making power that will allow us to make different provisions for cases when it comes to the training requirements for advocates.

As was pointed out in Committee, patients must know that they have a right to advocacy. We have provided for them to be told orally and in writing. In addition—I know this will interest the hon. Member for Tiverton and Honiton (Angela Browning)—Government amendments Nos. 52 and 61 amend the Mental Capacity Act 2005 and give the person deprived of liberty or their representative the statutory right of access to an independent mental capacity advocate to explain to them the authorisation for the deprivation of liberty and to provide support with a review or with an application to the Court of Protection. Again, these Government amendments, which reflect representations made to us, also ensure that both the person and their representative are told about the IMCA service.

My right hon. Friend mentions the existence of independent mental capacity advocates under the 2005 Act; now we are to have independent mental health advocates. Can she assure the House that they will effectively be the same bodies of advocates, with common training and arrangements?

My hon. Friend is right to raise that important issue. We believe that there is scope for advocates, if they wish, to receive training in both areas. Naturally, some people will perhaps wish to specialise. He is probably aware that the pilot training for IMCAs is already under way, but there would not necessarily be any problem with people being able to specialise in both areas.

I apologise for coming late to the subject. I was not a member of the Public Bill Committee, so this matter may have been discussed already, but will the advocates be funded from the Minister’s budget or from the Ministry of Justice’s budget, or will they be paid for by the people for whom they will provide representation? It seems a little unclear.

I can assure the hon. and learned Gentleman that they certainly will not be paid for merely by the people who need to use them. They will be paid for by the supervisory body—whether that is the local authority or health authority will depend on the IMCAs and, in a sense, those for whom they are to be used. In the case of mental health advocates and mental capacity advocates, individuals will not be expected to pay for them.

I have today received an e-mail from Mental Health Matters, a charity in Bridgend that provides a community advocacy service. One of the things that it welcomed was this provision and this change on the part of the Government. In particular, it has written to say that it is an important change, which it welcomes, but that it is having difficulty in getting the local trust and the local authority to fund its community advocacy service. Does my right hon. Friend agree that it is important that the voluntary sector is approached in providing such services, as it gives confidence to many users of mental health services that advocacy is independent and works in their best interests?

My hon. Friend is right. During debates on the Mental Capacity Bill, we were able to give assurances that we saw an important role for the voluntary sector in such instances because that sector often has such expertise. One thing that we hoped would flow from our taking statutory powers in this sense would be the ability to ensure that a number of voluntary organisations would have access to some of those streams of funding, particularly because such organisations are often seen as independent and as having quite a lot of expertise already. There is no point in reinventing the wheel in some of these cases, but we need to ensure that the organisations have proper training. That is why, through some of the IMCA pilot sites, we have been ensuring that that takes place.

We would like to ensure that the advocacy services are delivered in the most appropriate way. If there is a need for privacy to form a part of the service, that would be expected to be the case. I take on board what the hon. Lady says. However, we would have to be careful not to give the impression that every interview had to be held in private in case that was not appropriate for an individual, for example if it caused them distress. It is right to say that we should think about ensuring that privacy is provided wherever possible. Perhaps we could take the subject away and consider it in respect of such issues as the code of practice in both instances, as well as the importance of training in that area.

It seems to me implicit in new clause 3 that an advocate should be able to speak with the patient, and should perhaps therefore be able to speak another language. Will my right hon. Friend explain her views on bilingual advocacy? It is not the same as having advocates with translations. I appreciate that it would be difficult to make an open-ended commitment to ensuring provision in every language spoken by people in my constituency, but for an advocate truly to understand the case—and this is stressed by Derman, a Turkish and Kurdish advocacy service in my constituency—they need to understand the cultural implications of someone’s background.

That is exactly why, as I have said, we have included in the power relating to regulations the ability to consider the issue of specialist advocacy; that will cover exactly those points.

Further to what the Minister has said, would advocates in Wales be treated as working for a public body, as defined by the Welsh Language Act 1993?

That is something that the hon. Gentleman will need to take up with the National Assembly for Wales. Obviously, some of those matters will be devolved. The Bill enables powers to be taken, but some of the implementation, particularly with regard to specialist advocacy, may well be covered by the Assembly.

Section 40 of the Mental Capacity Act 2005 provides that an IMCA is not required to be appointed in certain specified situations. Government new clause 5 and Government amendments Nos. 62 to 64 and 68 would limit the exceptions under section 40. Where someone has been appointed for matters related to property and affairs, the appointment will no longer preclude an IMCA from being instructed for health and social care matters.

I want now to turn to the amendments tabled by the hon. Member for Romsey (Sandra Gidley), which would make changes to the Government new clause requiring advocates to be made available to patients who had not yet been detained for the purposes of assessment or treatment, and for child in-patients who were not subject to detention. I completely understand her concerns, but we need to target resources at the most vulnerable. We do not agree that it is necessarily either appropriate or workable to provide advocates to people who have not yet become subject to an application for detention, or who are not being treated under the Mental Health Act 1983, except in the specific and limited circumstances that we have set out. We must prioritise, and we believe that we have identified the priority group.

There are also links between some of the nearest relative provisions and our intentions in introducing advocacy; I know that my hon. Friend the Member for Birmingham, Selly Oak (Lynne Jones) sees the nearest relative as being, in a way, the patient’s representative. The aim of new clause 17 and amendments Nos. 104 and 105, tabled by my hon. Friend, is to provide patients with the opportunity to have their carer appointed as their nearest relative, and to extend the grounds on which they can apply to displace a nearest relative.

That is an issue about which there were lengthy debates in the other place, particularly about whether a patient should be able to choose their nearest relative. Those debates continued in Committee. I considered the matter extremely carefully, because I can understand the intuitive sense that it is the right approach.

Having looked at it, however, I came to believe that it would be inappropriate to make the kind of changes that my hon. Friend the Member for Birmingham, Selly Oak is suggesting—so that someone could choose a nearest relative in the same way as they would choose a direct representative or a next of a kin. We need to start from the position that the nearest relative has very particular powers under the Bill, some of which are quite specific, in respect of preventing detention and applying for discharge.

In some of the earlier discussions on this Bill, and on previous Bills, we talked about nominated representatives, but carers groups expressed concerns particularly about the displacement of a nearest relative, which could have an effect on carers that many of us know all too well. When a person becomes extremely ill and feels that the nearest relative has the power to block detention or to discharge, it becomes too easy for that person to think that that is precisely what they should be doing. That can put many people in a difficult position. We need to realise that this is a sensitive issue.

I hope that the Minister realises that the issue is also very sensitive in the other direction. Many “revolving-door” patients of mental health institutions—that is not a very nice term, but it is one that we grew used to in Committee—sometimes feel that they want to change their nearest relative without having to go to the court and give lengthy and complex arguments why they should be able to do so. I hope that the Minister understands that, too.

Of course I understand that, and I know that my hon. Friend is concerned about this particular issue. As I said, I examined it very closely and asked my officials to see whether there was a way of trying to accommodate that development. Let me set out some of the reasons why we decided that there was a real difficulty with such a provision.

If we allowed an automatic right to appoint the nearest relative in advance, to comply with the European convention on human rights it would be necessary to set up a system by which nominations could be ratified by an independent process with a suitable mechanism for appealing decisions. There is no existing body that could do that; we would have to set up a new body, whereas at the moment we take such issues to the county courts. We would still need a process by which to make that happen. For example, we would need to be able to allow a nearest relative who was being displaced to appeal if they felt that it was the wrong approach.

I understand the argument that it would be possible for someone to nominate a person in advance when they were not subject to the legislation—that is, when they were not in a detained situation—in anticipation of being detained, but for ECHR compliance it would be difficult to have one system for people who were not detained and a completely different system, under which people had no access to that right, when they were being detained. Restricting the provisions to carers alone would also have particular problems.

Amendment No. 105 would add another ground on which applications could be made to displace the nearest relative—

“that in the reasonable opinion of the patient the person is not appropriate”,

and would also amend ground (e) in clause 23(5). I understand the concerns expressed about the Bill’s new ground of being “not suitable”. For the first time, patients can apply on those grounds and say that they believe that their current nearest relative is not suitable. Concerns have been expressed about whether the provision would cover situations where patients have no real relationship with their nearest relative. Although it is important that the courts look at each case on its merits, we intend the idea of unsuitability to cover situations where there is no effective relationship between the patient and their nearest relative, or where the relationship has broken down irretrievably.

Given the other changes that we are making, we believe that our proposals cover some of the problems highlighted by my hon. Friend the Member for Birmingham, Selly Oak in amendments Nos. 104 and 105. We shall continue to hold consultations about the code of practice and I am happy to include my hon. Friend in them, as I know she is particularly concerned.

I will in a second.

The changes we are making to the Bill give patients a new right to apply to the court for displacement. They will then be free to nominate anyone they want as their replacement nearest relative. As long as the court finds that person suitable and they are willing to act, they will be appointed. As well as that new right, we have provided that the involvement of carers and others with the patient must be addressed as part of the fundamental principles. That meets the fear that people might be excluded. Based on the principles, the code will make it absolutely clear that the nearest relative is not meant to replace the patient’s next of kin, so their appointment does not prevent other people nominated by the patient from being contacted or appropriately involved in decisions about care and treatment.

The Mental Health Act 1983 provides that hospital managers have a duty to advise patients of their rights, including providing all patients with information about how to apply to the county court. I think that my hon. Friend the Member for Birmingham, Selly Oak, and some members of the Committee, were concerned that people would have to go through a cumbersome process, so we shall ensure that patients are advised of their rights and training is given to ensure that those who inform and advise patients understand the new rights properly. In our meetings with the new mental health coalition, concerns were raised about the provisions, so we have looked at matters closely and considered production of a user-friendly guide to applying to the county court.

New clause 15 relates to the three-month rule under section 58 of the Mental Health Act 1983, and would reduce to two months the period after which the section applies. The section requires that if a patient refuses consent, or cannot give consent, a SOAD—second opinion appointed doctor—should certify that the treatment is appropriate and should be given. My noble friend Lord Hunt said in the other place, and I reiterated in Committee, that we continue to believe that the three-month period remains appropriate. The 1983 Act contains a power, in section 58(2), to reduce the period by order, so we can already go forward on that basis. However, we feel it would be more appropriate to do so after consultation, so that we can proceed based on evidence, and at a manageable and sustainable pace. At this stage, we do not think it right to change that existing power without undertaking proper consultation and without ensuring that we can deliver on it.

To pre-empt the new clause that I shall propose in a minute, may I ask the Minister: has not the power to vary the term been in the Act since 1983? The Government said that they would look at it, but nothing has been done for 24 years. Why is the Minister so convinced that the three-month term remains appropriate? She has not made the case.

There is no evidence to support the proposition that the period is too long. Of course, I am aware of comments made by the Mental Health Act Commission and the Joint Committee on Human Rights, but those opinions do not constitute evidence that three months is not the most appropriate period for the SOAD to assess a patient’s medication for the first time and, with the approved clinician in charge of treatment, to identify whether changes should be made to the ongoing treatment plan. As I said in Committee, the High Court has recently refused leave for a judicial review of the compatibility of the three-month period with the European convention on human rights, so it is not outside the ECHR. We do not believe that there is evidence for changing the period, and that is why we do not accept the need to do so.

Most of all, the power exists already, and we would use it only after proper consultation with clinicians and others to decide whether it was an appropriate time to use it. Otherwise, it could become a completely unmanageable and unsustainable change.

I will give way to the hon. Gentleman, but I am sure that we will hear his arguments in full before too long.

Absolutely, and I shall try to make them brief.

If the Minister is to be consistent, why was it appropriate in the 2004 draft Bill to set up the tribunal system, which has now been dropped, which would have reviewed the case after not three months or two months, but 28 days?

As the hon. Gentleman knows, a number of changes were suggested in the draft Bill, but it was rather heavily criticised by the pre-legislative scrutiny Committee, of which he was a member, for being lengthy and complex, and for making many commitments that would involve financial considerations that could not necessarily have been delivered. We responded to many of the Committee’s points by introducing a short amending Bill to amend the 1983 Act.

If the hon. Gentleman is happy to enter such a commitment, involving a number of changes and commitments, both managerial and financial, I am sure that his Front Bench will be behind him. However, I urge him, when talking to his shadow Chancellor and the rest of the gang, to make it clear what such a commitment would mean. I also urge him to ensure that he is absolutely convinced that the right evidence exists to make such a commitment. We do not believe that it does.

I apologise to the right hon. Lady that I was not here for the start of her remarks. I have no wish to be curmudgeonly or uncharitable, but I am conscious that new clause 3(2) and (7) refer to the order-making power and the different regulations that will flow from that. Can the right hon. Lady assure me that we will have sight of at least a draft of the intended regulations before the ultimate passage of the Bill? Otherwise, with the best will in the world, we are being asked to opt for, and to be content with, a pig in a poke. We need to see the detail before we vote for the legislation.

I am astonished that the hon. Gentleman refers to our Bill, which has been through such distinguished discussions, as a pig in a poke. I am sure that his Front Bench will have something stern to say about that. I hope that I can reassure him that we will continue to consult fully on the Bill, particularly on some of the regulation-making powers, not only through the procedures of the House but with clinicians and others who have shown an interest. We are anxious that the implementation be effective, so we will continue to discuss that.

I stress that the advocacy amendments were tabled by the Government very much in response to points made in the other place, in Committee and by a number of organisations about this important issue. I am glad that we have been able to debate those as part of the first group of amendments, and I urge the House to support them.

I ask the hon. Member for Romsey not to press her amendments, because it is important that we consider where our resources are best used, and her proposals would not be practical. My hon. Friend the Member for Birmingham, Selly Oak is right to raise the issues that she does, as they are important, but to try to make some of the changes proposed would involve real problems. I undertake, however, to consider some of the issues in relation to the code of practice, and I hope to address the concerns raised. I urge the hon. Member for East Worthing and Shoreham (Tim Loughton) to withdraw his new clause, for the reasons that I have outlined.

I want to comment on two aspects of this group. First, I want to pose some questions to the Minister about advocacy. Clearly, that part of the Bill is completely new. It is a welcome new addition, but it is a reappearance, because advocacy services were promised by the Government in the 2004 draft. That was very much welcomed by the pre-legislative scrutiny Committee, which raised practical questions with the Minister about it. She has now included the provision, but it could have been included in the first place, which would have enabled the Committee to consider the finer print, and saved us further debate here.

Advocacy is essential in three main areas: to ensure a statutory right to an independent mental health advocate for all patients subject to compulsory powers; to make patients aware of that right, which the Minister has touched on; and to ensure, as my hon. Friend the Member for Tiverton and Honiton (Angela Browning) pointed out, that patients have a right to meet their advocate in private. Those are fundamental human rights that should be made available as part of the service.

The advocates will be essential, providing support to vulnerable people in exercising their rights to appeal against decisions made for their treatment or confinement: for example, as a way of communicating their interests when they may lack capacity to do so for themselves. That service should be provided, particularly for the most vulnerable patients, and prioritised at the point of crisis. The issue of the availability of culturally competent advocacy has also been raised. In particular, the black and minority ethnic mental health communities have pointed to the importance of suitable advocacy for their members.

The pre-legislative scrutiny Committee questioned the Minister’s estimated costings. The regulatory impact assessment estimated the whole-time equivalent of 140 advocates at a cost of approximately £5 million. We seriously questioned whether the Minister had made a very conservative and inadequate estimate. We need to be convinced that the service will be workable, viable and sustainable, not just a token effort to make available a few—but not nearly enough—advocates. Has the Minister reviewed the costings?

I raised the issue of common advocacy standards, training and arrangements with independent mental capacity advocates because I hoped that that would enable us to ensure that the costs were proportionate and affordable.

The hon. Gentleman has raised that issue before, and has been a big advocate of advocates for some time. The point he makes is right. It also touches on how the advocates should be overseen and quality-controlled. Again, the pre-legislative scrutiny Committee suggested that the Mental Health Act Commission should be engaged to set the standard for the advocates. If we are to have advocates, we need to ensure that they know what they are doing, and are of a sufficient standard to do what can be a technical job dealing with technical parts of the law, as all of us who have been involved with the Bill for some years, and on the Committee for the past few weeks, know.

What has been learned from the Mental Capacity Act 2005 about the use of advocates? I know, from when the Minister and I discussed a statutory instrument to extend the pilot for advocates provided under that Act, that they have gone down well. At that time I raised the great inconsistency: if they worked well for people covered by that Act, why on earth were we not having them in this legislation—as we now are? I should like to hear some comments on that. We support what the Government are introducing, and merely question whether the measure is sufficiently resourced and structured for it to be as successful as we all want it to be. However, I certainly commend the Government for introducing it.

The Minister pre-empted some of my comments on new clause 15, although she did not answer my questions about it, which I fear was also the case when we raised the subject in Committee. This is important because it is all about respecting the wishes of vulnerable patients and considering the effect of treatment on them, giving them an opportunity to engage in their treatment, and ensuring that there are thorough checks and balances so that people with serious medical conditions get the right medical treatment. Given the serious effects of medication and the possibility of patients being given too high a dose without their consent, even despite their active opposition to medication, we must ensure that we get it right.

As the Minister said, the new clause would amend section 58 of the Mental Health Act 1983 by reducing from three months to two the time before a second medical opinion is required for medication. The Joint Committee on Human Rights—its Chairman is not in the Chamber, but I am sure that he will be joining our deliberations because he has tabled later amendments—proposed that the time should be reduced from three months to one. We are proposing a compromise, as we did in Committee, to reduce it from three months to two months in stages. The Joint Committee had serious concerns, which again the Minister has not allayed.

The second opinion appointed doctor will assess types of medication, the doses of medication and the combination of different medications. We are talking about powerful chemical cocktails. They have the capacity to bring about serious side effects, such as obesity, diabetes, impotence and movement disorders. It is essential that we take the patient’s feelings into account and ensure that we have good practice.

We also made the case in Committee that patients in that condition should be subject to more regular physical health checks for their own benefit, simply because of the physical effects that many of the powerful drugs have on them. We are joined in that request by the Mental Health Act Commission, which has raised on several occasions, and in at least two of its reports, its concerns about how the period of three months works in practice. In its last biennial report, for 2003-05, it said:

“Too many patients feel that they are excluded from decision making and the exercise of choice in their hospital treatment and unable to discuss their subjective experiences of therapeutic effect or adverse side-effects. This is likely to exacerbate the likelihood of non-compliance after discharge and may contribute to the problems of revolving-door readmissions”.

It is not good for patients’ therapy or recovery to feel excluded in that way.

The MHAC says that when visiting hospitals it has found that medical treatment is a key issue for patients, and it often receives complaints about it. In its most recent report it listed complaints about, for instance,

“No record of discussion with patient regarding proposed treatment...No record of assessment of patient's capacity to consent to treatment... Patients telling visiting Commissioners that they are not happy taking their medication”.

As the Minister knows, a patient’s diagnosis is not straightforward and may change several times over a period of detention. We think that three months of being treated without consent, or with a lack of capacity to consent to treatments that may be causing harm, is simply too long. In 2004-05, 18 per cent. of patients’ plans were changed as a result of SOAD intervention, but as the MHAC reported, that is not an accurate indicator of the importance of the role.

There is an extra incentive for doctors to get it right. As the MHAC says,

“the SOAD provides a check on the RMO’s practice”

—“RMO” stands for “registered medical officer—

“and by the very nature of the oversight provided by the Second Opinion ensures that RMOs give careful thought to their decisions. We believe that if this provision had not been available there would have been no check on the appropriateness of treatment, and many more treatment plans could have been the subject of formal complaint.”

The Minister has already taken up my point that the 1983 Act provides a power, under order, to vary the time. We have had 24 years in which to do that, but it has not been done. The MHAC says

“We believe that the current Act provides insufficient protection to patients in the first three months of their treatment under detention, when they may be forcibly given medication in doses or combinations that are outside of product guidelines and recommendations without the oversight of a Second Opinion Appointed Doctor. Some RMOs appear to share our unease: we receive…occasional requests for statutory Second Opinions in relation to such patients”.

The Minister addressed that point a moment ago without answering it, or at least, she answered it completely the wrong way. She said that the Government agreed with those concerns, and that that was why tribunals that they had intended to establish under the draft Mental Health Bill of 2004 would have had power to step in after 28 days. This is nothing to do with cost-effectiveness, or with our practical complaints that people were not available to man the tribunals. The principle was that the conditions should be examined after 28 days. Our complaint was that the mechanics would not be practicable. If the principle was right then, why are the Government reverting to a three-month period? That is the question that the Minister has not answered.

In Committee, the Minister said that the system would be too bureaucratic and might involve up to 8,000 more SOAD hours. There would be a big cost and resource implication. Mat Kinton is undertaking further research for the MHAC, which is not yet finished but is soon to be published. We have been given permission to quote from it. Mr. Kinton conducted a survey of the 14,574 patients detained at 31 March 2006, just over a year ago. He was able to examine just over 81 per cent. of them in detail. Working on the Government’s figures, he established that if the three-month rule had been a two-month rule, 3,598 patients, or 30.5 per cent. of the total number admitted to hospital under Mental Health Act powers, could have received a second opinion. That is an additional 337 opinions and an increase in second-opinion activity of slightly over 10 per cent., which amounts to nothing like 8,000 additional SOAD hours.

I believe that the Government’s estimates are woefully wrong. I am surprised that the Minister has not been contacted the MHAC, given the serious concerns that it has raised on a number of occasions. The Minister’s figures are wrong; but, more importantly, the principle that someone should not be forced to wait for three months on medication that may not be appropriate—regardless of the physical, let alone the mental effect—is fundamentally wrong.

Our suggestion is not radical; it is a compromise solution—to reduce the period from three months to two months. Many people think that the period should be shorter than that. It is a practical suggestion and, more importantly, it addresses the principle of respecting the wishes of people with mental illness. It makes sure that they are engaged properly in their treatment, rather than potentially cut adrift from having any say in it for three months until a SOAD is appointed. On that basis, I am minded to press our new clause to a Division at the appropriate time, rather than to withdraw it as the Minister requested.

In speaking on advocacy, I should declare an interest. I am honorary president of the Advocacy Services in Staffordshire, or ASIST.

I warmly congratulate the Minister on the work she has done on advocacy between the Committee and Report stages. She gave an assurance in Committee that she would bring this matter back to the House and she has done so; that is welcome. I said in Committee that it was untenable for us not to have a system of advocacy for mental health patients when we have now accepted advocacy for mental capacity cases. The wording of the new clause closely follows the wording on advocates in the Mental Capacity Act 2005, which shows that synergy. My earlier intervention on the Minister was intended to be helpful. I said that there might be common standards, training and systems of maintaining advocates in order to keep the costs of both systems at a reasonable level.

Advocacy is to be welcomed because patients can find it disempowering enough to have to face the panoply of the mental health system when in need of help, but when faced with professionals such as a consultant psychiatrist or a range of people with other mental health expertise—perhaps social workers, too—it can also seem that the balance of power is wrong. The beauty of the advocacy system is that it enables someone to stand shoulder to shoulder with the patient in putting their case. It can enable the patients themselves to say exactly what they want, and if they are unable to do so it enables the advocate to speak up on their behalf and to make sure that their voice is heard in deliberations and planning.

Does my hon. Friend agree that advocacy is not just about helping the patient from a health point of view, but that there might also be legal implications which it is important that somebody present addresses in order to prevent the patient from ending up unprotected in a court situation?

I agree, but as we found in debating and amending Acts such as the original 1983 Act, legal issues can be difficult and complex. The advocates we are talking about are citizens’ advocates rather than lawyers, who are advocates who understand the law. Sometimes, an important part of an advocate’s role is to make sure that the legal interests of a patient are presented and studied by an independent lawyer.

I especially welcome the Minister saying that when the advocacy system is in place there will be full information for patients about the availability of the scheme, and full training on advocacy for staff in mental institutions and in the community who provide mental health services so that they can make sure that people receive their entitlements and rights.

This is such an important change from the Bill in its original form that I hope that it will also help us to overcome some of the objections raised in the other place about other parts of the Bill. When we are sure that patients are as protected as possible by a system of advocacy, some of the objections debated in the other place can fall away.

My right hon. Friend the Minister said that she was not minded to agree to amendments to new clause 3 to do with children and advocacy. That is disappointing, and I hope that the Minister will say that she will at least keep the door open for that to happen later.

On another area of law, I chair the all-party group on looked-after children and care leavers, and I know just how vital it is for those vulnerable children to have access to advocacy. They do not yet have universal access—access is provided only in certain specified circumstances—and I want to argue for their having it. Similarly, children who are patients in the mental health system are particularly vulnerable, and I hope that they, too, can have universal access to advocacy.

Does my hon. Friend agree that many of the people who suffer from anorexia and bulimia are often quite young and need support, which has not been forthcoming? We should therefore consider them just as seriously, because this is a somewhat new area of endeavour.

Indeed, and as I explained on Second Reading, a hospital in my constituency specialises in eating disorder cases, and some of the children who attend it are extremely young. In Committee, we debated age-appropriate facilities for children, and learned of a child as young as 10 who was in very inappropriate accommodation when receiving in-patient hospital treatment. So yes, those children can be very young and very vulnerable.

I want to say a little about nearest relatives and carers. Between consideration in Committee and today, my right hon. Friend the Minister and I corresponded on this subject, and I am disappointed at not having made any progress. There is one issue that I would like to bring to the head of my wish list: I want the Minister at least to look again at the definition of a carer. At the moment, we are reliant on the 1983 Act, which says that a carer is somebody who has been caring for five years, which then gets them on to the nearest relative list. If they are living with the patient at the time that such services are required, they can go to the top of that list. However, the position of carers has moved on a long way since 1983. Since then, there has been a Labour Government—since 1997—and we have the country’s first ever national strategy for carers and the first dedicated funding for carers, rather than for the people whom they care for. We have also established for the first time an entitlement for a carer to have an assessment of their needs, rather than of the person whom they care for.

So the definition of a carer today is very different from simply being someone who has lived with a person for five years. Of course, many carers do not live with the person whom they care for, even though they are their full-time carer, so I would argue that we still need to look at the definition of carer. I understand why my right hon. Friend the Minister is not attracted to new clause 17, but it does at least bring up to date the definition of a carer, in line with the legislation introduced in 2000, which is the latest to deal with carers.

I turn to my final point on the ability to nominate someone to be the nearest relative. I have read the correspondence that my right hon. Friend sent to me and I accept all the arguments, but I ask whether there is one last option—one quite similar to that given in a briefing that we received from the Law Society. Here, I should declare another interest as a non-practising solicitor. If the person in question could nominate from a closed list, rather than an open one, would that get round the problems associated with the European convention on human rights that my right hon. Friend mentioned? If the closed list could simply be the nearest relative list with an updated definition of a carer included, could not the person in question—when they are not subject to the powers under the 1983 Act—at least nominate somebody from that list in order to bring them to the top of it, rather than somebody who is completely outside that list? That is my last suggestion for the Minister, and I hope that it is of some help.

It would be churlish of me not to welcome the Government new clauses and amendments. As the Minister suspected, amendments (a) to (c) to new clause 3 are an attempt to see whether she can be pushed just a little further. I take on board the points made about resources. Indeed, a briefing from the NHS Confederation, which most Members present today will have received, raises concerns about the resourcing of this service, and points out that patients have to know about its availability. So I take on board the point that we should see how things progress and then potentially go further.

I shall briefly outline why it was important to table the amendments. I am sure that the Minister is aware that a disproportionate number of black and minority ethnic people are sectioned. It is a particular problem for the Afro-Caribbean community, which experiences more instances of over-medication, misdiagnosis and control and restraint. They are more likely to be detained as long-term patients, which increases the need for access to advocates before sectioning. That is the driver behind amendments (a) and (c).

In Committee, the Minister glossed over my comments about a race equality impact assessment for the Bill. It is not enough to assume that all will be treated equally under the Bill, because that does not happen at the moment and there is nothing in the Bill to suggest that it will change matters. If one section of society has different outcomes, that is a problem that needs to be addressed in some shape or form and the amendments are an attempt to address it.

There has been a history of misunderstanding and discrimination against black and minority ethnic people, resulting in the death of several Afro-Caribbean service users under the care of the mental health system. The most famous case is that of David “Rocky” Bennett, which was the subject of an independent inquiry by Norfolk, Suffolk and Cambridgeshire health authority. The inquiry’s report made 22 recommendations. The key underpinning theme of those recommendations was that there should be ministerial acknowledgement of the presence of institutional racism in the mental health services and a commitment to eliminate it. It is never pleasant to have to admit something like that, but the figures speak for themselves.

A study has also found that there are circles of fear that stop black people from engaging with services. They do not access help early because they are concerned about what will happen to them. The study found that Afro-Caribbeans were often not treated with respect and the services were not accessible, welcoming, relevant or well integrated with the community. The way in which Afro-Caribbean people enter mental health services is problematic and influences the nature and outcomes of treatment.

Most importantly, different models of description of mental illness and other people’s philosophies or world views are not understood or even acknowledged. That is a double-edged sword, because the flipside is that the concept of culture has been used to attempt to address some of those issues, but it can also divert professionals from looking at the patient as an individual, with their own characteristics, history and needs. Assumptions can be made on the basis of race, and that is wrong.

Those and other findings were supported by the “Inside Outside” report and the “Breaking the Circles of Fear” report. A recent Mental Health Act Commission census also backed them up. The amendments attempt to address some of the problems, because if advocacy is available at the beginning of the process, an appropriate advocate could be found who could ensure fairer treatment.

The Minister was concerned about the overall financial impact of the amendments, but if she is serious about addressing the problems of racism, she could consider a pilot scheme in a relevant area to see whether structured access to advocacy services and greater cultural awareness help to break down some of the barriers and reduce the statistics. I hope that the Minister will look into that—

As the hon. Lady will know, Rocky Bennett was in a certain unit in my constituency. How would advocacy have helped in the situation on that Saturday night?

I do not want to go into individual cases. The example that I cited was not the best example of the effect of a lack of advocacy services at the beginning because there was clearly a mental health problem in that case. I raised that case, however, because of the report that highlighted the problems experienced by many service users. It is fair to say that several Afro-Caribbeans would not be sectioned or subjected to electro-convulsive therapy if there was more understanding of their culture and needs.

I will not press amendments (a) and (c) to new clause 3 to a Division because of the wider implications, but I hope that the Minister will take on board the nature of the specific problem and bring something forward to move us in a fairer direction in the longer term.

Amendment (b) to Government new clause 3 would do something similar for children by extending the terms of the measure to make mental health advocacy available for all children who are voluntary patients, rather than just children liable to detention, or for whom ECT is being contemplated. I do not buy into the Minister’s argument about resources because estimates show that the measure would probably affect only 650 children a year, or one in each constituency. The numbers are not high, yet we should provide an extra safeguard for those children. It must be terrifying for a child to be admitted to an in-patient unit, especially, as is frequently the case, if their relationship with their parents has broken down. An advocate would be someone other than a parent, carer or clinician who could not only communicate with the child, but communicate that child’s interests and ensure that there was a right of appeal.

Children can overturn parental responsibility only through a court order, so the system is completely stacked against them. We are talking about only a small number of people, yet they are vulnerable and at a crucial time of their lives, so although the Bill does much to improve conditions for children, I urge the Minister to think again on this matter. Given that I have heard supportive comments from Labour Members, I am minded to press amendment (b) to new clause 3 to a Division.

Like everyone who has spoken, I warmly welcome the Government new clauses and amendments and the increased safeguards for vulnerable people that will be introduced through the arrangements for advocacy. The new clause and amendments that I have tabled would improve the arrangements by which the nearest relative could be displaced, if necessary. The Bill contains a measure that allows for that, but it is problematic because it requires a patient to go to court and due to the grounds set out on which a nearest relative may be displaced.

New clause 17 is based on an amendment tabled in Committee by my hon. Friend the Member for Stafford (Mr. Kidney). It would avoid court proceedings by allowing a patient to give an advance directive of the name of the nearest relative. As my right hon. Friend the Minister said, the appointment of the nearest relative is extremely important. However, as my hon. Friend the Member for Stafford pointed out in Committee, there is all too often no nearest relative who is willing to perform that role. If someone suitable is available, it is thus important that it is as easy as possible for a patient to appoint that person as the nearest relative.

My new clause differs somewhat from the original measure tabled by my hon. Friend because I have attempted to address several concerns expressed by the Government. I realise that it would not be appropriate to allow frivolous changes or appointments of the nearest relative, so my amendment would confine the appointment or changed appointment as the nearest relative to the carer. As my hon. Friend the Member for Stafford pointed out, a carer is someone who is not living with the patient, but who has their best interests at heart, spends a great deal of time with them and knows their case, and is someone whom the patient can trust.

At various meetings, we have had put to us examples of people who have no contact whatever with their relatives, but who would find the prospect of a court process to displace them somewhat daunting. I am disappointed that the Government cannot find a way to make provision that enables the nearest relative to be changed without going to court, although I am pleased by the Minister’s assurance that she intends to make the system as user friendly as possible. Of course, it is not necessary for the patient to take the action themselves; they can be supported in doing so, or the process can be carried out on their behalf.

Amendments Nos. 104 and 105 are designed to make it possible to seek displacement on broader grounds than the Bill allows. The Joint Committee on Human Rights has criticised the provisions of the Bill and the associated code of practice, saying that they are too narrow to enable the nearest relative to be displaced unless there is some undercurrent of abuse. That important point must be addressed, and I am grateful that the Minister is willing to consider the code of practice and to discuss further whether those concerns can be properly dealt with.

As the relative of someone who has been very ill and undergone the process of sectioning, I am well aware of the concern of nearest relatives that they should not easily be set aside. I know that, at times of crisis, patients can turn against family members—the people who are most concerned about them. I therefore understand the Government’s concerns, but I hope that they will do all they can to address the worry that lies behind new clause 17 and amendments Nos. 104 and 105.

My name does not often appear on amendments alongside that of the Secretary of State for Health, but I am pleased to support new clause 3.

I intervened to ask the Minister of State about advocates having the right to see patients in private. The right hon. Lady suggested that she was not prepared to put that on a statutory basis, but referred yet again to the code of practice.

Let me just finish this point.

When the code of practice is drawn up, it is important that the Government identify, not so much the crises, but what I would describe as the pinch points in the process of dealing with someone who is under a section order or who is detained, including those who might be detained in a police cell under a section 136 order, for example. At such points, it is important that they have access to advocacy.

There are times when advocacy is perhaps more relevant than it is at other times. I suggest that immediately or very close to the point at which a person has been admitted to hospital under a detention order, they should be made aware of their rights to advocacy—subject, of course, to their being aware and well enough to understand that information. Early intervention and notice of advocacy and access to an advocate are extremely important.

Before everybody loses sight of the fact, I point out that proposed new clause 130B(3)(a) in new clause 3 says that the independent mental health advocate may

“visit and interview the patient in private”.

I appreciate that, but I felt that the Minister was praying in aid the code of practice in her response to me, and I just wanted some clarification on that issue. Finally, I want to pick up on a point made by the hon. Member for Birmingham, Selly Oak (Lynne Jones): when we consider the nearest relative and carer, we should remember that they are often one and the same person, and that is quite a difficult situation, not least in the situation that she identified. Sometimes, if the patient lives with their nearest relative, or their nearest relative is also their primary carer, a situation develops in which that relative becomes personally involved in assisting the medical profession to section someone close to them. That can trigger a reaction on the part of the patient. I hope that the Minister will consider those situations and will be flexible enough to identify them on a case-by-case basis.

However, the Minister faces a dilemma, because it is not an easy issue to resolve. In the Bournewood case, the nearest relative of HL—an autistic adult who was detained—did not have day-to-day knowledge of HL’s condition. It was actually the paid professional carer who had that knowledge, and it would have been much more helpful if the carer had been involved at a much earlier stage. I appreciate that it is a difficult point for the Minister, but I hope that the system will be robust, yet flexible enough to allow difficult circumstances to be built into the changes that she is introducing.

I call Kitty Ussher. I beg your pardon—I mean Meg Hillier.

Thank you, Mr. Deputy Speaker; I am glad to know that it is not just me who makes that kind of slip occasionally. I welcome new clause 3, which is comprehensive and which goes quite a long way towards tackling some of the issues that cause me concern. I look forward to seeing the regulations, and I know that the Hackney organisations with which I am involved will want to contribute to the process, particularly with regard to issues of language and cultural awareness, which were raised by the hon. Member for Romsey (Sandra Gidley). Those are huge issues in a constituency such as mine, where 300 languages are spoken, and where all the inequalities that affect the mental health of people of many different ethnic groups are highlighted to an extreme. I hope that new clause 3 and the regulations will help to pave the way for greater advocacy for people, both pre-detention and post detention. I raised that matter through probing amendments in Committee. The new clause sets out a good way forward for extending rights of advocacy.

I cannot end without touching on the issue of resources, because under the Mental Capacity Act 2005, the whole of Hackney—not just my constituency, but that of my hon. Friend the Member for Hackney, North and Stoke Newington (Ms Abbott), too—received £40,000 for support for those who are unbefriended. I hope that in our debates on that subject we realistically consider the issue of resources. It is worth reminding Members that 12 of the top 20 users of accident and emergency services at my local hospital, Homerton University hospital, were known to mental health trusts; they were the most frequent users of those accident and emergency services, so the advocacy issues are important for a number of reasons. I have highlighted some of the issues that I have already discussed in Committee, so I will not detain the House any further.

I, too, welcome the proposals on advocacy, but I am concerned to ensure that advocacy services in Wales are widely available in both Welsh and English. The reason why I intervened on the Minister earlier and asked whether advocates would be assumed to be working for a public authority is that public bodies in Wales are subject to the Welsh Language Act 1993, and must produce language schemes. That might ensure that help was available in Welsh or English, as required. My second point is that if advocates are employed by a public authority, the system should be set up on an entirely bilingual basis. I refer the Minister to the way in which the post of Children’s Commissioner for Wales was set up by Peter Clarke. That started out properly on a bilingual footing.

I refer the Minister to the recent speculation in Wales that the new Welsh Assembly Government might seek a legislative competency in mental health. One of the reasons for that would be to ensure that the service was available in Welsh. Commenting on that, the First Minister, Rhodri Morgan, said that although he was sympathetic to the proposal, he was concerned about whether undevolved aspects of legislation could be disentangled. Some subjects are properly the concern of Parliament, but some are properly the concern of the Assembly. That may be resolved by new clause 3(2), which states:

“The appropriate national authority shall make such arrangements as it considers reasonable”

to enable people to act as advocates. Will the Minister confirm that, to her mind, that requires whoever sets up the advocacy system in Wales to ensure that the system is bilingual from the outset?

I will respond briefly to the points that have been made. First, on the issue raised by the hon. Member for East Worthing and Shoreham (Tim Loughton) and by my hon. Friend the Member for Hackney, South and Shoreditch (Meg Hillier), we have taken on board the points made during pre-legislative scrutiny about the estimates for advocacy. We are still working on the costings, but when the Bill hopefully completes its passage through the Commons, we will be able to produce an updated regulatory impact assessment before the Lords consider the Commons amendments. I hope that that will improve the position outlined by the hon. Member for East Worthing and Shoreham.

Turning to the point that the hon. Member for Tiverton and Honiton (Angela Browning) made about privacy, proposed new section 130B already includes provisions for an advocate to meet the patient in private, and I assure the hon. Lady that we will expand on that in the code of practice. I thank my hon. Friend the Member for Stafford (Mr. Kidney) for his comments, as I know that he is concerned about the issue, particularly the question of advocacy and the nearest relative. I can assure him that proper information about rights will be made available. We always keep those issues under consideration. As for the position of the nearest relative, anyone living with the patient for five years will be placed on the list, as he knows, and anyone living with, or caring for, a patient will be moved to the top of the list. We have therefore tried to make sure that carers are properly defined and treated in the same way that they are treated under other legislation.

The hon. Member for Romsey (Sandra Gidley) rightly raised the issue of black and minority ethnic patients. As I have set out, we have taken a series of actions under “Delivering race equality in mental health care” but, as I tried to stress at the outset, we are considering specialist advocacy for people from BME communities. I reiterate that it is important to confine advocacy to the groups that have been set out. I very much welcome the comments of my hon. Friend the Member for Birmingham, Selly Oak (Lynne Jones) about the fact that we need to make sure that, when we look at the issue of the nearest relative, we involve the relevant people to ensure that the code of practice is right. I thank her for her understanding of the issues that we have tried to tackle. As I have said, I wanted to see whether there was anything further that we can do, but I am convinced that with the exception of the question of looking at the code of practice and so on—I will keep in touch with her on that—we have found the right way forward. I will write to the hon. Member for Caernarfon (Hywel Williams) about the issue of the Welsh language. As I have said before, essentially, this is a question about devolving the issue to the Welsh Assembly. As he said, it is about the Welsh language, too, but I will make sure that Ministers in Wales are aware of his comments.

Finally, I welcome the support given during the debate to our proposals on advocacy. I regret that I still cannot agree to the new clause tabled by the hon. Member for East Worthing and Shoreham because I do not think it is practical and we already have the power that we need to make the changes. Of course I will look at the evidence from the MHAC, but we would have to be clear that the proposal was properly evidence based. For that reason I ask the House not to support the new clause if the hon. Gentleman decides to press it to a vote later.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 5

Independent mental capacity advocacy service: exceptions

‘For section 40 of the Mental Capacity Act 2005 (c. 9) (independent mental capacity advocacy service: exceptions) substitute—

“40 Exceptions

The duty imposed by section 37(3), 38(3) or (4) or 39(4) or (5) does not apply where there is—

(a) a person nominated by P (in whatever manner) as a person to be consulted on matters to which that duty relates,

(b) a donee of a lasting power of attorney created by P who is authorised to make decisions in relation to those matters, or

(c) a deputy appointed by the court for P with power to make decisions in relation to those matters.”.’— [Ms Winterton.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 6

Withdrawal of consent

‘(1) Section 60 of the 1983 Act (withdrawal of consent) is amended as follows.

(2) After subsection (1) insert—

“(1A) Subsection (1B) below applies where—

(a) the consent of a patient to any treatment has been given for the purposes of section 57, 58 or 58A above; but

(b) before the completion of the treatment, the patient ceases to be capable of understanding its nature, purpose and likely effects.

(1B) The patient shall, subject to section 62 below, be treated as having withdrawn his consent, and those sections shall then apply as if the remainder of the treatment were a separate form of treatment.

(1C) Subsection (1D) below applies where—

(a) a certificate has been given under section 58 or 58A above that a patient is not capable of understanding the nature, purpose and likely effects of the treatment to which the certificate applies; but

(b) before the completion of the treatment, the patient becomes capable of understanding its nature, purpose and likely effects.

(1D) The certificate shall, subject to section 62 below, cease to apply to the treatment and those sections shall then apply as if the remainder of the treatment were a separate form of treatment.”

(3) In subsection (2), for “subsection (1)” substitute “subsections (1) to (1D)”.’.—[Ms Rosie Winterton.]

Brought up, and read the First time.

With this it will be convenient to discuss Government amendments Nos. 10 to 12, 14, 16 to 21, 25, 27 to 34, 36, 37, 39, 41 to 43, 45, 46 and 49.

I shall be brief, as I fully expect the amendments to be supported in all parts of the House. They deal with safeguards for patients who are to be treated for their mental disorder with electroconvulsive therapy—ECT. The issue was debated at length in the other place and in Committee. ECT is an invasive procedure and some patients are fearful of it. Although it is an established psychiatric treatment, it is a controversial one.

We have already introduced amendments in the other place under which the refusal of a detained patient, with capacity to consent, to consent to ECT should be respected, except in an emergency. Following further debate in which other concerns were raised, the amendments before us provide even stronger safeguards in the very rare circumstances where young persons are treated with ECT. In Committee, my hon. Friend the Member for Norwich, North (Dr. Gibson) was particularly concerned about the provisions for giving ECT in emergencies. I hope he welcomes the changes that we have made.

The amendments also clarify the position for community patients. Government amendment No. 12 ensures that, for patients under 18 who agree to treatment with ECT, a second opinion appointed doctor must first certify that it is appropriate for the ECT to be given. Even where a young patient consents to treatment, we want a second opinion. We have also considered the needs of patients under 18 who are not detained under the legislation or subject to a community treatment order. Government amendments Nos. 16, 21, 25 and 27 require that, where such patients can lawfully be treated with ECT or any other treatment made subject to section 58A, a second opinion appointed doctor must certify that it is appropriate. This is an important new safeguard for voluntary patients under 18.

The Mental Health Act 1983 provides for a limited number of circumstances where the patient can be urgently treated without the need for a statutory second opinion. We have reconsidered those circumstances in the light of requests to do so in the other place and in Committee. As a result, we have concluded that ECT may be given as an urgent treatment in only two circumstances: where it is immediately necessary to save the patient’s life, or to prevent a serious deterioration in the patient’s condition. Amendment No. 19 achieves that, and we have made similar amendments—amendments Nos. 36, 37, 41 and 42—to the urgent procedures for community patients. Obviously, ECT is rarely administered to patients who are not hospital in-patients. The Bill does not afford community patients the same safeguards, and to rectify that we have tabled amendments Nos. 29 to 34, 39, 43 and 46.

We have tabled other technical amendments. Amendment No. 14 removes the requirement that the second opinion appointed doctor certify that the giving of treatment does not conflict with the court order. Amendment No. 28 makes it clear that the certificates for adult community patients and child community patients apply when a patient is recalled to hospital, or when their community treatment order is revoked. Amendment No. 45 provides that the authority that issues a SOAD certificate under part 4A may require the approved clinician in charge of that treatment to report on it.

As I said, I think that the amendments will be supported by all hon. Members, and I recommend them to the House.

We discovered in Committee that two Committee members had helped to administer this treatment at one time or another. We all understand that ECT is highly invasive, involves sedation, inflicts fits, leads to amnesia and can involve physical restraint, the removal of false teeth and so on. Like acupuncture, it is a treatment that is hard to explain. In a letter, the Minister explained that it is used in a rather strange diversity of cases. For under-18s, it has been used for anorexia, depression, bipolar disease, schizophrenia and obsessive compulsive disorder. It works in some of those cases, albeit temporarily, and although it is addictive its long-term effects do not seem to be conclusively bad. As it is so invasive, it needs to be used with exceptional care. Some consultants will not use it at all, and for others it is a last resort. Its appropriate use therefore needs to be heavily circumscribed for all, not only for under-18s.

The Bill contains definite limitations. For example, the clinician must certify

“in writing that the patient is capable of understanding the nature, purpose and likely effects of the treatment”.

I doubt that anyone in the UK truly understands the nature, purpose and full likely effect of the treatment, but none the less that is a useful set of words. The Minister has added further words—no fewer than 17 new clauses—so we cannot complain and we will support the changes.

The Minister is correct to predict that Members on both sides of the House are likely to support the amendments, although that is no surprise given that the Bill has been 10 years in gestation. Throughout that time concerns about ECT have been raised, not only in pre-legislative scrutiny, but in the other place and in amendments tabled in Committee.

The Minister correctly said that ECT is a controversial and quite invasive procedure. In Committee, I probed her about cases involving those under 18. On 12 June, she kindly wrote to me with a sample of the number of people under 18 who were subject to the procedure during a three-month period in 2002. She said that only four people under 18 had been administered ECT, and that none of those was under 16. Perhaps she could look again at those figures, because I note that the Mental Health Alliance briefing contradicts her letter and says that one individual under 16 was included. I am concerned about those under 18 because in the early adolescent periods the brain develops in ways that we do not understand. We are forcing a treatment that we do not fully understand on the bodies of young, vulnerable individuals at a time when the other major organs of the body are still developing. A number of people die following ECT, and I am concerned about those under 16, whose organs are still developing.

I welcome the amendments, particularly those introducing the requirement for SOADs and extending safeguards to those under 18 who admit themselves voluntarily. I have a question for the Minister about when parents do not agree on what should happen to their child. If they do not feel able to respond by going ahead with ECT, they can go to the High Court; but what happens if the parents are in dispute? Would the case go automatically to the High Court?

I am also a little confused about amendments Nos. 41 and 42. Amendment No. 41 appears to delete a large section of text that is simply put back by amendment No. 42. It might simply be a matter of drafting, and getting the order of provisions right, but I should be grateful if the Minister explained the reasons for deleting one amendment and repeating the same form of words in amendment No. 42.

Finally, given the confusion about the number of people under 18—and particularly those under 16—who have had ECT treatments, would the Minister consider reporting to the House, or making some formal report, on how many people are subject to ECT each year, to monitor whether the number goes up or down, and with a focus on under-16s, as well as those under 18?

Having made those points, I welcome the amendments and congratulate the Minister on tabling them.

I thank the hon. Member for Southport (Dr. Pugh) for his contribution; as he said, when the matter was debated in Committee the different experiences of some Committee members were recounted, which showed how expert the Committee was. Their knowledge was brought to bear on our deliberations, and it certainly helped to swing the argument in favour of introducing the new safeguards.

I shall have to write to the hon. Member for Rochford and Southend, East (James Duddridge) about the technical point concerning the wording. I believe that the Mental Health Act Commission might be looking at the number of people who receive ECT, but, again, I shall write to the hon. Gentleman to clarify the point. I thank him, and all members of the Committee and other Members of the House, for the warm welcome they gave the amendments.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 7

Victims’ rights

‘Schedule [Victims’ rights] (which makes amendments to Chapter 2 of Part 3 of the Domestic Violence, Crime and Victims Act 2004 (c. 28)) has effect.’.—[Ms Rosie Winterton.]

Brought up, and read the First time.

With this it will be convenient to discuss the following:

Government new schedule 1—‘Victims’ rights.

Government amendment No. 67

The new clause, new schedule and amendment relate to the Domestic Violence, Crime and Victims Act 2004. They extend the rights of victims of mentally disordered offenders to receive information and make representations about a patient’s discharge. I pay particular tribute to the work of the Zito Trust and Victims Voice, with whom we had several meetings, who have made strong representations about extending the rights of victims in such tragic circumstances. I also pay tribute to the work of my hon. Friends the Members for Slough (Fiona Mactaggart), who has been very involved in the issue, and for Bridgend (Mrs. Moon), who raised it in Committee. I am glad to say that I think that the provisions will have cross-party support, showing the importance that Parliament attaches to treating victims with respect and dignity. Those issues were debated in Committee and the other place, and we introduced amending provisions in response to those debates.

The amending provisions relate to persons with a mental disorder who have been convicted of a criminal offence of a sexual or violent nature, but who are not made subject to restrictions. Unlike the victims of offenders given restricted orders, these victims are not told when the offender is discharged from detention in hospital. In responding to the pre-legislative scrutiny Committee report on the 2004 draft Bill, we said that we would consider how victims’ rights might be extended to cover victims of serious offences where no restrictions had been imposed. The amending provisions also help to deliver that commitment.

The Government believe that the key ways of helping victims of crime are through support services, allowing victims’ voices to be heard in court and providing information, which can take several forms. For example, there is information on where to seek help and advice; on the progress of a case from the point of report through to the end of the criminal case; and on when the offender is released. Much of that was included in the code of practice for victims of crime, which set out for the first time the obligations of the criminal justice system towards victims.

It is also important to recognise that we looked into how to extend victims’ rights further. We shall table amendments that reflect discussions on the importance of information about what has happened to restricted patients, but we are also extending provisions to include circumstances where patients are not restricted. Many victims’ organisations have stressed to us the importance of sharing information between agencies, and we must recognise that.

The draft illustrative code of practice, at chapter 34A, deals with public bodies’ sharing of information in order to address risk. It is important to acknowledge that some considerations need to be taken into account where confidentiality is crucial, and patients are entitled to know that their rights will be respected to that extent, but it is also important to recognise that many victims’ organisations made it very clear to us that information about risk should be shared between different agencies—even when the information is about someone detained under the Mental Health Act. We will consult further on the draft code of practice and information sharing so that we can consider bolstering our guidance. As I said, patients have a right to confidentiality, but the public have a right to know that systems and services are in place to support people with a mental disorder.

Victims need to know when an offender has been released in order to reassure them about their future safety. The amending provisions are designed to extend to more victims the protections put in place by the Domestic Violence, Crime and Victims Act, which sets out the current rights of victims of mentally disordered offenders.

Under that Act, victims are entitled to receive information where the following apply: first, where a person is convicted of a violent or sexual offence; secondly, when he receives a hospital order or a hospital direction, or is transferred from prison to hospital under a transfer direction; and, thirdly, where he is made subject to special restrictions, respectively a restriction order, a limitation direction or a restriction direction. If those circumstances apply, the victim has the right to elect to receive information about the patient’s discharge from hospital; to make representations about whether the patient should be subject to any conditions in the event of his discharge; and to receive information about the discharge and any conditions imposed for the victim’s protection.

The amending provisions extend those very important rights to victims of mentally disordered offenders who are convicted of violent or sexual offences, but not made subject to special restrictions. The process will be similar to the current one for offenders who receive restricted hospital orders. The local probation board must take reasonable steps to establish whether a victim wishes to make representations about whether the patient should be subject to any conditions in the event of his discharge from hospital. It must also establish whether the victim wishes to receive information about any conditions to which the patient is subject in the event of his discharge from hospital.

Where the victim so wishes, the probation board must notify the relevant hospital managers of the victim’s wish and their name and address, so that they may be contacted. Should the victim wish to rescind their request for information or notify the board of any change in their contact details, the board must notify him of the contact details for the hospital manager. A victim who initially declines to make representations or receive information, but changes their mind, may contact the local probation board.

To facilitate the making of representations, the responsible clinician is required to inform hospital managers whether he is considering discharging a patient, making a community treatment order or varying the conditions of an order. There is a duty to inform hospital managers when any other person is considering discharging the patient under section 23(3), and when an application is made to the mental health review tribunal. On receipt of such information, hospital managers must notify the victim that discharge is being considered, giving the victim the opportunity to make representations if they wish.

Hospital managers must forward representations to those who have the power to consider the patient’s discharge from detention, or discharge on a community treatment order. The responsible clinician must inform hospital managers whether a patient is to be discharged or a community treatment order is to be made. If so, managers must be told whether any of the conditions in the order relate to contact with the victim or their family. The clinician must also notify them of whether any conditions relating to the victim or their family are to be altered or added. Finally, he must notify them if a community treatment order is to cease to be in force, and the date on which it is to cease, and if the conditions for a patient’s authority for detention are no longer met.

A person who is to discharge a patient under section 23(3) must also inform hospital managers, as must the tribunal if it directs that a patient is to be discharged. When hospital managers receive this information, they must take all reasonable steps to pass it to the victim. They may also provide such other information as they consider appropriate. The same notification requirements will apply when a victim has elected to make representations, or to receive information about a person subject to a hospital order with restrictions, and the restriction order is lifted while the hospital order remains in force. Those rights will also apply to the victims of persons made subject to a hospital and limitation direction where the direction ceases to have effect, and in cases where convicted persons are transferred to hospital under a transfer direction without a restriction direction, or where the restriction direction is removed.

As I said, many organisations representing victims, particularly the Zito Trust and Victims Voice, have campaigned for these provisions for a number of years, so I am glad that we have been able to introduce them in the Bill. It is the right thing to do and I am grateful for the support that I hope will be given from both sides of the House. The amendments are important and will send a real message of our support.

I welcome many of the procedures and accept their necessity, but I want to raise a point made to me by a consultant forensic psychiatrist, on which I would welcome my right hon. Friend’s view. His slight criticism was that the language used in presenting the proposals was not helpful, and that the term “public protection” was somewhat severe and negative. He said:

“The term ‘public health’ or ‘interest’ is less emotionally loaded and more technically accurate.”

Has that consideration crossed my right hon. Friend’s path?

The term “public health” might have a different connotation, too, and could be slightly confusing. It is important to recognise that we can talk about public protection in relation to such cases and we should not be embarrassed to do so. Victims, and those who have suffered in some tragic cases, expect us not to be mealy-mouthed, which is why the proposals are important. I value the support I hope they will receive on both sides of the House.

I shall speak briefly in support of the new clause, which my hon. Friends and I signed. Although we did not have the opportunity to discuss the proposals in Committee, they are welcome and I wholly concur with the Minister’s comments. We should certainly treat with respect and dignity the victims of horrendous and tragic crimes, about some of which we are only too well aware. I pay tribute both to the organisations mentioned by the Minister and to the others that have lobbied long and hard for respect for victims’ rights.

We hear much about some of the horrendous cases, but they need to be put into perspective, as I am sure the Minister agrees. We need balance, but we need to make sure that the victims of those crimes are properly respected and that the horrendous blow they have suffered is dealt with as sensitively as possible and the situation is not exacerbated in the future. They have to go on living with the injuries—or, in extreme cases, the fatalities—that may have occurred. We need to think about victims, and the proposals are a good, if belated, way of adding the same safeguards as those in the Domestic Violence, Crime and Victims Act and for other victims of crime.

The biggest tribute we can pay to victims and, we hope, to avoid there being more of them in future, is to make sure we do everything possible to stop perpetrators before they commit such ghastly acts. That is what the Bill and mental health services are all about—making sure that people who are a danger to themselves and others are picked up at an early stage and given the treatment they need and deserve for their medical condition. We need to get that balance right.

Such crimes have an impact on families, too. I have spoken to the victims of patients and of others suffering from mental illness. For innocent families who have had no connection with the mental health services, it can be hard to come to terms with such a most shocking blow. In extreme circumstances, professional staff and others working in mental health services can also be the victims of patients when their condition gets out of control. We need to think about those sets of victims and their families.

As the Minister said, we have a duty to offer victims support services. Some of the organisations in my constituency do an excellent job in that regard and we should give them every support to do more.

Victims need a voice in court. I agree with the Minister: too often, that is an unheard and forgotten part of the equation. Most importantly, victims need information about the progress of the case, and the whereabouts of the perpetrator and their likely release date—in a safe situation, we hope, so that they do not commit other atrocities in the future. Sharing information between agencies is absolutely essential, so I hope that in drawing up powers on victims’ rights, the Minister is equally mindful of the structures necessary to implement them. There should be constant monitoring to ensure that information is shared. Victims need to know when offenders are released so that they can take due care for their security and peace of mind if there is an outstanding problem. They have suffered one tragic blow; it would be unreasonable to expect them to suffer a second by not giving them the information that a perpetrator may be at large—albeit, we hope, after appropriate treatment, so that their condition does not recur.

On behalf of the Opposition, I welcome the provisions and I am sure that the Minister will do all she can to ensure that they do not just go into legislation but are realistically put into practice as soon as possible, so that victims have long overdue support.

I want briefly to express my gratitude for the acceptance of the new clause in the revised Bill. I welcome the particular help I received from the Zito Trust and Victims Voice in raising the issues in Committee.

I want to record my contact with the Morgan family in my constituency, who were eager that the victim’s voice be heard in the Bill. They talked to me of their ongoing distress about not knowing what had happened to the perpetrator of an incident involving their family. New clause 7 will alleviate their concerns and recognise their desire to have their voices heard and their continuing need for information.

It is easy to forget the victim as we concentrate on supporting the perpetrator, who becomes a patient, and helping them to get well. We need to remember that victims can be left with trauma and distress and that they sometimes have ongoing mental issues that may not warrant hospital admission but are none the less distressing and painful. There may be constant concern that a decision could be made to allow the perpetrator back into the community where there is a chance that the victim might have to meet them again.

I am particularly glad that victims have a choice. Not everyone will want to know what is happening, but the most important thing about the new clause is that it allows the victim the choice to know or not to know, depending on where they are and how they feel at the time.

I am pleased that professionals will have a responsibility to trace the victim and check whether their view has changed. There will not be a once and for all situation: victims will have the possibility of changing their mind about whether to be given information. That is welcome.

We must realise that it is not only people who are strangers to the patient and their families who are at risk, because professionals can be victims, too. That recognition is important and it is provided by the new clause.

I join in the praise for the Zito Trust and all the campaigning organisations that will have helped put this provision into statute. We all feel the plight of those people who have been let down as much by services as by legislation. It is probably worth emphasising that such sad events are no more common now than hitherto, which is surprising in some ways, given the dispersal from the old hospitals, although perhaps we might have expected that with modern medicine they would be lower still.

As I understand it, a victim has rights if they are threatened by a non-mentally ill released prisoner or a mentally ill person convicted of an offence, but not if the mentally ill person is unfit to plead, is not convicted, or is detained and then released. Additional rights are not usually necessary, because the patient may be cured and come out with no intent of doing any malicious act, but occasionally it is a wise precaution to know and to tell, and to allow access to information, especially if the patient’s mental disturbance is focused on an individual or a family.

I accept that the matter is complex, but it is well worth the Minister and the Government pursuing the matter in legislation, and we welcome the change.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 9

Transfer of prisoners to hospital

‘(1) The 1983 Act is amended as follows.

(2) In section 47 (Removal to hospital of persons serving sentences of imprisonment, etc.) in subsection (1) after “may”, insert “within 14 days beginning with the date he received the reports.”.’.—[Dr. Pugh.]

Brought up, and read the First time.

With this it will be convenient to discuss Government amendment No. 26

It is estimated that a large number of prisoners have mental illness, which is to be expected because prison is not an enjoyable experience. Some are treatable in prison, but some are beyond its competence to treat them, as would be the case if they had severe physical problems, so transfer may be necessary. That may be problematic because of security problems, the effect on autonomy and rehabilitation, and the prisoner’s understanding of his position. However, when the situation is severe, there is no option but to transfer.

The purpose of the new clause is to sharpen that process by giving 14 days for a reaction to the responsible clinician’s report. Any delay or trouble indicates an under-provision in NHS secure units, which should be addressed, and a strain on the Prison Service. The new clause would set a sensible service standard. Many cases now wait three months or more, and the waiting is becoming worse. I accept that there are technical problems, but leaving the default situation as it is at the moment means leaving people who are very ill, very dangerous and very disruptive in the prison system.

I shall be brief. I endorse the comments that have been made on this matter. I have three penal establishments all lined up in a row in my constituency. One is a secure training centre, and I recently discussed the matter with the rector there. The staff go to immense trouble to assess young people’s mental health on admission, and it is frustrating, if their condition deteriorates and it is necessary to refer them away for treatment, if there is a long, difficult and worrying delay before that can happen.

We cannot accept new clause 9, but I urge the House to accept Government amendment No. 26, which is a technical amendment to correct a small gap in the 1983 Act. The effect of that gap is on offenders given a hospital direction by the court and who are detained in a place of safety. At present, they cannot benefit from the second opinion safeguards in part 4 of the Act against being treated without consent while they are detained in a place of safety. The amendment explicitly—

It being two hours after the commencement of proceedings on the programme motion, Mr. Deputy Speaker, pursuant to Order [this day], put forthwith the Question already proposed from the Chair.

Question put and negatived.

Mr. Deputy Speaker then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.

New Clause 15

Treatment requiring consent (period of time since administration of treatment)

‘(1) Section 58 of the 1983 Act is amended as follows.

(2) In subsection (1)(b) leave out “three months” and insert “two months”.’.—[Tim Loughton.]

Brought up, and read the First time.

Question put, That the clause be read a Second time:—

Clause 27

Electro-convulsive therapy, etc.

Amendments made: No. 10, page 17, line 23, after ‘(3)’, insert ‘, (3A)’.

No. 11, page 17, line 24, at end insert—

‘( ) he has attained the age of 18 years;’.

No. 12, page 17, line 30, at end insert—

‘(3A) A patient falls within this subsection if—

(a) he has not attained the age of 18 years; but

(b) he has consented to the treatment in question; and

(c) a registered medical practitioner appointed as aforesaid (not being the approved clinician in charge of the treatment) has certified in writing—

(i) that the patient is capable of understanding the nature, purpose and likely effects of the treatment and has consented to it; and

(ii) that it is appropriate for the treatment to be given.’.

No. 14, page 17, line 43, leave out sub-paragraph (iii).

No. 16, page 18, line 7, at end insert—

‘(5A) This section shall not by itself confer sufficient authority for a patient who falls within section 56(5) above to be given a form of treatment to which this section applies if he is not capable of understanding the nature, purpose and likely effects of the treatment (and cannot therefore consent to it).’.—[Ms Rosie Winterton.]

Clause 28

Section 27: supplemental

Amendments made: No. 17, page 18, line 41, leave out ‘58A(4)’ and insert ‘58A(3A) or (4)’.

No. 18, page 18, line 43, leave out ‘58A(4)’ and insert ‘58A(3A) or (4)’.

No. 19, page 18, line 45, leave out from ‘treatment)’ to ‘in’ in line 2 on page 19 and insert ‘, after subsection (1) insert—

“(1A) Section 58A above, in so far as it relates to electro-convulsive therapy by virtue of subsection (1)(a) of that section, shall not apply to any treatment which falls within paragraph (a) or (b) of subsection (1) above.

(1B) Section 58A above, in so far as it relates to a form of treatment specified by virtue of subsection (1)(b) of that section, shall not apply to any treatment which falls within such of paragraphs (a) to (d) of subsection (1) above as may be specified in regulations under that section.

(1C) For the purposes of subsection (1B) above, the regulations—

(a) may make different provision for different cases (and may, in particular, make different provision for different forms of treatment);

(b) may make provision which applies subject to specified exceptions; and

(c) may include transitional, consequential, incidental or supplemental provision.”

( ) In that section,’.

No. 20, page 19, line 5, at end insert—

‘( ) In section 64 (supplementary provisions), after subsection (1A) (inserted by section 12 of this Act) insert—

“(1B) References in this Part of this Act to the approved clinician in charge of a patient’s treatment shall, where the treatment in question is a form of treatment to which section 58A above applies and the patient falls within section 56(5) above, be construed as references to the person in charge of the treatment.

(1C) Regulations made by virtue of section 32(2)(d) above apply for the purposes of this Part as they apply for the purposes of Part 2 of this Act.”’.

No. 21, page 19, line 5, at end insert—

‘( ) In section 28 of the Mental Capacity Act 2005 (c. 9) (Mental Health Act matters), after subsection (1) insert—

“(1A) Subsection (1) does not apply in relation to any form of treatment to which section 58A of that Act (electro-convulsive therapy, etc.) applies if the patient comes within subsection (5A) of that section (informal patient under 18 who cannot give consent).”.’.—[Ms Rosie Winterton.]

Clause 31

Consent to treatment

Amendments made: No. 25, page 24, line 37, after ‘that’, insert ‘and to subsection (5) below’.

No. 26, page 25, line 5, leave out ‘under section 37(4)’ and insert—

‘for his detention in a place of safety under section 37(4) or 45A(5)’.

No. 27, page 25, line 11, after ‘above.’, insert—

‘(5) Section 58A and, so far as relevant to that section, sections 59 to 62 below also apply to any patient who—

(a) does not fall within subsection (3) above;

(b) is not a community patient; and

(c) has not attained the age of 18 years.’.

No. 28, page 25, line 31, leave out

‘(within the meaning of section 64C below)’

and insert—

‘for the purposes of section 64C or 64E below’.

No. 29, page 25, line 35, at end insert—

‘( ) Section 58A above does not apply to treatment given to the patient if there is authority to give the treatment, and the certificate requirement is met, for the purposes of section 64C or 64E below.’.

No. 30, page 25, line 47, after ‘58’, insert ‘or 58A’.—[Ms Rosie Winterton.]

Clause 32

Authority to treat

Amendments made: No. 31, page 26, line 19, leave out ‘or 58A’.

No. 32, page 26, line 28, after ‘treatment’ insert ‘or section 58A type treatment’.

No. 33, page 27, line 12, after second ‘treatment’ insert ‘or section 58A type treatment’.

No. 34, page 27, line 13, leave out ‘above’ and insert ‘or 58A above (respectively)’.

No. 36, page 27, line 24, at beginning insert

‘In a case where the treatment is section 58 type treatment,’.

No. 37, page 27, line 33, at end insert—

‘(5A) In a case where the treatment is section 58A type treatment by virtue of subsection (1)(a) of that section, treatment is immediately necessary if it falls within paragraph (a) or (b) of subsection (5) above.

(5B) In a case where the treatment is section 58A type treatment by virtue of subsection (1)(b) of that section, treatment is immediately necessary if it falls within such of paragraphs (a) to (d) of subsection (5) above as may be specified in regulations under that section.

(5C) For the purposes of subsection (5B) above, the regulations—

(a) may make different provision for different cases (and may, in particular, make different provision for different forms of treatment);

(b) may make provision which applies subject to specified exceptions; and

(c) may include transitional, consequential, incidental or supplemental provision.’.

No. 39, page 28, line 28, after ‘treatment’ insert ‘or section 58A type treatment’.

No. 41, page 29, line 33, leave out from ‘treatment’ to end of line 42 and insert ‘is immediately necessary’.

No. 42, page 30, line 5, at end insert—

‘(4A) Subject to subsections (4B) to (4D) below, treatment is immediately necessary if—

(a) it is immediately necessary to save the patient’s life; or

(b) it is immediately necessary to prevent a serious deterioration of the patient’s condition and is not irreversible; or

(c) it is immediately necessary to alleviate serious suffering by the patient and is not irreversible or hazardous; or

(d) it is immediately necessary, represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to himself or others and is not irreversible or hazardous.

(4B) Where the treatment is section 58A type treatment by virtue of subsection (1)(a) of that section, treatment is immediately necessary if it falls within paragraph (a) or (b) of subsection (4A) above.

(4C) Where the treatment is section 58A type treatment by virtue of subsection (1)(b) of that section, treatment is immediately necessary if it falls within such of paragraphs (a) to (d) of subsection (4A) above as may be specified in regulations under section 58A above.

(4D) For the purposes of subsection (4C) above, the regulations—

(a) may make different provision for different cases (and may, in particular, make different provision for different forms of treatment);

(b) may make provision which applies subject to specified exceptions; and

(c) may include transitional, consequential, incidental or supplemental provision.’.

No. 43, page 30, line 12, at end insert ‘or section 58A type treatment’.

No. 45, page 30, line 21, at end insert—

‘(3A) Where a patient is given treatment in accordance with a Part 4A certificate, a report on the treatment and the patient’s condition shall be given by the person in charge of the treatment to the appropriate national authority if required by that authority.’.

No. 46, page 30, line 32, leave out from first ‘above’ to end of line 33 and insert—

‘(i) section 58 above, in the case of section 58 type treatment;

(ii) section 58A above, in the case of section 58A type treatment;

(subject to section 62A(2) above).’

No. 49, page 32, line 4, leave out from ‘subsection’ to ‘Section’ in line 5 and insert

‘(1A) (inserted by section 28 of this Act) insert—

“(1B) ’.—[Ms Rosie Winterton.]

New Schedule 1

Victims’ rights

Introduction

1 Chapter 2 of Part 3 of the Domestic Violence, Crime and Victims Act 2004 (provision of information to victims of restricted patients under the 1983 Act, etc.) is amended as set out in this Schedule.

Hospital orders (with or without restriction orders)

2 (1) Section 36 (victims’ rights: preliminary) is amended as follows.

(2) In subsection (3), for “with a restriction order” substitute “, whether with or without a restriction order,”.

(3) In subsection (5)—

(a) in paragraph (a), after “discharge from hospital” insert “while a restriction order is in force in respect of him”, and

(b) after paragraph (b) insert “;

(c) what conditions he should be subject to in the event of his discharge from hospital under a community treatment order”.

3 After section 36 insert—

“36A Supplemental provision for case where no restriction order made

(1) This section applies if, in a case where section 36 applies, the hospital order in respect of the patient was made without a restriction order.

(2) Subsection (3) applies if a person who appears to the local probation board mentioned in section 36(4) to be the victim of the offence or to act for the victim of the offence, when his wishes are ascertained under section 36(4), expresses a wish—

(a) to make representations about a matter specified in section 36(5), or

(b) to receive the information specified in section 36(6).

(3) The local probation board must—

(a) notify the managers of the hospital in which the patient is detained of that person’s wish and of that person’s name and address, and

(b) notify that person of the name and address of the hospital.

(4) Subsection (5) applies if a person who appears to the local probation board mentioned in section 36(4) to be the victim of the offence or to act for the victim of the offence, subsequently to his wishes being ascertained under section 36(4), expresses a wish to do something specified in subsection (2)(a) or (b).

(5) The local probation board mentioned in section 36(4) must take all reasonable steps—

(a) to ascertain whether the hospital order made in respect of the patient continues in force and whether a community treatment order is in force in respect of him, and

(b) if the board ascertains that the hospital order does continue in force—

(i) to notify the managers of the relevant hospital of that person’s wish, and

(ii) to notify that person of the name and address of the hospital.

(6) The relevant hospital is—

(a) the hospital in which the patient is detained, or

(b) if a community treatment order is in force in respect of the patient, the responsible hospital.”

4 In section 37 (the title to which becomes “Representations where restriction order made”), in subsection (1), for “if section 36 applies” substitute “if, in a case where section 36 applies, the hospital order in respect of the patient was made with a restriction order”.

5 After section 37 insert—

“37A Representations where restriction order not made

(1) This section applies if, in a case where section 36 applies, the hospital order in respect of the patient was made without a restriction order.

(2) Subsection (3) applies if—

(a) a person makes representations about a matter specified in section 36(5) to the managers of the relevant hospital, and

(b) it appears to the managers that the person is the victim of the offence or acts for the victim of the offence.

(3) The managers must forward the representations to the persons responsible for determining the matter.

(4) The responsible clinician must inform the managers of the relevant hospital if he is considering making—

(a) an order for discharge in respect of the patient under section 23(2) of the Mental Health Act 1983,

(b) a community treatment order in respect of the patient, or

(c) an order under section 17B(4) of the Mental Health Act 1983 to vary the conditions specified in a community treatment order in force in respect of the patient.

(5) Any person who has the power to make an order for discharge in respect of the patient under section 23(3) of the Mental Health Act 1983 must inform the managers of the relevant hospital if he is considering making that order.

(6) A Mental Health Review Tribunal must inform the managers of the relevant hospital if—

(a) an application is made to the tribunal under section 66 or 69 of the Mental Health Act 1983, or

(b) the patient’s case is referred to the tribunal under section 67 of that Act.

(7) Subsection (8) applies if—

(a) the managers of the relevant hospital receive information under subsection (4), (5) or (6), and

(b) a person who appears to the managers to be the victim of the offence or to act for the victim of the offence—

(i) when his wishes were ascertained under section 36(4), expressed a wish to make representations about a matter specified in section 36(5), or

(ii) has made representations about such a matter to the managers of the hospital in which the patient was, at the time in question, detained.

(8) The managers of the relevant hospital must provide the information to the person.

(9) The relevant hospital has the meaning given in section 36A(6).”

6 In section 38 (the title to which becomes “Information where restriction order made”), in subsection (1) for “if section 36 applies” substitute “if, in a case where section 36 applies, the hospital order in respect of the patient was made with a restriction order”.

7 After section 38 insert —

“38A Information where restriction order not made

(1) This section applies if, in a case where section 36 applies, the hospital order in respect of the patient was made without a restriction order.

(2) The responsible clinician must inform the managers of the relevant hospital—

(a) whether he is to make an order for discharge in respect of the patient under section 23(2) of the Mental Health Act 1983;

(b) whether he is to make a community treatment order in respect of the patient;

(c) if a community treatment order is to be made in respect of the patient, what conditions are to be specified in the order;

(d) if a community treatment order is in force in respect of the patient, of any variation to be made under section 17B(4) of the Mental Health Act 1983 of the conditions specified in the order;

(e) if a community treatment order in respect of the patient is to cease to be in force, of the date on which it is to cease to be in force;

(f) if, following the examination of the patient under section 20 of the Mental Health Act 1983, it does not appear to the responsible clinician that the conditions set out in subsection (4) of that section are satisfied, of the date on which the authority for the patient’s detention is to expire.

(3) Any person who has the power to make an order for discharge in respect of the patient under section 23(3) of the Mental Health Act 1983 must inform the managers of the relevant hospital if he is to make that order.

(4) Subsection (5) applies if—

(a) an application is made to a Mental Health Review Tribunal under section 66 or 69 of the Mental Health Act 1983,

(b) the patient’s case is referred to a Mental Health Review Tribunal under section 67 of that Act, or

(c) the managers of the relevant hospital refer the patient’s case to a Mental Health Review Tribunal under section 68 of that Act.

(5) The tribunal must inform the managers of the relevant hospital if it directs that the patient is to be discharged.

(6) Subsection (7) applies if a person who appears to the managers of the relevant hospital to be the victim of the offence or to act for the victim of the offence—

(a) when his wishes were ascertained under section 36(4), expressed a wish to receive the information specified in section 36(6), or

(b) has subsequently informed the managers of the relevant hospital that he wishes to receive that information.

(7) The managers of the relevant hospital order must take all reasonable steps—

(a) to inform that person whether the patient is to be discharged under section 23 or 72 of the Mental Health Act 1983;

(b) to inform that person whether a community treatment order is to be made in respect of the patient;

(c) if a community treatment order is to be made in respect of the patient and is to specify conditions which relate to contact with the victim or his family, to provide that person with details of those conditions;

(d) if a community treatment order is in force in respect of the patient and the conditions specified in the order are to be varied under section 17B(4) of the Mental Health Act 1983, to provide that person with details of any variation which relates to contact with the victim or his family;

(e) if a community treatment order in respect of the patient is to cease to be in force, to inform that person of the date on which it is to cease to be in force;

(f) if, following the examination of the patient under section 20 of the Mental Health Act 1983, the authority for the patient’s detention is not to be renewed, to inform that person of the date on which the authority is to expire;

(g) to provide that person with such other information as the managers of the relevant hospital consider appropriate in all the circumstances of the case.

(8) The relevant hospital has the meaning given by section 36A(6).

38B Removal of restriction

(1) This section applies if, in a case where section 36 applies—

(a) the hospital order in respect of the patient was made with a restriction order, and

(b) the restriction order ceases to have effect while the hospital order continues in force.

(2) Subsection (3) applies if a person who appears to the relevant local probation board to be the victim of the offence or to act for the victim of the offence—

(a) when his wishes were ascertained under section 36(4), expressed a wish to make representations about a matter specified in section 36(5) or to receive the information specified in section 36(6), or

(b) has subsequently informed the relevant local probation board that he wishes to make representations about such a matter or to receive that information.

(3) The relevant local probation board must take all reasonable steps—

(a) to notify the managers of the relevant hospital of an address at which that person may be contacted;

(b) to notify that person of the name and address of the hospital.

(4) While the hospital order continues in force, the patient is to be regarded as a patient in respect of whom a hospital order was made without a restriction order; and sections 37A and 38A are to apply in relation to him accordingly.

(5) The relevant hospital has the meaning given in section 36A(6).

(6) The relevant local probation board has the meaning given in section 37(8).”

Hospital directions and limitation directions

8 In section 39 (victims’ rights: preliminary), in subsection (3)—

(a) in paragraph (a), after “discharge from hospital” insert “while he is subject to a limitation direction”, and

(b) after that paragraph insert—

“(aa) what conditions he should be subject to in the event of his discharge from hospital under a community treatment order;”.

9 After section 41 insert—

“41A Removal of restriction

(1) This section applies if, in a case where section 39 applies—

(a) the limitation direction in respect of the offender ceases to be in force, and

(b) he is treated for the purposes of the Mental Health Act 1983 as a patient in respect of whom a hospital order has effect.

(2) Subsection (3) applies if a person who appears to the relevant local probation board to be the victim of the offence or to act for the victim of the offence—

(a) when his wishes were ascertained under section 39(2), expressed a wish to make representations about a matter specified in section 39(3) or to receive the information specified in section 39(4), or

(b) has subsequently informed the relevant local probation board that he wishes to make representations about such a matter or to receive that information.

(3) The relevant local probation board must take all reasonable steps—

(a) to notify the managers of the relevant hospital of an address at which that person may be contacted;

(b) to notify that person of the address of the hospital.

(4) The offender is to be regarded as a patient in respect of whom a hospital order was made without a restriction order; and sections 37A and 38A are to apply in relation to him accordingly.

(5) The relevant hospital has the meaning given in section 36A(6).

(6) The relevant local probation board has the meaning given in section 40(8).”

Transfer directions (with or without restriction directions)

10 (1) Section 42 (victims’ rights: preliminary) is amended as follows.

(2) In subsection (1)(c), for “and a restriction order in respect of him” substitute “in respect of the offender (whether or not he also gives a restriction direction in respect of the offender)”.

(3) In subsection (3)—

(a) in paragraph (a), after “discharge from hospital” insert “at a time when a restriction direction is in force in respect of him”, and

(b) after paragraph (b) insert “;

(c) what conditions he should be subject to in the event of his discharge from hospital under a community treatment order”.

11 After section 42 insert—

“42A Supplemental provision for case where no restriction direction given

(1) This section applies if, in a case where section 42 applies, the transfer direction in respect of the patient was given without a restriction direction.

(2) Subsection (3) applies if a person who appears to the local probation board mentioned in section 42(2) to be the victim of the offence or to act for the victim of the offence, when his wishes are ascertained under section 42(2), expresses a wish—

(a) to make representations about a matter specified in section 42(3), or

(b) to receive the information specified in section 42(4).

(3) The local probation board must—

(a) notify the managers of the hospital in which the patient is detained of that person’s wish and of that person’s name and address, and

(b) notify that person of the name and address of the hospital.

(4) Subsection (5) applies if a person who appears to the local probation board mentioned in section 42(2) to be the victim of the offence or to act for the victim of the offence, subsequently to his wishes being ascertained under section 42(2), expressed a wish to do something specified in subsection (2)(a) or (b).

(5) The local probation board mentioned in section 42(2) must take all reasonable steps—

(a) to ascertain whether the transfer direction given in respect of the patient continues in force and whether a community treatment order is in force in respect of him, and

(b) if the board ascertains that the transfer direction does continue in force—

(i) to notify the managers of the relevant hospital of that person’s wish, and

(ii) to notify that person of the name and address of the hospital.

(6) The relevant hospital has the meaning given in section 36A(6).”

12 In section 43 (the title to which becomes “Representations where restriction direction made”), in subsection (1), for “if section 42 applies” substitute “if, in a case where section 42 applies, the transfer direction in respect of the patient was given with a restriction direction”.

13 After section 43 insert—

“43A Representations where restriction direction not given

(1) This section applies if, in a case where section 42 applies, the transfer direction in respect of the patient was given without a restriction direction.

(2) Subsection (3) applies if—

(a) a person makes representations about a matter specified in section 42(3) to the managers of the relevant hospital, and

(b) it appears to the managers that the person is the victim of the offence or acts for the victim of the offence.

(3) The managers must forward the representations to the persons responsible for determining the matter.

(4) The responsible clinician must inform the managers of the relevant hospital if he is considering making—

(a) an order for discharge in respect of the patient under section 23(2) of the Mental Health Act 1983,

(b) a community treatment order in respect of him, or

(c) an order under section 17B(4) of the Mental Health Act 1983 to vary the conditions specified in a community treatment order in force in respect of the patient.

(5) Any person who has power to make an order for discharge in respect of the patient under section 23(3) of the Mental Health Act 1983 must inform the managers of the relevant hospital if he is considering making that order.

(6) A Mental Health Review Tribunal must inform the managers of the relevant hospital if—

(a) an application is made to the tribunal under section 66 or 69 of the Mental Health Act 1983, or

(b) the patient’s case is referred to the tribunal under section 67 of that Act.

(7) Subsection (8) applies if—

(a) the managers of the relevant hospital receive information under subsection (4), (5) or (6), and

(b) a person who appears to the managers to be the victim of the offence or to act for the victim of the offence—

(i) when his wishes were ascertained under section 42(2), expressed a wish to make representations about a matter specified in section 42(3), or

(ii) has made representations about such a matter to the managers of the hospital in which the patient was, at the time in question, detained.

(8) The managers of the relevant hospital must provide the information to the person.

(9) The relevant hospital has the meaning given in section 36A(6).”

14 In section 44 (the title to which becomes “Information where restriction direction made”), in subsection (1), for “if section 42 applies” substitute “if, in a case where section 42 applies, the transfer direction in respect of the patient was given with a restriction direction”.

15 After section 44 insert —

“44A Information where restriction direction not given

(1) This section applies if, in a case where section 42 applies, the transfer direction in respect of the patient was given without a restriction direction.

(2) The responsible clinician must inform the managers of the relevant hospital—

(a) whether he is to make an order for discharge in respect of the patient under section 23(2) of the Mental Health Act 1983;

(b) whether he is to make a community treatment order in respect of the patient;

(c) if a community treatment order is to be made in respect of the patient, what conditions are to be specified in the order;

(d) if a community treatment order is in force in respect of the patient, of any variation to be made under section 17B(4) of the Mental Health Act 1983 of the conditions specified in the order;

(e) if a community treatment order in respect of the patient is to cease to be in force, of the date on which it is to cease to be in force;

(f) if, following the examination of the patient under section 20 of the Mental Health Act 1983, it does not appear to the responsible clinician that the conditions set out in subsection (4) of that section are satisfied, of the date on which the authority for the patient’s detention is to expire.

(3) Any person who has power to make an order for discharge in respect of the patient under section 23(3) of the Mental Health Act 1983 must inform the managers of the relevant hospital if he is to make that order.

(4) Subsection (5) applies if—

(a) an application is made to a Mental Health Review Tribunal under section 66 or 69 of the Mental Health Act 1983,

(b) the patient’s case is referred to a Mental Health Review Tribunal under section 67 of that Act, or

(c) the managers of the relevant hospital refer the patient’s case to a Mental Health Review Tribunal under section 68 of that Act.

(5) The tribunal must inform the managers of the relevant hospital if it directs that the patient be discharged.

(6) Subsection (7) applies if a person who appears to the managers of the relevant hospital to be the victim of the offence or to act for the victim of the offence—

(a) when his wishes were ascertained under section 42(2), expressed a wish to receive the information specified in section 42(4), or

(b) has subsequently informed the managers of the relevant hospital that he wishes to receive that information.

(7) The managers of the relevant hospital order must take all reasonable steps—

(a) to inform that person whether the patient is to be discharged under section 23 or 72 of the Mental Health Act 1983;

(b) to inform that person whether a community treatment order is to be made in respect of the patient;

(c) if a community treatment order is to be made in respect of the patient and is to specify conditions which relate to contact with the victim or his family, to provide that person with details of those conditions;

(d) if a community treatment order is in force in respect of the patient and the conditions specified in the order are to be varied under section 17B(4) of the Mental Health Act 1983, to provide that person with details of any variation which relates to contact with the victim or his family;

(e) if a community treatment order in respect of the patient is to cease to be in force, to inform that person of the date on which it is to cease to be in force;

(f) if, following the examination of the patient under section 20 of the Mental Health Act 1983, the authority for the patient’s detention is not to be renewed, to inform that person of the date on which the authority is to expire;

(g) to provide that person with such other information as the managers of the relevant hospital consider appropriate in all the circumstances of the case.

(8) The relevant hospital has the meaning given by section 36A(6).

44B Removal of restriction

(1) This section applies if, in a case where section 42 applies—

(a) the transfer direction in respect of the patient was given with a restriction direction, and

(b) the restriction direction ceases to be in force while the transfer direction continues in force.

(2) Subsection (3) applies if a person who appears to the relevant local probation board to be the victim of the offence or to act for the victim of the offence—

(a) when his wishes were ascertained under section 42(2), expressed a wish to make representations about a matter specified in section 42(3) or to receive the information specified in section 42(4), or

(b) has subsequently informed the relevant local probation board that he wishes to make representations about such a matter or to receive that information.

(3) The relevant local probation board must take all reasonable steps—

(a) to notify the managers of the relevant hospital of an address at which that person may be contacted;

(b) to notify that person of the name and address of the hospital.

(4) While the transfer direction continues in force, the patient is to be regarded as a patient in respect of whom a transfer direction was given without a restriction direction; and sections 43A and 44A are to apply in relation to him accordingly.

(5) The relevant hospital has the meaning given in section 36A(6).

(6) The relevant local probation board has the meaning given in section 43(8).”

Interpretation

16 (1) Section 45 (the title to which becomes “Interpretation: sections 35 to 44B”) is amended as follows.

(2) In subsection (1)—

(a) for “44” substitute “44B”, and

(b) at the appropriate places insert—

““community treatment order” has the meaning given in section 17A of the Mental Health Act 1983;”,

““the managers” has the meaning given in section 145 of the Mental Health Act 1983;”,

““responsible clinician” means the responsible clinician for the purposes of Part 3 of the Mental Health Act 1983;”, and

““responsible hospital” has the meaning given in section 17A of the Mental Health Act 1983;”.

(3) In subsection (2), for “44” substitute “44B”.

(4) After subsection (2) insert—

“(3) A reference in sections 35 to 44B to a place in which a person is detained includes a reference to a place in which he is liable to be detained under the Mental Health Act 1983.

(4) For the purposes of section 32(3) of that Act (regulations as to delegation of managers’ functions, etc.) as applied by Parts 1 and 2 of Schedule 1 to that Act, a function conferred on the managers of a hospital under sections 35 to 44B of this Act is to be treated as a function of theirs under Part 3 of that Act.”’.—[Ms Rosie Winterton.]

Brought up, read the First and Second Time, and added to the Bill.

Schedule 6

Mental Capacity Act 2005: new Schedule A1

Amendments made: No. 51, page 89, line 44, at end insert ‘, or

(c) any section 39D IMCA.’.

No. 52, page 92, line 9, at end insert—

‘(d) the right to have a section 39D IMCA appointed;

(e) how to have a section 39D IMCA appointed.’.

No. 53, page 92, line 18, at end insert—

‘(7) Sub-paragraph (8) applies if the managing authority is notified that a section 39D IMCA has been appointed.

(8) As soon as is practicable after being notified, the managing authority must give the section 39D IMCA a copy of the written information given in accordance with sub-paragraph (4).’.

No. 54, page 101, line 22, at end insert—

‘(ba) any section 39D IMCA;’.

No. 55, page 108, line 22, at end insert—

‘(d) any section 39D IMCA.’.

No. 56, page 111, line 26, at end insert—

‘(d) any section 39D IMCA.’.

No. 57, page 116, line 9, at end insert—

‘156A A section 39D IMCA is an independent mental capacity advocate appointed under section 39D.’.

No. 58, page 116, line 10, at end insert—

‘or a section 39D IMCA.’.—[Ms Rosie Winterton.]

Schedule 8

Amendments relating to new section 4A of, & Schedule A1 to, Mental Capacity Act 2005

Amendments made: No. 60, page 129, line 41, leave out from ‘subsection (1)’ to end and insert—

‘after “relate” insert “or persons who fall within section 39A, 39C or 39D”.’.

No. 61, page 132, line 13, at end insert—

‘39D Person subject to Schedule A1 without paid representative

(1) This section applies if—

(a) an authorisation under Schedule A1 is in force in relation to a person (“P”),

(b) P has a representative (“R”) appointed under Part 10 of Schedule A1, and

(c) R is not being paid under regulations under Part 10 of Schedule A1 for acting as P’s representative.

(2) The supervisory body must instruct an independent mental capacity advocate to represent P in any of the following cases.

(3) The first case is where P makes a request to the supervisory body to instruct an advocate.

(4) The second case is where R makes a request to the supervisory body to instruct an advocate.

(5) The third case is where the supervisory body have reason to believe one or more of the following—

(a) that, without the help of an advocate, P and R would be unable to exercise one or both of the relevant rights;

(b) that P and R have each failed to exercise a relevant right when it would have been reasonable to exercise it;

(c) that P and R are each unlikely to exercise a relevant right when it would be reasonable to exercise it.

(6) The duty in subsection (2) is subject to section 39E.

(7) If an advocate is appointed under this section, the advocate is, in particular, to take such steps as are practicable to help P and R to understand the following matters—

(a) the effect of the authorisation;

(b) the purpose of the authorisation;

(c) the duration of the authorisation;

(d) any conditions to which the authorisation is subject;

(e) the reasons why each assessor who carried out an assessment in connection with the request for the authorisation, or in connection with a review of the authorisation, decided that P met the qualifying requirement in question;

(f) the relevant rights;

(g) how to exercise the relevant rights.

(8) The advocate is, in particular, to take such steps as are practicable to help P or R—

(a) to exercise the right to apply to court, if it appears to the advocate that P or R wishes to exercise that right, or

(b) to exercise the right of review, if it appears to the advocate that P or R wishes to exercise that right.

(9) If the advocate helps P or R to exercise the right of review—

(a) the advocate may make submissions to the supervisory body on the question of whether a qualifying requirement is reviewable;

(b) the advocate may give information, or make submissions, to any assessor carrying out a review assessment.

(10) In this section—

“relevant rights” means—

(a) the right to apply to court, and

(b) the right of review;

“right to apply to court” means the right to make an application to the court to exercise its jurisdiction under section 21A;

“right of review” means the right under Part 8 of Schedule A1 to request a review.

39E Limitation on duty to instruct advocate under section 39D

(1) This section applies if an advocate is already representing P in accordance with an instruction under section 39D.

(2) Section 39D(2) does not require another advocate to be instructed, unless the following conditions are met.

(3) The first condition is that the existing advocate was instructed—

(a) because of a request by R, or

(b) because the supervisory body had reason to believe one or more of the things in section 39D(5).

(4) The second condition is that the other advocate would be instructed because of a request by P.” ’.

No. 62, page 132, line 15, after ‘40’, insert

‘(as substituted by section [Independent mental capacity advocacy service: exceptions] of this Act)’.

No. 63, page 132, line 17, leave out from ‘for’ to end of line 18 and insert

‘“or 39(4) or (5)” substitute “, 39(4) or (5), 39A(3), 39C(3) or 39D(2)”.’.

No. 64, page 132, line 22, leave out from ‘matters’ to end of line 23 and insert

‘to which a duty mentioned in subsection (1) relates.”’.

No. 65, page 134, line 18, at end insert—

“Section 39D

Instructing independent mental capacity advocate when representative for relevant person under Part 10 of Schedule A1 to the Act is not being paid.”—[Ms Rosie Winterton.]

Schedule 9

Transitional provisions and savings

Amendment made: No. 66, page 136, line 41, at end insert—

‘Independent mental health advocates

(1) Section [Independent mental health advocates]—

(a) applies to a patient who is liable to be detained under the 1983 Act immediately before the commencement date as it applies to a patient who becomes so liable on or after that date;

(b) applies to a patient who is subject to guardianship under that Act immediately before the commencement date as it applies to a patient who becomes so subject on or after that date;

(c) applies to a patient who is a community patient under that Act immediately before the commencement date as it applies to a patient who becomes a community patient on or after that date.

(2) For the purposes of the provisions inserted by that section, a patient is to be treated as a qualifying patient within section 130C(3) of the 1983 Act if—

(a) not being a formal patient, he discussed before the commencement date with a registered medical practitioner or approved clinician the possibility of being given a form of treatment to which section 57 of that Act applies, and

(b) sub-paragraph (4) or (5) applies in relation to him.

(3) A patient is also to be treated for those purposes as a qualifying patient within section 130C(3) of the 1983 Act if—

(a) not having attained the age of 18 years and not being a formal patient, he discussed before the commencement date with a registered medical practitioner or approved clinician the possibility of being given a form of treatment to which section 58A of that Act applies, and

(b) sub-paragraph (4) or (5) applies in relation to him.

(4) This sub-paragraph applies in relation to the patient if, immediately before the commencement date, he has yet to be informed whether or not the treatment is proposed in his case.

(5) This sub-paragraph applies in relation to the patient if, immediately before the commencement date—

(a) he has been informed that the treatment is proposed in his case,

(b) the proposal has not been withdrawn, and

(c) the treatment has not been completed or discontinued.

(6) A qualifying patient in relation to whom sub-paragraph (4) applies and who is informed on or after the commencement date that the treatment is proposed in his case, or in relation to whom sub-paragraph (5) applies, remains a qualifying patient until—

(a) the proposal is withdrawn, or

(b) the treatment is completed or discontinued.

(7) In relation to a patient who is a qualifying patient within section 130C(3) of the 1983 Act by virtue of this paragraph, the responsible person under section 130D of that Act is to be the person with overall responsibility for the patient’s case (and subsection (2)(e) of that section is to be read accordingly).

(8) Sub-paragraph (9) applies in relation to a patient—

(a) who is a qualifying patient within section 130C(2) of the 1983 Act by virtue of being a formal patient immediately before the commencement date, or

(b) who is a qualifying patient within section 130C(3) of that Act by virtue of this paragraph.

(9) The steps to be taken under subsection (1) of section 130D of that Act are to be taken on, or as soon as practicable after, the commencement date (and subsection (3) of that section is to be read accordingly).

(10) In this paragraph—

“approved clinician” has the same meaning as in the 1983 Act,

“the commencement date” means the date on which section [Independent mental health advocates] comes into force, and

“formal patient” means a patient who is—

(a) liable to be detained under the 1983 Act (otherwise than by virtue of section 4, 5(2) or (4), 135 or 136 of that Act),

(b) subject to guardianship under that Act, or

(c) a community patient under that Act.’.—[Ms Rosie Winterton.]

Title

Amendments made: No. 67, line 1, after ‘1983’, insert

‘, the Domestic Violence, Crime and Victims Act 2004’.

No. 68, line 2, after ‘persons;’, insert

‘to amend section 40 of the Mental Capacity Act 2005;’.— [Ms Rosie Winterton.]

On a point of order, Mr. Deputy Speaker. May I draw to your attention the situation with regard to the lifts in 1 Parliament Street? Every time there is a Division—and I do mean every time—Members stand outside those lifts, sometimes for anything up to three minutes, waiting for one of them to do its job. The middle lift does not work at all and the two lifts either side of it have been subject to a long programme of so-called maintenance, which has meant that they do not do the job that they are meant to do. In view of the fact that we have only a limited amount of time to get to Divisions, will you draw this problem to the attention of the Serjeant at Arms, with a strong request for a solution?

I am grateful to the right hon. Lady for making that situation clear. It is obviously worrying and ongoing, and I am sure that the Serjeant will take note and see what can be done. There is a bar on non-Members using the lifts at that time, but if mechanical failure is compounding the problem, obviously that needs attention.

On a point of order, Mr. Deputy Speaker. I have just been informed by the chief executive of Shrewsbury and Atcham borough council that in the High Court today a judge has given my council a full judicial review of the Government’s unitary authority status programme. There were scathing comments about the behaviour of the Secretary of State for Communities and Local Government in that matter. Will the Minister come before the House tomorrow to explain Government policy in the light of that defeat?

That is not a matter on which I can rule. It seems to me that the correct procedure is not via a point of order. Other avenues are open to the hon. Gentleman to bring the matter further out into the open so that he can possibly get answers, a debate or something of that kind.

New Clause 4

Accommodation, etc.

‘(1) The 1983 Act is amended as follows.

(2) In section 39 (power of court to request information about hospitals), after subsection (1) insert—

“(1A) In relation to a person who has not attained the age of 18 years, subsection (1) above shall have effect as if the reference to the making of a hospital order included a reference to a remand under section 35 or 36 above or the making of an order under section 44 below.

(1B) Where the person concerned has not attained the age of 18 years, the information which may be requested under subsection (1) above includes, in particular, information about the availability of accommodation or facilities designed so as to be specially suitable for patients who have not attained the age of 18 years.”

(3) After section 131 insert—

“131A Accommodation, etc. for children

(1) This section applies in respect of any patient who has not attained the age of 18 years and who—

(a) is liable to be detained in a hospital under this Act; or

(b) is admitted to, or remains in, a hospital in pursuance of such arrangements as are mentioned in section 131(1) above.

(2) The managers of the hospital shall ensure that the patient’s environment in the hospital is suitable having regard to his age (subject to his needs).

(3) For the purpose of deciding how to fulfil the duty under subsection (2) above, the managers shall consult a person who appears to them to have knowledge or experience of cases involving patients who have not attained the age of 18 years which makes him suitable to be consulted.

(4) In this section, “hospital” includes a registered establishment.”

(4) In section 140 (the title to which becomes “Notification of hospitals having arrangements for special cases”), for the words from “for the reception” to the end substitute “—

(a) for the reception of patients in cases of special urgency;

(b) for the provision of accommodation or facilities designed so as to be specially suitable for patients who have not attained the age of 18 years.”’.—[Ms Rosie Winterton.]

Brought up, and read the First time.

With this it will be convenient to discuss the following: new clause 8—Age appropriate treatment

‘After section 131 of the 1983 Act (Informal admission of patients) insert—

“131A Admission to age appropriate setting and age appropriate treatment

(1) In the case of any child or young person under the age of 18 years who is admitted to any hospital or registered establishment for treatment for mental disorder, whether informally or otherwise, the responsible Primary Care Trust or Local Health Board shall , at the time of admission or as soon as reasonably practicable thereafter, appoint a registered medical practitioner or clinical psychologist with specialist training in child or adolescent mental health to assess the healthcare needs of the child or young person.

(2) It shall be the duty of the responsible Primary Care Trust or Local Health Board to provide the child or young person admitted to a hospital or registered establishment in accordance with subsection (1) with such healthcare services (whether by way of suitable hospital accommodation, specialist medical services or otherwise) as necessary to meet the healthcare needs as assessed under subsection (1).

(3) In this section the ‘responsible Primary Care Trust or Local Health Board’ means the Primary Care Trust or Health Authority responsible for providing healthcare services to the child or young person under the National Health Service Act 2006 (c. 41).”’.

Amendment No. 4, in clause 34, page 33, line 44, leave out ‘16’ and insert ‘18’.

Amendment No. 83, in clause 40, page 38, line 22, at end insert—

‘(2A) Subsections (3) and (4) below shall also apply in the case of a patient who has not attained the age of 16 years who is competent to consent to the making of the arrangements set out in subsection (1) above.’.

Government amendment No. 50

New clause 4 and amendment No. 50 are the result of further consideration that we have given to age-appropriate services for children and young people following detailed debates in the other place and in Committee, and discussions that I have had since then with YoungMinds, 11 Million—the new name for the Office of the Children’s Commissioner for England—and Lord Williamson of Horton, to whom I pay particular tribute. Lord Williamson tabled the initial amendment on the subject. He has also given us a lot of help in thinking through the Government amendments. There are those who say that his help has been so central to the debate that the new clause should be called the Williamson amendment.

Let me remind hon. Members about the background. The Children’s Commissioner for England’s powerful report “Pushed into the Shadows” was extremely timely in highlighting the bad experiences that some young people have had on adult psychiatric wards. Professor Aynsley-Green and his staff have been most helpful and constructive in discussions on how to tackle the problem. The children’s organisation YoungMinds researched that report for the children’s commissioner. It has also been a vigorous campaigner on the issue. It has always been willing to engage in constructive discussion to resolve the problem in a way that is acceptable to all and will be effective. Hon. Members who served on the Committee will know that I had reservations about implementing some of the changes that were requested, but following discussions with the organisations, and with Kathryn Pugh from YoungMinds, who has been a powerful and persuasive advocate for children, in particular, and with the realistic attitude that is being adopted, I think that we have found a way forward.

I am also aware that the Joint Committee on Human Rights, led by my hon. Friend the Member for Hendon (Mr. Dismore), has been supportive on this issue. Indeed, he has tabled new clause 8. I hope that following my remarks he will be reassured that new clause 4 and amendment No. 50 make it possible for him not to press his new clause to a Division.

New clause 4 will ensure that patients aged under 18 are detained in a hospital environment that is suitable for their age, subject to their needs. We have used the word “environment” because what matters to a child or young person goes well beyond mere physical segregation from older people, as I am sure right hon. and hon. Members appreciate. By using the word “environment” we can ensure not only that children and young people have separate facilities, but that they are appropriate physical facilities, with staff who have the right training to understand and address their specific needs as children, and a hospital routine that will allow their personal, social and educational development to continue as normally as possible. We do that by using the word “environment”, and by giving hospital managers a duty to ensure that that is the case.

The Minister makes a case that we find congenial, as she will have noticed because we have put our names to the new clause. Will she confirm that in cases when a person is referred to a hospital environment in another local authority area, which is not untypical in my constituency because of its geography, there will be adequate support that crosses the boundary so that their studies are supported and disruption is minimised?

One of the other changes that we are making will provide for a duty to ensure that people know what accommodation is available. As the hon. Gentleman acknowledged in Committee, when their needs are taken into account it is clear that some under-18s are better placed in adult psychiatric wards. Patients in CAMHS—child and adolescent mental health services—wards can also benefit from that. Our aim is to allow the necessary flexibility for such patients.

The duty to ensure that the patient’s environment is suitable lies with hospital managers, but the new clause requires them to consult a person whom they consider to have the necessary knowledge and experience of cases involving patients under 18. We have made the description fairly wide to allow for future changes in the qualifications of professionals, but for now we will make clear in the codes of practice for England and Wales that we expect such people to be tier 3 or tier 4 CAMHS specialists. I think that that covers some of the points raised in the House of Lords about the need to ensure that cases were dealt with by specialist CAMHS people rather than by people who did not understand the changes. We want to ensure that those who make the initial decision on whether to detain someone in hospital have the correct information about the availability of and arrangements for specialist beds, so that children are sent to appropriate hospitals.

I am a little concerned about the wideness of the prescription. The Minister said that she expected those consulted to be tier 3 or tier 4 specialists. What will happen when that expectation is not met and the opinion of the person described in the Bill is different—or does the Minister not expect such circumstances to arise?

If the hon. Lady is asking what would happen if a tier 3 or tier 4 specialist was not available, I can tell her that the new clause provides for a duty to ensure that a suitable person is available in such circumstances. I know from my meetings with YoungMinds, the children’s commissioner and Lord Williamson— who has reflected the views of peers—that they support the new clause. However, they want an assurance that we have a performance management framework, and I assure the House that we intend to provide one. All along, it has been argued that merely legislating for something to happen does not necessarily make it happen. We could sit here patting ourselves on the back for having introduced legislation, but unless the services are there it will not be possible for us to deliver for people as we would wish.

Has the model not been set in cancer services, where charities such as the Teenage Cancer Trust have fought for young people to be placed in separate wards? Indeed, the whole charity movement has combined with the state to provide wards featuring the expertise that the Minister describes. What is the problem with doing the same in mental health?

My hon. Friend is right. We know that we can achieve such changes when people put their minds to it. The issue is legislation. It has been made clear to me that because some of the issues involve compulsory detention, it is right for us to make an exception. I suspect that the cancer provisions are not in legislation, whereas we are using legislation that constitutes something of a step change—but, as my hon. Friend says, we know that such developments are possible.

We have been working on this issue for some time. In April 2005 we began collecting detailed information about the use of adult psychiatric wards for children and adolescents in England to allow performance management of that aspect of the service. We are making capital available to the NHS to increase the availability of in-patient facilities for adolescents, and to reduce reliance on adult wards.

In November last year the Under-Secretary of State for Health, my hon. Friend the Member for Bury, South (Mr. Lewis), who is responsible for care services, made a commitment that within two years no child under 16 in England would be placed in an adult ward while being treated for a mental disorder. To ensure that that commitment is fulfilled, the director general of commissioning in the Department of Health has written to the chief executives of strategic health authorities setting out new reporting requirements on the use of adult psychiatric wards by children aged 16 and under.

Any exceptional case of a child of 16 or under being placed in an adult psychiatric ward must be reported to the strategic health authority as a serious untoward incident, and the SHA must in turn notify the Department. We would expect the child not to stay in the ward for more than 48 hours. The ward would be specially equipped to deal with the child, and staff dealing with the child would be appropriately qualified.

I can reassure the House that the Government are working to develop performance measures for 2008-11 public service agreements and a health and social care outcomes framework. As part of that work we are considering a range of indicators, including a CAMHS indicator. Regulators have an ongoing responsibility to assess performance, which includes the commissioning of age-appropriate services. We need to ensure that they are being commissioned properly. To help that, the Care Services Improvement Partnership is developing a commissioning framework specifically for CAMHS. We will have continuing discussions with the Healthcare Commission to ensure that the monitoring of age-appropriate services is one of its priorities. We have also agreed to keep YoungMinds and the children’s commissioner informed of our progress on performance management.

We have not specified a commencement date in the Bill, because we do not feel that that would be productive. We would probably have to err on the side of caution, and we think we can probably achieve some of the changes soon. I want that to happen; I do not want to specify a date that kicks the matter into the future and sends a mixed message to the NHS. However, I emphasise the Government’s clear and firm intention to invest resources so that we can implement the provision as soon as possible. Our aim is to implement it fully in England by around April 2010. Amendment No. 50 gives us the flexibility to allow, for example, new section 131A to be implemented in relation to part 2 and informal patients in England as soon as resources allow, rather than our having to wait until it can be implemented for part 2, informal and part 3 patients in England. I am sure that YoungMinds, the Children’s Commissioners for England and Wales and Members of this House and the other place will track progress on this issue.

Amendment No. 4 was tabled by my hon. Friend the Member for Bridgend (Mrs. Moon), and I will listen carefully to what is said about it. Her amendment would increase safeguards for 16 and 17-year-olds by ensuring that their cases are referred to the tribunal by hospital managers after one year, where the patient has not used their right to apply or their case does not otherwise come before the tribunal. I said in Committee that I was sympathetic to the intentions behind the amendment but that I wanted to look further into some of its financial and operational implications. My officials recently came back to me on that. They reassured me that the impact would be operationally manageable for both hospitals and the mental health review tribunal, so at this stage I am supportive of my hon. Friend’s amendment. I look forward to hearing her speech, and any other contributions on her proposal.

Amendment No. 83 would extend the provisions in clause 40—which was inserted by a Government amendment in the other place—to under-16s who are competent to consent to the making of arrangements for their informal admission to hospital for the treatment of mental disorder. That raises complex issues, and an amendment to the Bill is not the right way to address them. Most 16 and 17-year-olds will be able to understand, and make an informed decision about, being admitted to hospital except where they lack capacity, but that is not the case for under-16s. Each case needs careful consideration. The Government consider that the position of under-16s—both those who are Gillick-competent, and those who are not—can best be set out in guidance in the code of practice. Guidance can go into this difficult area in much greater detail and can be updated more easily in line with developments in case law. Therefore, I ask the hon. Member for Romsey (Sandra Gidley) to withdraw the amendment.

I hope that the Government amendments will be welcomed by all Members. They are the result of fruitful and constructive discussions by various organisations—and also by Members of the other place, which I greatly appreciate. I will listen carefully to the arguments—which I am sure will be very persuasive—of my hon. Friend the Member for Bridgend, but I do not at this stage accept the amendment of the hon. Member for Romsey.

I find myself for the second time this evening congratulating the Minister on having listened—at long last, and despite having thrown a bit of a strop in Committee on this subject—and on having returned with worthwhile amendments. Although they do not go explicitly as far as some of us asked, their spirit is very much in keeping with what we hoped for. I join her in paying tribute to the excellent work of Lord Williamson in another place, who to a great extent kicked off the consideration of this issue by introducing a measure under which three conditions were to be met: admission to age-appropriate settings, and medical assessments by a CAMHS specialist and by a clinical supervisor specialist. That provided a good starting point to lay out the importance of this subject; many Members of this House and of the other place, and many people in YoungMinds and other mental health organisations, feel strongly about it, as do many young people suffering from mental illness.

I also join the Minister in paying tribute to YoungMinds and the sterling work of Kathryn Pugh, who follows our deliberations closely. I can say that without having to declare an interest—unlike the hon. Member for Southport (Dr. Pugh) if he wishes to reiterate that praise when he comes to speak.

I also pay tribute to the report of “Sir 11 million” as we now must call the children’s commissioner. “Pushed into the shadows: young people’s experience of adult mental health facilities” reported some shocking testimonies of the experiences of young people who had found themselves in traumatic periods of their lives in wholly inappropriate and very depressing and traumatic environments. In a variety of witness evidence that Members of both Houses received, we heard some brave and devastating testimonies, particularly from teenage girls, about such experiences in adult acute mental health wards. They told us about having to use mixed-sex bathrooms and about being in wards with older men who had committed violent acts, and they also told us that no education facilities were provided for them. At important stages in their educational career they found themselves in a mental health institution with no way of getting back to some degree of normality by furthering their education. One of our witnesses said that eating was the only recreation. We also heard about problems to do with siblings aged under 18 not being able to visit.

The testimony of one witness, Antonia, was especially stark, and it might be helpful if I repeat some of it. She said that in order to be in an adolescent service,

“I would rather go to Scotland than be 10 minutes down the road from my home.”

That serves to emphasise how important it is to have age-appropriate treatment. Even if she had to go a long way to get it, that was preferable to being placed more conveniently closer to home in an inappropriate setting.

I am pleased that the Government have taken on board the comments that have been made, and that the amendments cover all those aged under 18. There was a big argument about how we address 16 and 17-year-olds—it is completely inappropriate for many in that age group to be placed in adult wards, but for some of them it is more appropriate. In our amendments in Committee we were at pains to retain the flexibility that 16 or 17-year-olds could be admitted to adult wards if appropriate. However, that must be decided on the basis of its appropriateness to their therapeutic benefit and recovery. I welcome the fact that all under-18s and voluntary and detained patients will be covered and that reference is made to the fact that a suitably qualified practitioner should be consulted at the assessment prior to admission.

The code of practice will need to explain what a suitable environment is—I believe that it will do so—and also provide an explanation of the different needs of a child. Another matter that must be addressed is the placing of a duty on commissioners to inform local authorities where beds have been commissioned. Primary care trusts and health boards will have to tell local authorities where CAMHS beds have been commissioned for the local area.

I think that we are happy to take the timing of the enactment of this provision on trust, just as we took the Minister at her word in Committee when she promised to look at this issue and come back with something more definitive, which she has now done. I realise that some perverse incentives are potentially built in, in that areas that are more advanced in their provision of CAMHS facilities might take their foot off the gas if they are told that everything has to come in by a certain date; we need to prompt the less advanced areas to make sure that they provide those facilities. I know that there is a particular problem in Wales, for example, and the hon. Member for Caernarfon (Hywel Williams) might wish to refer to it in a little while.

All of us will feel let down and disappointed if we find ourselves coming back to this place in three years time to consider this issue and not a lot has changed. We need some strong assurances from the Minister that it will be a real priority for her Department, and we perhaps need some explanation of a strong performance-management framework to complement the legislation, so that we can judge whether progress is being made and how fast, and judge what extra support or attention might need to be given in the meantime. There is a possibility, as YoungMinds pointed out, that some adult hospitals might interpret the provision in such a way that it will lead them to refuse all under-18-year-old patients. The Friday night scenario of clinicians phoning unit after unit to find one that will accept an under-18-year-old would then get worse, particularly if PCTs or health boards did not have to ensure adequate provision.

We need a performance management framework or targets, although we are not great fans of the latter, to make sure that local partners understand their duty to commission sufficient capacity to ensure that age-appropriate facilities are available, and that local providers act in a manner that reflects the duty to co-operate to meet the needs of the child or young person, as enshrined in the Children Act 2004. This has got to be a joint effort and as the Minister rightly said, that is not going to happen if the services are not in place. This legislation should not be a substitute for services; rather, it should be a serious spur to the providers to make sure that services are available and appropriate and are being used properly, and that as many of our children and young people as possible are being picked up and given the appropriate treatment that they need and deserve.

We will track closely the progress of this measure, as the Minister has mentioned. I shall be interested to hear what the hon. Member for Hendon (Mr. Dismore) has to say about his new clause 8, with which I have a deal of sympathy because it places greater duties specifically on commissioners and PCTs, and not just on hospital managers. As I said, this is a team effort in which a joined-up approach involving everyone will be absolutely essential.

I have to say that the Government have moved a long way. They have listened to a very compelling argument that was started in Parliament in the Lords, but which was first started by charities such as YoungMinds and by brave young people themselves coming forward and saying that the current arrangements are just not good enough. As the Mental Health Act Commission found in its report, a young person a day was being inappropriately admitted to adult acute wards, and the therapeutic benefit of those establishments in terms of the appropriateness of treating such young people was being seriously called into question. We are delighted that the Government have tabled these new clauses and we will certainly support them, but that support will not be given without a deal of assurances about how they are going to work in practice, and an assurance that the Minister is going to keep on the case of those responsible for ensuring that the measures become a reality.

New clause 8, which is in my name, is designed to give effect to the recommendations in paragraphs 1.16 and 1.17 of the 15th report of the Joint Committee on Human Rights. Before I get to the meat of what I have to say, perhaps I might compliment my right hon. Friend the Minister on engaging very constructively with the Committee. Indeed, she gave lengthy and detailed responses to our two reports. Unusually, we reported twice on this Bill, which is very complex and raises some fundamental issues of freedom and liberty; that is why we felt it necessary to go into such detail. I am very grateful to my right hon. Friend for engaging so constructively with us.

In considering new clause 8, we need to look at the United Nations convention on the rights of the child, which the UK has ratified, and to recognise that the Bill impacts on and engages a number of the convention’s articles: article 3, on the need to recognise the best interests of the child when acting concerning children; article 12, which requires consideration of children’s views in decisions on issues affecting them; and article 19, which is designed to protect children from all forms of violence, injury, abuse, neglect, maltreatment or exploitation. Of course, the article 19 right also engages article 3 of the European convention on human rights.

I do not want to go into the underlying reasons for such a provision in detail; they have been adequately outlined already in the debate, particularly with reference to the children’s commissioner’s report, which has highlighted some of the serious problems and risks of abuse associated with placing children on adult psychiatric wards. We recommended the adoption of an amendment to ensure that young people receive age-appropriate assessment and placement, while at the same time not rendering illegal the placement of a child on an adult ward if that is the only way that their needs can be met. When we tabled the new clause, we had not seen the Government’s proposals, and I am delighted that they have tabled new clause 4, which represents a very satisfactory way forward as far as my Committee is concerned. In the circumstances, I do not propose to press new clause 8 any further, as my right hon. Friend the Minister has gone far enough to satisfy the concerns raised in our report.

The Minister was clear, in as much as she is not going to accept my amendment No. 83 and asked me to withdraw it. However, I thought it worth clarifying why I tabled it. It is an attempt to make it clear that children under 16 who are competent to make decisions can either consent to or refuse to agree to their admission to hospital for treatment of mental disorder. If such a child does not agree to being admitted to hospital, this refusal cannot be overridden by a person with parental responsibility. The amendment achieves this by extending the remit of section 131 of the 1983 Act, which relates to informal admission, to cover children under 16 who are considered competent to make such decisions.

If the amendment is accepted, a person with parental responsibility would not be able to agree to the child’s being informally admitted to hospital if the child is deemed competent to make this decision and is refusing to be admitted. Where a competent child refuses to agree to admission to hospital for treatment for mental disorder, the mental health professionals involved would need to consider whether the criteria for admission to hospital under the 1983 Act are met, and in a small number of cases the powers under the Children Act 1989 may be appropriate.

As the Minister said, clause 40 of the Bill will amend section 131 of the 1983 Act. This was a Government amendment introduced in the other place, and it makes it clear that a 16 or 17-year-old who is capable of making such decisions may decide whether or not to be admitted to hospital for treatment for mental disorder, and that that decision cannot be overridden by a person with parental responsibility. That amendment was welcome and clarifies the position of 16 and 17-year-olds, but it is also important to clarify the position of Gillick-competent children. A child is generally considered Gillick-competent if they have sufficient understanding and intelligence to understand fully what is being proposed, and to be capable of making up their own mind on the matter.

The Minister said that this issue is complex, and I agree; indeed, that is partly the motivation behind tabling this amendment. There is great uncertainty in the law, and this is an attempt to clarify it. There is a certain amount of confusion among practitioners responsible for the care and treatment of children and young people with mental health problems. It has commonly been accepted that the refusal of a Gillick-competent child or young person to accept medical treatment can be overridden by a person with parental responsibility for them. There is case law to that effect. In the area of mental health, that has led to great uncertainty among professionals. If the young people have complex mental health care needs, the professionals have to rely on parental consent in the face of disagreement from the young person. In some cases, that uncertainty has caused delay in making the appropriate arrangements for the treatment and care of the young child or person. I am sure that we would all wish to avoid that happening.

If a parental decision overrules a child under 16, it can cause longstanding tensions between the child and parent. It is usually a stressful time for them and it seems unfair to place the weight of responsibility for that decision on the parent. There is also the question of respecting the rights of the child. If he or she is competent to make the decision, for example, to refuse admission to hospital, relying on parental consent to authorise the admission could breach the child’s right to liberty under article 5 of the European convention on human rights. That is acknowledged in the draft code of practice. Richard Jones, an expert in mental health law, states:

“It is likely that the Court would hold that a parental consent to the admission of a mentally competent child to a psychiatric hospital violates Art. 5 if the child objects to the admission.”

The Government’s approach appears inconsistent, because the Bill’s provisions on community treatment orders cover child community patients under 16 years of age, but do not address the problem I have described. The Department has previously indicated that case law has developed to give greater autonomy to children and young people and it is no longer the case that a person with parental responsibility can override the refusal of a child or young person, of whatever age, who has the capacity to make such decisions for him or herself. The indication was therefore that it was not necessary to include this issue because the case law is clear. For example, Lord Hunt of Kings Heath has said that

“more recent cases demonstrate the trend towards greater autonomy for young people.”—[Official Report, House of Lords, 15 January 2007; Vol. 688, c. 545.]

The Government’s reasons for taking that approach are outlined in Lord Hunt’s letter to Baroness Walmsley of 16 January 2007. But the case cited by Lord Hunt— R v. Secretary of State for Health (Axon)—relates to consent to advice and treatment and the duty of confidentiality. It considered how medical professionals should deal with young people who are Gillick-competent and want advice on sexual matters, but who cannot be persuaded to inform their parents or to permit the medical professionals to do so. It does not address the issue of a competent child’s refusal of medical treatment.

The Minister mentioned guidance, and the most important point is that the draft illustrative code of practice to the Mental Health Act 1983, which has been published to help people to understand the Bill, removes references to the refusal of a Gillick-competent child or capable 16 or 17-year-old being overridden by a person with parental responsibility. However, it cites no case law to support that view nor does it provide any explanation for the change in approach. It would be helpful if the Minister could clarify when the guidance will be produced and what form it will take, because another publication, “The Reference Guide to Consent for Examination and Treatment”, issued by the Department in 2001, claims that it

“sets out in detail the current English law on consent”.

That document refers to parental consent overriding the refusal of a competent child or young person. Although it suggests that that power should be used rarely, it also highlights the lack of clarity on the issue by acknowledging that

“no definitive guidance has been given as to when it is appropriate to over-rule a competent young person’s refusal”.

The issue is very confused and medical practitioners receive conflicting advice in different publications by the Department. The amendment was an attempt to avoid further confusion and provide an explicit statutory provision that those with parental responsibility cannot override the competent refusal of a child—

May I intervene simply to praise the work of YoungMinds and my sister-in-law, Kathryn Pugh, in particular? I would not want to be the only Front-Bench spokesperson not to do so tonight.

I thank my hon. Friend for declaring his interest, which he hinted at earlier.

Without amendment of the law, there will continue to be great uncertainty in this important area. It is an issue that affects relatively few children and young people, but for those whom it does affect it can have long-lasting effects on their lives. I hope that the Minister will explain how she will provide greater clarity for practitioners dealing with those sensitive issues.

A significant number of changes have been made to the Bill, many of which will greatly improve mental health services, especially for young people. The initial criticism was that the Bill would not make enough changes, but no one could claim now that Ministers have not listened. Our debates in Committee have borne fruit and changes are being made, especially to age-appropriate services, settings and specialists for those under 18.

Some of the evidence that we heard, which hon. Members have described, was about the lack of education for young people, the difficulty in accessing family members and the anxiety and fear that they experienced on adult wards. Those points have been recognised and the changes that will be in place by 2010 will address all the issues.

Amendment No. 4 would ensure that services for 16 and 17-year-olds came into line with the services proposed for under-16s in new clause 4, so that those who do not request a review will get one annually rather than every three years, as at present. That seems only right. Life at 16 and 17 can be distressing. Young people of that age change fast, their emotions are changeable, difficult and contradictory. Physical changes and emotional turmoil can be extreme. It is also a time when people are trying to find their voices, put their own ideas and find their own competency. If we are to help young people of 16, 17 and 18 who are struggling to find mental stability and competency, it is only right that they have the opportunity to request a review every year, so that they can look again at their lives, the decisions they have made and the mental health troubles they are experiencing. Services can then be reviewed and their decisions challenged.

I welcome the Minister’s generosity in saying that she will consider amendment No. 4, because it will give 16 and 17-year-olds access to the services in new clause 4. I hope that it will ensure that they will have the annual reviews necessary at that vulnerable time in their lives. As they enter adult life, they should still have the rights of a child to have their lives examined and questioned and their voices heard.

Will my hon. Friend clarify whether organisations such as YoungMinds and the children’s commissioner would support us if we were to adopt her proposal?

That was where I was going next.

YoungMinds and the children’s commissioner—a children’s commissioner service was first established in Wales, so yet again Wales has led the way—have welcomed the proposal. It is only right that justice is available for young people. YoungMinds strongly advocates the acceptance of amendment No. 4, which stands in my name and those of my fellow Committee members.

Thank you, Mr. Deputy Speaker, for calling me to speak in this good-natured debate. I assure you and the Minister that there will not be any strops from this Member of Parliament. There have been strops in the past, but he is in a very good mood and has had supper, so he is well balanced and his sugar levels are where they should be.

I welcomed the Minister’s statement on new clause 4, which represents a great step forward, but I must express my concerns, although I will do so less eloquently than my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton). Adult wards are accommodating children, which suggests that there is a shortage of appropriate facilities in this country for young people with mental health problems. My hon. Friend said that people would rather go to appropriate facilities in Scotland than an adult mental health ward near their home. I hope that young people will not have to make such a choice and that appropriate facilities will be available near their homes. It is important that young people have their family and friends nearby at a difficult and traumatic time in their lives.

Will the Minister clarify where the resources will come from to fund the creation of additional suitable environments? She will be aware that Hertfordshire’s mental health trust is having to make significant cuts to its budget to contribute towards addressing the PCT deficit. I hope that the money for the creation of appropriate facilities will not be taken from another part of the mental health budget through a process of robbing Peter to pay Paul. The money should be additional to that already in the system and overall budgets should expand to ensure that young people are given suitable accommodation so that we can make them well as quickly as possible and return them to their families and friends in good time.

I thank the hon. Member for East Worthing and Shoreham (Tim Loughton) for his support. He talked about perverse incentives, which have been mentioned before. We did not want the Bill to lead to people being turned away from treatment, which is why we have adopted our approach. I assure him that we will engage with YoungMinds and the children’s commissioner. For the purpose of the debate, I will not use the title “11 Million” in case that gives the impression that we will consult 11 million people, given that that would probably be slightly beyond what we could achieve. I am sure that the Opposition will continue to hold us to account until 2010 and beyond.

Obviously, there will still be a Labour Government.

I thank the Committee chaired by my hon. Friend the Member for Hendon (Mr. Dismore) for its interest in the Bill and its probing and detailed approach. I thank him for his comments about the way in which I have engaged with the Committee and for saying that he will not press new clause 8 to a Division, in recognition of the fact that the Government’s position has moved.

The hon. Member for Romsey (Sandra Gidley) was ably assisted by the hon. Member for Southport (Dr. Pugh)—I am sure that his relatives will note the interest that he declared. I have tried to explain why amendment No. 83, which was tabled by the hon. Member for Romsey, is unacceptable.

The hon. Lady called for greater clarity. As I said, we will examine the code. We will also continue to discuss with YoungMinds and the children’s commissioner the way in which we develop consolidated CAMHS guidance for practitioners, which is her particular concern, so that we can bring together a lot of necessary information and existing guidance. I assure her that we will keep her informed, perhaps through the organisations on behalf of which she spoke. If she knows of other organisations with concerns outwith those that I have named, she might like to let me have that information so that I can ensure that officials liaise with them on the guidance.

The hon. Member for Broxbourne (Mr. Walker) raised the question of cost and talked about the importance of services near to home. In my opening remarks, I pointed out how we are examining the commissioning of services with the Care Services Improvement Partnership. If we can get proper commissioning and the performance management about which we have talked—perhaps we could ask the Healthcare Commission to examine this matter—we can ensure that services are as near to home as feasible and that people are aware of where beds are available.

We will give funding estimates, and we will ensure that the health service has the necessary funds available. Our estimates suggest that there will be overall capital costs of £10 million as well as ongoing revenue costs. We will work closely with the health service. As hon. Members will know, we have already made announcements about this matter.

My hon. Friend the Member for Bridgend (Mrs. Moon) was right that 16 and 17-year-olds—those affected by amendment No. 4, which she tabled—are at an extremely vulnerable time of their lives. I was struck by the fact that she said that YoungMinds and the children’s commissioner were especially supportive of the amendment. I get the feeling that it is supported by hon. Members on both sides of the House, and we will certainly accept it. I congratulate her on introducing it.

No, my hon. Friend should not withdraw her amendment at this stage. The best thing would be to leave it in the hands of the House so that the Government can accept it.

I urge the House to support all the amendments that I have talked about, but to oppose amendment No. 83, which the hon. Member for Romsey tabled.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

Clause 9

Amendments to Part 2 of the 1983 Act

I beg to move amendment No. 70, page 5, line 37, at end insert—

‘(aa) in subsection (3)—

(i) after paragraph (a) insert—

“(aa) to arrange for the patient to be examined by the registered medical practitioner or chartered clinical psychologist who has been professionally concerned with the medical treatment of the patient; or if no such practitioner is available, a registered medical practitioner or chartered clinical psychologist who is an approved clinician; and,”

(ii) in paragraph (b), for “if it appears to him that the conditions set out in subsection (4) are satisfied, to” substitute “if the responsible clinician and the medical practitioner or chartered clinical psychologist (as the case may be) agree that the requirements of subsection (4) are satisfied, the responsible clinician shall”’.

With this it will be convenient to discuss the following: amendment No. 93, page 5, line 37, at end insert—

‘( ) In subsection (3), leave out from end of paragraph (b) to end of subsection and insert—

“(3A) Where a report under subsection (3) above is furnished in respect of a patient the managers shall arrange for an approved clinician who is a member of a different profession to that of the responsible clinician to examine the patient;

(3B) If it appears to him that the conditions set out in subsection (4) below are satisfied the approved clinician shall furnish to the managers of the hospital where the patient is detained a report to that effect in the prescribed form and where such a report is furnished in respect of a patient the managers shall, unless they discharge the patient, cause him to be informed.”.’.

Government amendments Nos. 6 to 9.

Amendment No. 73, in clause 13, page 9, line 38, at end insert—

‘(3) In section 72 (powers of tribunals) after subsection (1) insert—

“(1A) In determining whether they are not satisfied that a patient is suffering from mental disorder of the requisite nature or degree for the purposes of subsections (1)(a)(i), (1)(b)(i), (1)(c)(i) or (4)(a) a tribunal must hear evidence from a registered medical practitioner approved for the purposes of section 12 of this Act or, in an appropriate case, from a chartered clinical psychologist.”.’.

Amendment No. 95, in clause 22, page 14, line 23, at end insert—

‘(c) an approved clinician shall not make a report for the purposes of renewal of detention under section 20’.

Government amendments No. 13, 15, 35, 38, 40, 44, 47 and 48.

My right hon. Friend the Minister of State has yet to convince us on the point with which our amendments deal, and a meeting of minds may not occur. However, I hope that she will be able to make further progress on convincing us when she responds to the amendments.

Amendments Nos. 70 and 73 in this group, and amendment No. 79 in the next, are designed to give effect to the recommendations of the Joint Committee on Human Rights in its fourth report at paragraph 26, and its 15th report at paragraphs 1.7 to 1.14. Our amendments would ensure that registered medical practitioners provide objective medical evidence of a mental disorder to justify detention and to cases before mental health tribunals. Our concern is that case law from the European Court of Human Rights—in particular, Winterwerp v. Netherlands and Varbanov v. Bulgaria—requires that objective medical evidence of a true mental disorder justifying detention should come from a medically qualified expert who has recognised skills in psychiatric diagnosis and treatment. The Bill’s current provisions do not require that.

A surprisingly broad range of professional groups will be eligible to provide objective medical evidence of mental disorder, including occupational therapists and social workers. All must demonstrate an extensive list of competences, but some of the competences are very broad indeed. In our 15th report at paragraph 1.13, we make the point that it is not specified how people will demonstrate that they have those competences. We state:

“The regulations say that the relevant authorities must have regard to references, but there seems to be no requirement for an examination.”

The Committee points out that the approval process under section 12 of the 1983 Act that applies to doctors does not, in our view, work in relation to the competences, because many of the skills in question are medical skills, and occupational therapists and social workers do not already have the same baseline qualifications as doctors have.

Our report continues:

“Second, the competencies relating to assessment require first an ability to identify the presence or absence of mental disorder and its severity… One competency refers to the ability to undertake a 'broad mental health assessment and formulations (sic) incorporating biological, psychological, cultural and social perspectives.' Frequent use is made of the term 'broad'. The competencies require a 'broad understanding' of different mental health treatment approaches. It is questionable whether 'broad competencies'”

are sufficiently rigorous to

“meet the intention behind the Convention safeguard of objective medical expertise.”

Our concern is that

“The European Court of Human Rights might well uphold a challenge based on Winterwerp and Varbanov in a specific case where, for example, detention was renewed on the basis of a report from an occupational therapist without evidence from a doctor that the patient continued to suffer from mental disorder of a nature or degree warranting confinement.”

In her helpful letter in response to that report and the question how competences might be demonstrated, my right hon. Friend the Minister of State said that

“we will be working with stakeholders to determine the kinds of experience and training that would enable a professional to demonstrate the competencies.”

In other words, the detail is yet to be worked out. I believe that she accepts that the competences are rather broad. It is interesting to see how the problem is described in a briefing produced on behalf of a range of organisations, including Unison, the Royal College of Nursing, occupational therapists and the British Psychological Society. Those organisations say that

“the responsible clinician role should be competency based”

but point out that

“Responsible clinicians will be extremely experienced members of staff”

who

“will have met strict criteria”

and who

“would have to pass several…thresholds”

and so on. In other words, in anticipation of the details being worked out, they make favourable assumptions, which I am sure my right hon. Friend will confirm. However, the detail is simply not there yet.

The reason that is important is set out in the briefing from Mind, which points out that we are talking about a person potentially losing their liberty

“for up to 12 months on the say of a single professional.”

Mind emphasises that

“Renewing detention is no less important or difficult than the original decision to detain.”

and says that

“At the very least there should be two suitably qualified professionals from different disciplines agreeing the detention.”

As a member of the Joint Committee chaired by the hon. Gentleman, I have co-signed the amendment. I rise to assure him that, as someone who is clinically qualified, I think that he is on to a critical point. I am always in favour of extending doctors’ roles to other professions, but in relation to a loss of liberty for a long period, it is necessary to have the assurance that competence has been adequately assessed.

I am grateful to the hon. Gentleman, whose professional background has enabled him to play an important role in our consideration of the Bill.

The point made by Mind is repeated by the Mental Health Alliance, representing patients in this context. It states:

“The position under the 1983 Act, whereby a single doctor decides whether or not to renew a patient’s detention for up to twelve months is unacceptable.”

The Alliance believes reform is needed that would satisfy the following principles—at least two professional opinions should agree the detention, with those opinions coming from different disciplines, and at least one of them providing the ‘objective medical expertise’ required by human rights legislation.”

When looking at renewal of detention, the British Medical Association also says that renewal should require opinions from

“two professionals, from different professional backgrounds, one of whom must be able to provide ‘objective medical expertise’…as required under the European case-law”.

In other words, the BMA makes the same point as the Joint Committee. The Royal College of Psychiatrists and the Royal Society reach similar conclusions in a briefing that they prepared on the Bill.

The Joint Committee is worried that, if the proposals in the Bill are passed as they stand—simply based on broad competences, without any of the detail fleshed out—the UK is at risk of falling foul of the European Court of Human Rights in cases where detention under the Mental Health Act has not been authorised by a properly qualified medical practitioner. That is a real risk. I know that there are other legal views, but the Joint Committee has a good track record in offering opinions on such matters. I suspect that our opinion is more likely to be correct than legal opinions produced by those who are perhaps not quite as objective and independent as the Committee, to justify a particular cause or pressure group’s views.

I hope that my right hon. Friend the Minister of State will provide more detail of what is going on in relation to competences. If she does, we might yet achieve the meeting of minds that has eluded us thus far.

I ask the House to support Government amendments Nos. 6 to 9, 35, 38, 40, 44, 47 and 48, which deal with some small inconsistencies in parts 4 and 4A of the Mental Health Act 1983 that would otherwise result from the introduction of the role of the approved and responsible clinician.

Let me set out the background to why we believe that the responsible clinician role that we have set out in the Bill is extremely important. We spent some 10 years considering how to expand the team that takes care of people who have mental health problems. We have considered a multidisciplinary approach and giving new roles and responsibilities to others in the team, and we want to put that into practice by introducing the role of the responsible clinician. Some fears have been expressed about the introduction of that new role, because people wonder whether they will be experienced enough to take on new responsibilities. I appreciate the work that my hon. Friend the Member for Hendon (Mr. Dismore) has put into this issue. Perhaps we can give some reassurance by giving his Committee more information on the competences that we expect people who take on the role of responsible clinician to have. In those cases, we are talking about experienced psychiatric nurses, who may be nurse consultants, and about clinical psychologists. They have had years of training to get to the positions that they occupy. Beyond that, we are talking about new competences that we will discuss with the professions and others to make sure that when people get that new responsibility, they are perfectly able to deal with the medical issues that come before them.

The other issue that has arisen is whether what is known as the Winterwerp judgment dictated that medical expertise could be provided only by a doctor. I understand that there is an independent Queen’s counsel report from the Royal College of Psychologists on that judgment, and it has shown that medical expertise does not always have to be provided by a doctor. We are talking about others in the team, trained to a very high standard, who would be able to give medical expertise to patients who have been under their care for a long time. As my hon. Friend the Member for Hendon may know, 85 per cent. of those who work in mental health services have broken away from the Mental Health Alliance because they are very concerned. They include members of Unison and Amicus, the Royal College of Nursing, and the British Psychological Society, and occupational therapists, who all feel strongly that to undermine the role of the responsible clinician by accepting amendments that would limit that role is not an acceptable way forward.

I hear the point that the Minister makes; it was inevitable that she would make it. The five groups that she mentioned broke away from the alliance on a specific point. Does she accept that many members of the Royal College of Psychiatrists and the British Medical Association feel that the Government’s stance could undermine the position of psychiatrists and their highly trained, highly skilled role? However, our amendments in no way try to undermine the role of other vital professionals involved in multi-agency working, so it is not an either/or situation.

I certainly accept that some psychiatrists are worried about other people taking on the responsibilities that we have defined. I also accept that the hon. Gentleman has moved some way from his previous position, but his amendment No. 93 makes it very likely that a person who does not even know the patient could override the decision of the patient’s responsible clinician. The vast majority of approved clinicians will be psychiatrists, at least initially. Under his amendment, it would probably be necessary to go outside the team, or even the hospital, to find an approved clinician who belonged to a different profession from the responsible clinician. That may not be the intention of his amendment, but it is certainly a result of it.

Amendment No. 73, tabled by my hon. Friend the Member for Hendon, is unnecessary because the tribunal is an independent judicial body that can seek evidence from whomever it chooses. Amendments Nos. 70 and 73 assume that only a doctor or a clinical psychologist can provide objective medical expertise, but I assure my hon. Friend that the statutory competence requirements will ensure that all responsible clinicians can provide objective medical expertise. Again, amendment No. 70 would allow a doctor or clinical psychologist who might not even know the patient to override the decision of the responsible clinician. We do not think that that is a desirable approach. It could lead to inappropriate discharge, which I am sure is not what my hon. Friend would want, and that would put the patient, their family or even the general public at risk.

I hope that my hon. Friend will withdraw his amendment, and I hope that the Opposition will withdraw theirs, but I also hope that my hon. Friend and the Opposition will continue to work with us, and that we will be able to convince them on the subject of competences, which will ensure very high standards, in terms of the responsibilities that we want to give to the responsible clinician.

I listened to what my right hon. Friend said, and in particular to her undertaking to give us rather more detail on competences. If that detail includes how those competences will be assessed, I do not propose—

It being three and a half hours after commencement of proceedings on the programme motion, Mr. Deputy Speaker, put forthwith the Question already proposed from the Chair, pursuant to Order [this day].

Amendment negatived.

Mr. Deputy Speaker then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.

Clause 12

Amendments to Part 4 of 1983 Act

Amendments made: No. 6, in page 8, line 33, before ‘person’, insert

‘responsible clinician (if there is one) or the’.

No. 7, in page 8, line 35, leave out from ‘(3),’ to end of line 37 and insert

‘for the words from “, and of those persons” to the end substitute “but, of those persons—

(a) one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner; and

(b) neither shall be the responsible clinician (if there is one) or the person in charge of the treatment in question.”’.

No. 8, in page 8, line 44, before ‘approved’, insert ‘responsible clinician or the’.

No. 9, in page 9, line 1, leave out from ‘(4),’ to end of line 3 and insert

‘for the words from “, and of those persons” to the end substitute “but, of those persons—

(a) one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner; and

(b) neither shall be the responsible clinician or the approved clinician in charge of the treatment in question.”’.—[Ms Rosie Winterton.]

Clause 27

Electro-convulsive therapy, etc.

Amendments made: No. 13, in page 17, line 32, after ‘being’, insert

‘the responsible clinician (if there is one) or’.

No. 15, in page 18, line 4, leave out from ‘treatment’ to end of line 7 and insert ‘but, of those persons—

(a) one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner; and

(b) neither shall be the responsible clinician (if there is one) or the approved clinician in charge of the treatment in question.’.—[Ms Rosie Winterton.]

Clause 32

Authority to treat

Amendments made: No. 35, in page 27, line 19, leave out ‘approved clinician’ and insert ‘responsible clinician or the person’.

No. 38, in page 28, line 7, leave out ‘approved clinician in charge of the treatment’ and insert

‘person in charge of the treatment and an approved clinician’.

No. 40, in page 29, line 24, leave out ‘approved clinician in charge of the treatment’ and insert

‘person in charge of the treatment and an approved clinician’.

No. 44, in page 30, line 21, after ‘clinician’, insert

‘or the person in charge of the treatment in question’.

No. 47, in page 30, line 34, leave out ‘approved clinician’ and insert ‘person’.

No. 48, in page 30, line 38, leave out ‘approved clinician’ and insert ‘person’.—[Ms Rosie Winterton.]

Clause 34

References

Amendment made: No. 4, in page 33, line 44, leave out ‘16’ and insert ‘18’.—[Mrs. Moon.]

New Clause 13

Authority to treat community patients

‘(1) The 1983 Act is amended as follows.

(2) In section 58(3), after first “patient”, insert “who is liable to be detained under this Act”.

(3) After section 58 of the 1983 Act, insert—

“58A Consent to treatment of community patients

(1) Subject to section 62A below, a community patient who has not been recalled to hospital shall not be given any form of treatment to which this section applies unless—

(a) he has consented to that treatment and either the approved clinician in charge of that treatment or a registered medical practitioner appointed for the purposes of this Part of this Act has certified in writing that the patient is capable of understanding its nature, purpose and likely effect and has consented to it; or

(b) a registered medical practitioner appointed as aforesaid (not being the approved clinician in charge of the treatment in question) has certified in writing that—

(i) the patient is not capable of understanding the nature, purpose or likely effects of that treatment; and

(ii) he has either no reason to believe that the patient objects to being given the treatment, or he does have reason to believe that patient so objects, but it is not necessary to use force against the patient in order to give the treatment; and

(iii) he is satisfied that the treatment does not conflict with a valid and applicable advance decision, or a decision made by a donee or deputy or the Court of Protection; and

(iv) it is appropriate for the treatment to be given.

(2) Where a patient who has been liable to detention under this Act has been administered medication for mental disorder to which this section applies for less than three months prior to becoming a community patient, the period mentioned in section 58(1)(b) above shall be read to extend for no longer than one month beginning with the day on which the community treatment order is made.

(3) The Secretary of State may by order vary the length of the period mentioned in subsection (2).

(4) Certification under subsection (1)(b) above may take place whilst a patient remains liable to be detained, but will not come into force until the responsible clinician discharges the patient from detention in hospital under the terms of section 17A(1) above.

(5) Before giving a certificate under section 58(3A)(b) above the registered medical practitioner shall consult two other persons, who have been professionally concerned with the patient’s treatment, but of those persons—

(a) at least one shall be a person who is not a registered medical practitioner; and

(b) neither shall be the patient’s responsible clinician or the approved clinician in charge of the treatment in question.

(6) In section 61(1), leave out “or “58(3)(b)” ” and insert “58(3)(b), or 58A(1)(b)”.

(7) In section 61(1)(a) after “20(3)”, insert “20A(4)”.

(8) In section 61(3) for “responsible medical officer” substitute “approved clinician in charge of the treatment in questions”.

(9) In section 61(3), leave out “or “58(3)(b)” ” and insert “58(3)(b), or 58A(1)(b)” ”.

(4) After section 62(2) insert—

“(2A) Section 62A below shall not preclude the continuation of any treatment or of treatment under any plan pending compliance with section 58 above where a community patient is recalled to hospital or a community treatment order is revoked and

(a) the patient is capable of understanding the nature, purpose and likely effect of that treatment and has consented to it; or

(b) the patient is not capable of understanding its nature, purpose and likely effect of that treatment, but it is not necessary to restrain the patient in order to give the treatment.”.

(5) After section 62 (Urgent Treatment) insert—

“62A Treatment on recall of community patient or revocation or order

(1) This section applies where—

(a) a community patient is recalled to hospital under section 17E above; or

(b) a patient is liable to be detained under this Act following the revocation of a community treatment order under section 17F above in respect of him.

(2) Subject to section 62 above, a patient to whom this section applies shall not be given any form of treatment to which section 58 applies without its certification under section 58(3)(e) following that recall or revocation.”.

(6) In section 64 (supplementary provisions for Part IV), after subsection (2) insert—

“(3) In this Part of this Act, references to ‘not capable of understanding the nature, purpose and likely effects of treatment’ are to be read in accordance with the test established at section 3 of the Mental Capacity Act 2005 (c. 9).

(4) References to a donee are to a donee of a lasting power of attorney (within the meaning a section 9 of the Mental Capacity Act 2005) created by a the patient, where the donee is acting within the scope of his authority and in accordance with that Act.

(5) References to a deputy are to a deputy appointed for the patient by the Court of Protection under section 16 of the Mental Capacity Act 2005, where the deputy is acting within the scope of this authority and in accordance with that Act.

(6) Reference to the responsible clinician shall be construed as a reference to the responsible clinician within the meaning of Part 2 of this Act.

(7) For the purpose of this section, a person restrains the patient if he—

(a) uses, or threatens to use, force to require the doing of an act which the patient resists, or

(b) restricts the patients liberty of movement, whether or not the patient resists.

(8) References to a hospital include a registered establishment.”.

(7) In section 119 (practitioners approved for Part 4 and section 118)—

(a) in subsection (2)(a) for “in a registered establishment” substitute “hospital or registered establishment or any community patient in a hospital or establishment of any description or (if access is granted) other place”,

(b) in subsection (2)(b), leave out “in that home” and insert “there”,

(c) after subsection (2) insert—

“(3) In this section ‘establishment of any description’ shall be construed in accordance with section 4(8) of the Care Standards Act 2000.”.’.—[Angela Browning.]

Brought up, and read the First time.

With this it will be convenient to discuss the following:

New clause 14—Authority to treat community patients (Mental Capacity Act)—

‘(1) The Mental Capacity Act 2005 (c. 9), is amended as follows.

(2) In section 28 (Mental Health Act matters) after subsection (1) insert “(1A) Section 5 does not apply to an act to which section 58A of the Mental Health Act 2007 (c) applies.”.’.

Amendment No. 89, in clause 29, page 19, line 24, at end insert—

‘(c) the following persons have been consulted about the making of the order under section 17A and the conditions to which the patient is subject specified under 17B—

(i) the patient;

(ii) the nearest relative of the patient;

(iii) any carer who the responsible clinician believes will play a substantial part in the care of the patient after he leaves hospital; and

(iv) any person with parental responsibility; and

the responsible clinician has taken into account any views expressed by the person concerned.

(d) in this section “parental responsibility” has the same meaning as in the Children Act 1989 (c. 41).’.

Amendment No. 101, in page 19, line 24, at end insert—

‘(c) after subsection (3) insert—

“(4) Subsections (1)(b), (c) and (d) above shall not apply if the treatment is electro-convulsive therapy.”.’.

Amendment No. 96, in page 19, line 27, leave out paragraphs (b) to (d) and insert—

‘(b) if the patient is not under Part III of the Act, (a patient concerned in criminal proceedings or under sentence), the patient’s ability to make decisions about the provision of medical treatment is significantly impaired because of his mental disorder;

(c) it is necessary for—

(i) the protection of others from serious harm, or

(ii) the protection of the patient from suicide or serious harm to himself that he should receive treatment for his mental disorder;

(d) subject to his being liable to be recalled to hospital for medical treatment such treatment can be provided without his continuing to be detained in a hospital;

(e) the patient has on at least one occasion within five years previous to the present admission under section 3 refused to accept medical treatment for mental disorder;

(i) when appropriate medical treatment has been refused there has been a significant relapse in his mental or physical condition justifying compulsory admission to hospital; (whether or not there has been such an admission); and

(ii) medical treatment was then provided to him which alleviated or prevented a worsening of his condition, its symptoms or other manifestations of his condition.

(f) it is necessary for the protection of others from serious harm, or the protection of the patient from suicide or serious harm to himself, that he should be liable to be recalled to hospital for medical treatment; and”.’.

Amendment No. 84, in page 19, line 37, at end insert—

‘( ) The following persons have been consulted about the making of a community treatment order:

(i) the patient;

(ii) any person with parental responsibility;

(iii) any person who the responsible clinician believes will play a substantial part in the care of the patient after he leaves hospital but will not be professionally concerned with the after-care services to be provided to him; and

(iv) (where practicable) the person (if any) appearing to be the nearest relative of the patient.

and the responsible clinician has taken into account any views expressed by the persons consulted.’.

Amendment No. 85, in page 20, line 9, at end insert—

‘“parental responsibility” has the same meaning as in the Children Act 1989.’.

Government amendments Nos. 22 and 23.

Amendment No. 103, in page 20, line 33, at end insert—

‘(8) A community patient or his nearest relative may make an application to the Mental Health Review Tribunal to vary or suspend any or all of the conditions imposed under subsection (3)(a), (aa), (c) and (d) above within the relevant period or if substantial variations have been made by the responsible clinician under subsection (4) above.

(9) In subsection 8 above “the relevant period” means—

(i) six months beginning with the day on which the community treatment order is made; and

(ii) the period or periods for which the community treatment period is extended by virtue of the report.

(10) Where application is made to a Mental Health Review Tribunal by or in respect of a community patient under subsection (8) above the tribunal—

(i) may recommend that the responsible clinician consider whether to vary or suspend any or all of the conditions imposed under subsections 3(a), (aa), (c) and (d) above; and

(ii) may further consider the patient’s case if the responsible clinician does not make all or some of the changes recommended.

(11) Nothing in this section restricts the power to make applications to tribunals under section 66’.

Government amendment No. 24.

Amendment No. 87, in page 23, line 14, at end insert

‘for a maximum of three years in total.’.

Amendment No. 100, in page 24, line 15, leave out clause 30.

Amendment No. 92, in page 26, line 10, leave out clause 32.

Amendment No. 97, in clause 32, page 29, line 2, leave out ‘or 64G’.

Amendment No. 99, in page 29, line 19, clause 32, leave out from ‘treatment’ to end of line 22.

Amendment No. 74, in page 29, line 25, at end insert—

‘(6) The fifth condition is that giving the treatment does not conflict with a refusal made on the patient’s behalf by a person with parental responsibility in relation to that patient.’.

Amendment No. 86, in page 29, line 25, clause 32, at end insert—

‘(6) The fifth condition is that a person with parental responsibility for the patient consents to the provision of such treatment.

(7) In this section “parental responsibility” has the same meaning as in the Children Act 1989 (c. 41).’.

Amendment No. 98, in page 29, line 28, leave out ‘or 64E(6)(b)’.

Amendment No. 75, in page 31, line 16, at end insert—

‘(2A) References to a patient who lacks competence are to a patient under the age of 16 years who lacks the maturity and understanding to be able to understand and retain, or to weigh in the balance, information relevant to the treatment decision, or to a patient under the age of 16 years who lacks the ability to communicate a decision by any means.’.

Amendment No. 76, in page 31, line 17, leave out ‘accordingly’ and insert

‘in accordance with subsection (2).’.

Amendment No. 77, in page 31, line 17, at end insert—

‘(3A) References to a patient who has competence are to be read in accordance with subsection (2A).’.

Amendment No. 78, in page 31, line 30, at end insert—

‘(9) References to a person with parental responsibility are to a person with parental responsibility within the meaning of sections 2 to 4A of the Children Act 1989.’.

Amendment No. 79, in schedule 3, page 63, line 27, at end insert—

‘(2A) After subsection (2) of section 72 insert—

“(2A) The tribunal may remove or vary any condition as to behaviour imposed on a community patient.”’.

Amendment No. 90, in page 63, line 27, at end insert—

‘(d) Where application is made to the tribunal by or in respect of a community patient and the tribunal does not direct that the patient be discharged, the tribunal—

(i) may recommend that the responsible clinician consider whether to vary or suspend any or all of the conditions imposed under subsections (3)(a), (aa), (c) and (d) above; and

(ii) may further consider the patient’s case if the responsible clinician does not make all or some of the changes recommended.’.

I should particularly like to speak to new clause 13, but I shall also discuss new clause 14 and amendments Nos. 96, 92 and 98, which basically address the question of consent to treatment, particularly on the part of community patients. New clause 13 would provide simpler but safer provision for community patients who are not recalled to hospital, particularly when it comes to providing for a second opinion authorising doctor to examine a community patient in the same set of circumstances as a patient who is detained. In other words, we would like parity, because there are clear parallels between the two sets of patients. New clause 14 seeks a second opinion in respect of those who may be covered by the Mental Capacity Act 2005, but who none the less require treatment. The effect of the amendments is to require a SOAD to examine a community patient. The question is one of considering what happens to patients who are detained in a hospital, and of trying to implement legislation that will give parity to those outside hospital—and, in the context of this group of amendments, to those who are on community treatment orders.

At the moment, under section 58 of the Mental Health Act 1983, a detained in-patient who has already been on medication for three months—we have had some discussion about whether the period should be three months—faces one of two situations. If the patient has capacity to consent to the medication, and does consent, as confirmed by the responsible clinician, the responsible clinician specifies the medication on statutory form 2. If patients lack capacity to consent to medication or if they retain capacity but refuse it while they are in-patients, the responsible clinician must require a SOAD. The SOAD reads the patient’s medical records, examines them, interviews a nurse and another professional who is neither a doctor nor nurse but is involved with the patient’s care, discusses the case with the responsible clinician, then authorises what medication may be given, including details about whether or not it may be given by injection or only by mouth, assuming that an injectable form of medication is made. Details are given on the statutory certificate issued by the SOAD, so there is careful clinical assessment by someone with a specific medical background.

The SOAD assesses the patient’s mental state, decides if they retain capacity, listens to their objections, if any, to any of the medication, takes note of the patient’s history and response to medication, including adverse effects, notes the patient’s physical health—something that we have discussed a great deal in our debates on the legislation—and explores, particularly with the other professionals, whether there are other non-medication interventions that are more appropriate or whether there is a reasonable alternative. All patients on a community treatment order, after the relevant time of three or four months, see a SOAD, who undertakes the same assessments, examinations and interviews as those for in-patients, but because the patient agrees to the treatment, it is self-evident that the SOAD cannot explore the reason why the patient is refusing and whether that is reasonable. The SOAD will issue a certificate authorising both the medication that can be given only with the patient’s capacitous consent and medication that can be given should the patient lose capacity or refuse the original medication in future. We raised that problem in Committee. The Minister rejected our proposal, but there was quite of a lot of discussion of the need to write the certificate and what might follow under a certain set of circumstances several weeks or even months down the track.

The SOAD must issue the certificate, despite having no knowledge, nor being able to assess why, for example, the patient has suddenly become incapacitous or, while retaining capacity, has decided to refuse medication that they previously accepted. One must assume that patients on a community treatment order, as opposed to those who remain, or are detained as, in-patients, at the point at which the CTO is discussed, will agree to the treatment and suggested programme of intervention, which would be conditional on their having a CTO. All too often, however, things go wrong, so when something significant changes it is important to have a professional judgment by a clinician that is based on the facts, and that is what is at the heart of our proposals.

The new clause gives CTO patients exactly the same rights and safeguards as patients detained in hospital. Patients who are capacitous and consenting would have their treatment authorised by the responsible clinician. Patients who lack capacity, or who refuse treatment, would have the safeguard of the requirement for a SOAD authorisation based on an examination and assessments at the time the decision needed to be made, not based on a piece of certification ordered previously, which could be many months out of date. Safeguards for necessary and emergency treatments are included by amending section 62 of the Mental Health Act 1983 to ensure that patients do not suffer as a result of having to wait for a SOAD assessment. The Minister should consider that seriously. In Committee, we did not have enough time to go into the disparity between the appropriate treatment for in-patients compared with the treatment for people on a CTO. The CTO is proposed as an alternative for patients who hitherto would have been considered for in-patient treatment, so it is right that there should be parity in the way in which their conditions are clinically addressed, particularly after a significant change of circumstances or after a given period after the CTO is made, and there is a need for reassessment by a clinician. I therefore hope that the Minister will look favourably at the proposal, as she often does when such cases are put to her, perhaps with a little more detail and time than we had in Committee. She has generously tabled amendments on Report—not, I accept, across the board, and I would have preferred many more to be tabled—on issues where she believes that fairness and parity should prevail for patients, as they should be treated equitably. That is what is at the heart of our proposals in this group of amendments.

I have tabled amendment No. 74, and amendments Nos. 75 to 78, which relate to child patients in the community. I have also tabled amendment No. 79, which deals with appeal rights. The amendments seek to give effect to paragraphs 1.18 to 1.25 in the recommendations of the 15th report by the Joint Committee on Human Rights. Clause 32 governs the treatment of CTO patients in the community, without recalling the person to hospital. The basic principle is that a patient with capacity, or competence in the case of a child under 16, may be given treatment in the form of medicine for mental disorder only if they consent and if there is a certificate authorising the treatment from a SOAD. If the patient is capable but refuses treatment, that treatment may only be given without consent by recalling the person to hospital.

The JCHR received evidence from the Children’s Commissioner for England and from the Royal College of Psychiatrists expressing concern about the provisions of clause 32 and their potential impact on child community patients. The principal broad criticisms were that the provisions provide insufficient safeguards in relation to treatment without consent, that they are complex, cumbersome and confusing, and that there is insufficient guidance in the draft code on how they are intended to work. More specifically, a child patient may be given medicine for mental disorder without consent in the community if they lack “competence”. The same applies to an adult patient if they lack “capacity”. The Bill specifically provides that decisions about capacity are to be made in accordance with the test in the Mental Capacity Act 2005, but there is no guidance as to how the competence of a child community patient is to be determined.

Adult patients have greater protection in relation to non-emergency treatment than children, as the treatment of an adult must not conflict with an advance decision which the person giving the treatment is satisfied is valid and applicable. Equally, for adults, but not for children, the treatment may not be given if it conflicts with a decision of a donee, of a deputy, or of the Court of Protection. The Children’s Commissioner and the Royal College of Psychiatrists argue that that should be addressed by giving those with parental responsibility the right to be consulted over the treatment of a child who lacks competence. The European Court of Human Rights, in the case of Glass v. the United Kingdom, recognised the rights of the mother of an incapacitated child patient as his treatment proxy when he lacked competence. The JCHR therefore recommends that provision should be made for the involvement of those with parental rights in decision making about the community treatment of child patients who lack competence. It recommends that individuals with parental rights should have the same rights as donees with lasting powers of attorney or deputies to refuse non-emergency treatment on behalf of an incompetent child patient.

The children’s commissioner and the Royal College of Psychiatrists have expressed deep concern, too, about the power forcibly to treat children and young people in the community when they actively resist treatment. They insist that guidance on the circumstances in which emergency treatment and the use of force are authorised should be clarified, and they say that further guidance is essential. We share those concerns. Treatment given without consent engages article 8 of the European convention on human rights, especially if there is an objection, and in order for such interferences to be in accordance with law, a person’s position should be more clearly ascertainable than is currently the case, given the lack of specific guidance on competence.

Again, my right hon. Friend the Minister helpfully wrote to the Committee about the matter, but I am a little concerned about her approach. The position that the Government seem to be adopting, as set out in paragraph 26 of her letter, is that the effect of allowing a parent to refuse treatment would be to veto community treatment for that child, which may not be in the child’s best interests, but she goes on to say that without the co-operation of the parent, supervised community treatment will not work. The Government seem to want to have their cake and eat it, saying that the parent should not have rights in these circumstances, yet expecting them to co-operate.

Without parental co-operation, it is unlikely that a treatment order in the community would be made in the first place. There is some inconsistency in the Government’s position on the matter. When she replies to the debate, perhaps my right hon. Friend will give us more information about why she thinks parents should not be involved in the decision making about community treatment for their children.

Amendment No. 79 relates to paragraphs 52 to 56 of our fourth report. A patient subject to a community treatment order can appeal to a mental health review tribunal against the order as a whole, but not against specific conditions of the order. We think that that risks interference with articles 5, 8 and 13 of the European convention. The Government’s response was that the need to obtain the agreement of an authorised medical health professional as to the making of the CTO and as to the nature of the conditions to be imposed provides protection against arbitrariness. We do not think that that offers much of a safeguard. Will my right hon. Friend be more specific?

The Mental Health Alliance supports the amendment because of the need for better safeguards against unreasonable conditions. It states that despite the Government’s amendment, CTOs give clinicians wide powers to impose conditions on patients’ behaviour and lifestyle—for example, that the patient should live in a certain institution, should be subject to curfew and should not engage in specified conduct.

The MHA says, and I agree, that it is important that any conditions are reasonable and that the patient has the power to challenge any requirements that are unreasonable. It makes the valid point that the responsible clinician and the approved mental health professional may not have met the patient before their crisis, and may not have in-depth knowledge about the patient’s home life or the needs of their carers. That could lead to assumptions about the patient and unreasonable expectations of their carers as to supervision of the patient, transportation for treatment, police conditions and even housing for the patient.

The Mental Health Alliance gives a series of examples of conditions that could be unreasonable. A person could be required to live in a certain place where they might experience abuse or stigmatisation from neighbours. A person under a curfew might find that too restrictive if they find a job requiring them to work after specified curfew time. Although the supervising clinician may be sympathetic, the right to challenge such restrictions would hinge upon the good will of the clinician. That goes to the heart of the European convention. I hope my right hon. Friend will read our report on the matter in detail. It is not good enough to be able to challenge the order as a whole. It should be possible to challenge the conditions if they are specifically unreasonable. I urge her to consider the human rights implications of not providing such a right of appeal.

I shall speak briefly to amendment No. 89, in my name and that of the hon. Member for Birmingham, Selly Oak (Lynne Jones). It is similar to amendment No. 84, except in its positioning. It seeks to address what I still believe is a gap in the Bill—a gap in the details of consultation with patient, family and carers before a community treatment order is made.

I have read the Official Report of the Public Bill Committee and I know that attempts were made in Committee to plug the gap, but that was felt to be unnecessary. I agree with some of the Minister’s comments and question others. She said at column 328:

“I believe firmly that, without proper consultation, supervised community treatment will not work”.––[Official Report, Mental Health Public Bill Committee, 10 May 2007; c. 328-29.]

She also agreed that consultation with nearest relatives and carers is important. I agree with her about that, but she went on to say that that should not be prescriptive, but part of routine good practice integral to the operation of the Act.

Again, I agree with the Minister, but that would be in an ideal world. I fear that we are not living in such a world. She and the House are no doubt aware of the recent Healthcare Commission in-patient survey carried out by the Picker Institute. Several questions were asked about communication between staff, patients and the families. It was an extremely large survey—140,000 patients in acute hospitals, not mental health settings—and there was a 59 per cent. response rate, which is incredibly high.

Question 36 put to that large number of in-patients was:

“Were you involved as much as you wanted to be in decisions about your care and treatment?”

On average across England for acute hospitals, 11 per cent. said that they were not involved. Question 38 was:

“If your family or someone else close to you wanted to talk to a doctor did they have enough opportunity to do so?”

The average across the country, 16 per cent., said no, they did not have sufficient opportunity. That was brought to my attention in my local paper because one of my local hospitals was one of the worst, with 25 per cent. saying that they were not given that opportunity.

Those were acute hospitals, where good communication is surely paramount. Poor communication, as many of us hon. Members know, is one of the commonest causes of complaints to us. Good communication is vital, especially when it involves curtailment of liberty or freedom of choice among mental health patients. I would like to have seen provisions like those in the amendment written into the Bill. Consultation cannot be left to routine good practice.

An attempt is made to address the gap in schedule 3 on page 65, but that gives a duty only to managers and it is a duty to inform, not to consult or discuss. Will the Minister deal with the matter in her remarks? The duty of clinicians—doctors and nurses—is to inform and explain things to their patients. Without that being written into the Bill, a large gap is left.

I shall speak broadly in favour of the Government position and against the amendments tabled by the hon. Member for Tiverton and Honiton (Angela Browning) and her allies, largely because I have been going out and talking to people in Hackney—practitioners, users and residents who live alongside mental health patients in the community who are not always receiving the treatment that they need. I mentioned that on Second Reading and subsequently, but it has not been voiced enough in the debate. Some of those patients will be bounced back into hospital because their needs are severe. Some do not necessarily need to be in hospital, but they need an element of compulsion to deliver their treatment.

I am not blindly following the Minister’s lead on the matter. I have come to my own conclusion that treatment on the basis of need should be what drives our treatment of people in need of mental health services. That principle pervades the national health service in other areas. The difficulty with mental health is that not everyone can identify their needs, and even if they can, they are sometimes unable, for various reasons, to adhere to treatment voluntarily.

I have spoken to users about this on a couple of occasions. I heard mixed views from them, but they did not rule out compulsory community treatment orders completely. Some said that they would rather have one as an alternative to hospital treatment because it would allow them to continue their family life and their work. Moreover, crucially, it is less stigmatising than removal to hospital, whereby someone is suddenly taken away from their home environment and family, and perhaps away from their workplace if they are able to hold down a job, for a period of time. That identifies them as a mental health patient, whereas in other circumstances they could say that they were in hospital for an operation, without having to go into specifics.

There was a common and clear view from the mental health service users to whom I spoke, thanks to Hackney Mind and its user group, that compulsion was entirely acceptable if the behaviour of somebody with a mental health problem led to police involvement. That was a universal view, admittedly not from a scientifically representative group of people, but from a group of mental health service users to whom I spoke in preparation for the Committee stage of the Bill. Interestingly—I hope that the Minister has heard this from users too—they were more concerned about consistency, quality and communications in relation to community care in general. The compulsion element was obviously part of our debate, but it was mainly about the quality of community services. If we are to have CTOs, we should also have better community services alongside them, so that someone does not have to have a CTO in order to get the services that they need, but can pick up services in the community as well.

Does the hon. Lady agree that if people are in the community under CTOs, there should be some parity with the level of service given to in-patients in hospitals? At a recent meeting in my constituency, when I asked 19 immediate carers of mental health patients whether they had ever seen the care plan for the person they looked after, only two of them had ever seen it, let alone been consulted about it.

I agree that everybody should be able to see their care plan and have some input into it. Perhaps there are some gaps in services. Certainly the crisis team that I spoke to in Hackney, which includes medical professionals and social workers, does a very good job in intervening at the stage of pre-admission to hospital. I applaud the work done by them, by my local mental health trust and by Mind locally in giving users a voice, but that process is sometimes underdeveloped because there is not a great deal of funding for it. However, much as I would love to have endless discussions about types of treatment and services—issues that are vital to my constituents—this measure is about the narrow area of compulsion and treatment. That must be properly resourced and organised if it is to deliver what is required.

One of the consultants in my area highlighted the part of the Mental Health Act 1983 that deals with requiring treatment “in hospital” for a mental health condition. As he rightly pointed out, adaptations through case history over the years since then mean that a patient does not need to be in hospital day and night. If one replaced the words “in hospital” with, say, “requires treatment”, one would in effect allow for CTOs under current case law—and professionals have told me that in many cases they are already, in effect, in operation, in Hackney and elsewhere.

Under section 3 of the 1983 Act, extended leave after six months in hospital allows for treatment that could mean that someone goes back into hospital if they do not adhere to it. Under section 2, detention for 28 days is allowed, as well as special orders for people who have committed crimes and are released because it was an episodic crime. Section 41 deals with court restriction orders, whereby the person has to report to a psychiatrist every three months. That is far more restrictive than a CTO—although it does deal with far more severe cases. It can outline where someone lives, who they see and when to take medicine. I would be concerned if some of those matters were covered by CTOs. The Home Office enforces those restriction orders, and usually people placed under them have been in Broadmoor before the order was applied.

Having spoken to a number of professionals, and from what I have heard in the House and in Committee, I would guess that the Royal College of Psychiatrists is split about 50:50 on this. It is perhaps not surprising that its younger members and city-based psychiatrists tend to be more in favour of CTOs. Unfortunately, in constituencies such as mine we have a far higher incidence of mental health problems than we should, but we need to ensure that we are dealing with the situation in the most appropriate way. The same local psychiatrist whom I quoted earlier said:

“The idea that this upsets the relationship between patient and psychiatrist is more theoretical than happening in real life.”

He deals with people on restriction orders and all the other types of leave of absence that I mentioned, and believes that instead of admission, a patient’s relationship with their practitioner can be beneficial. The Royal College of Nursing, among others, is in favour of CTOs as long as they are administered properly.

An important issue about staff was raised in an earlier debate. It is important that in using CTOs staff are not asked to do something in someone’s home that would put them at risk. We have to get the balance right. It is sometimes more appropriate for somebody to be readmitted to hospital, but it is often better for them to be in the community. However, it is not fair on people in the community who are living with somebody who is not taking their treatment to have to put up with such difficulties when they know, perhaps better than the patient themselves, that something needs to be done that may not be being picked up by the crisis teams.

Another local consultant described sectioning as an act of kindness, and said that it was bizarre to restrict it to hospital. I have come to that conclusion myself. I hope that the hon. Member for Wyre Forest (Dr. Taylor) is reassured by the amendment to which Members agreed earlier, which gives patients going through compulsory sectioning the right to an advocate to argue their case. I hope that some of the points that he raised will be addressed by that, although I have a lot of sympathy with the views that he expressed.

I am in favour of this because of the work that I have done, which shows me that we are only regularising what currently happens anyway. In some cases, we will provide normalcy for patients, beyond mental health issues, so that they can carry on with their normal lives. By happily agreeing to the advocacy amendment—I am delighted that the Government introduced that—we can put in safeguards to ensure that patients in any sort of compulsory treatment, be it in hospital or in the community, have somebody to help them to argue their case for them. That is vital, and makes this a much better measure.

The Bill does not solve all the issues that I, like my constituents—be they users, professionals or residents—think important, but it goes some way towards tackling them.

The hon. Lady has mentioned the problem of patients who lack insight and do not go for voluntary treatment. Not all those people will be subject to CTOs under any regime. Does she recognise that that remains a big outstanding problem?

I certainly do. Without going into details, I am representing individuals in a couple of cases, one involving a victim’s family and the other involving the perpetrator, where there was not that insight, and the individuals concerned would not have recognised that they needed treatment. In such situations the “revolving door” bounce back into hospital may still be necessary.

The Bill would not solve everything. I have moved to being in favour of something that I questioned when I first learned about it, because of the evidence that I have heard directly from people, which has shown me that the measure is being used already, but through different routes. If the Bill is passed tomorrow, it will regularise the current situation and give psychiatrists another method of supporting people on the basis of their need. Through the safeguards on advocacy, among other things, we will ensure that patients get many benefits.

Earlier, the hon. Member for Romsey (Sandra Gidley) raised black and minority ethnic mental health issues, which I have also raised in the Chamber and in Committee. The huge inequalities in my constituency are one reason for my getting involved in mental health issues. The Bill is not the place to solve those problems, and I look forward to working with the hon. Lady, and Members of all parties, on tackling those gross inequalities further.

There is a serious problem of inequality. The number of black and identified minorities that make up the population of mental health institutions is disproportionate by a long way. Does my hon. Friend not believe that the Bill could tackle that a little more?

I have already said that one of the main reasons for my interest in this matter is the inequalities in Hackney. The Bill is narrow and primarily tackles compulsory treatment. It is not the right measure to deal with inequality. The Government have a programme about black and minority mental health issues, which is making some progress. At least we now record and recognise the important problems that exist.

Several people have asked whether compulsory community treatment orders would exacerbate inequalities that are already evident. However, I believe that the inequalities exist and are problematic, and that community treatment orders on their own will not increase that inequality. They may reflect the inequality that currently exists and we must accept that reality. We need to tackle the inequality at its root and ensure that it is not reflected in either detention in hospital or compulsory treatment in the community.

I agree with much of what my hon. Friend says, but one factor affecting the disproportionate number of black and ethnic minority people who are detained is reluctance to come forward early and access services. I take the point that we must tackle discrimination, but one problem is the culture within a society that does not trust the system. The Bill is relevant to that. We have heard many scare stories about the contents of the Bill, so we must tell the truth about that, but it is also important to have regard to the impact of the Bill on the stigmatising effect on people with mental health problems.

I agree that there have been many scare stories about the Bill, which have not helped the general debate in the wider community—or, indeed, in parts of the House. Conversation with several different groups in my constituency, including Derman, which represents Turkish and Kurdish groups, and the Chinese Mental Health Association, shows that there are many complex reasons for people not presenting with mental health problems. Sometimes it is to do with the culture of the community, and I admit that it is also sometimes to do with the way in which the system deals with people.

However, the Bill, with its narrow focus, will not solve those problems, whatever we do to it. If it were amended to the point of dealing with the way in which we provide services, it would be a different animal. It would be about provision of services, whereas it is about the legal rights of detention and compulsion. It appears that there is some consensus in the House about examining more deeply and radically the way in which we ensure that our mental health services provide treatment on the basis of need, and by ethnically blind means so that gross inequalities no longer exist. Black men in Hackney are three times more likely to suffer from mental health problems than anywhere else in the country—I forget my exact facts, but the instance is higher than average.

I look forward to working with hon. Members of all parties to try to tackle the matter, perhaps outside the Bill, but in the next mental health measure—my right hon. Friend the Minister looks weary at the prospect—in which we may consider direct provision of services and tackling inequality. The debate has at least helped air those matters to a slightly wider audience than those of us who live among people with such difficulties.

It is a pleasure to follow the hon. Member for Hackney, South and Shoreditch (Meg Hillier). We are considering a huge cluster of amendments, and it is impossible to speak about them all—and I should not be encouraged to do that anyway.

Amendment No. 101 is an attempt to remove ECT from compulsory treatment, for which I have given sufficient good reason. I want especially to concentrate on amendment No. 96. Like many hon. Members, I am not against CTOs in principle. I know that they exist in many countries, including Scotland, and that evidence for efficacy is inconclusive. I also accept that they are difficult to assess because clients and jurisdictions differ worldwide.

As an alternative to sectioning, CTOs have some attractions. However, as an extension to coercive medicine, they pose some genuine dangers. Throughout the process, the Government have been unable to guarantee that the range of coercive treatment would not be increased. The object of critics is to ensure that the threshold of coercive medicine is not lowered unduly. Amendment No. 96 would do that.

Amendment No. 92 is the nuclear option, for when all else fails. Amendment No. 96 would introduce a set of eminently reasonable criteria, including impaired judgment, a record of refusal, and evidence of the medical efficacy of the treatment offered. The individual would have to be sectionable, and at risk to himself or the public. There would have to be evidence that treatment was available and the individual would, in theory, have to be recallable to hospital if he defaulted on his course of treatment.

At least four of the conditions are the same as the Government’s proposal. The only genuinely crucial distinction between the Government’s proposal and amendment No. 96 is that the amendment would require evidence that the voluntary route was unlikely to work, but that the compulsory route would work. That is a reasonable expectation. It could be argued that the threshold is higher than the current threshold in Scotland. The Scottish legislation has been much admired throughout our discussions, including by many critics of the Bill. Perhaps the amendment would provide for a higher threshold than exists throughout the world, wherever CTOs are used. However, it is not much higher than that that the Government have already set, and it is necessary to allay fears.

I share some of the views of the hon. Member for Hackney, South and Shoreditch, who emphasised the fact that many of the fears that have been expressed about the Bill are grossly unreasonable, unfair and uncharitable towards the legislators. I am genuinely surprised that many of those who, like me, are sceptical about the prospect of CTOs reducing suicide, believe totally and without much evidence that their mere existence will drive people away from seeking help. Worldwide evidence leaves one agnostic on both scores.

It we are to use CTOs for their avowed purpose, not simply as an extension of coercive medicine, the Government must explain why the threshold in amendment No. 96 is too high. Mere stubbornness will not do. The Government have a chore to convince hon. Members on this side of the Chamber that our proposal is unreasonable, given that it supplements theirs with reasonable expectations about the efficacy of treatment and the likelihood that the patient will not be dealt with effectively on a voluntary basis.

Early in his contribution, the hon. Gentleman referred to amendment No. 101 on ECT. I am not sure why he brushed over it so quickly. It is an excellent amendment, and perhaps he could go into more detail about his reasons for brushing over it. Has he received reassurances, or did he not speak about if for long because of time constraints?

I have spoken about the topic for a considerable time already; I am fearful of acquiring a reputation in the subject. The point that I wish and intend to make is that where compulsory treatment is in place, it should not entail anything as invasive or uncertain as electroconvulsive therapy. I believe that that is a general common-sense point that we can all accept.

Let me return in conclusion to what the hon. Member for Hackney, South and Shoreditch said. There is a real danger of decrying this legislation because it does not achieve everything. However, I would like to repeat, as an addendum to what I have said previously, that there are many people out there who are rattling around in society with very little insight into their condition, but they are not sufficiently dangerous or troublesome ever to meet the criteria to become eligible for compulsory treatment. My point is that we simply have no solution for those people at the moment. At one stage, they would gradually have drifted towards the institutionalised route, but now they exist in various forms and are by and large untreated.

Does the hon. Gentleman accept that the prospect of compulsory treatment might actually be a deterrent to some people, and indeed might deter their friends, family or neighbours from advising them to seek the help that they clearly need and deserve? Might we not end up with more people in an even more vulnerable situation as a result?

I share the view of the hon. Member for Hackney, South and Shoreditch that there is no evidence for that. There is a great deal of worldwide evidence of using community treatment orders, which we can look at to establish whether it does drive people away from ordinary means and mechanisms to secure treatment. I do not believe that the evidence is there, so although the point exists as an allegation, it remains largely just a fear at the moment.

I raised my concerns about community treatment orders in Committee and, with the indulgence of the House, I will do so again on Report. I hope that I have the Minister’s indulgence and that she will not mind if I raise my concerns with as good grace as I can muster—[Interruption.] That sounds pretty good.

There are huge resource issues with CTOs. From the piles of briefing that we have read over the past couple of months, it seems that there are currently about 32,000 people a year receiving some form of in-patient hospital care. With the introduction of CTOs, it is estimated that the numbers involved could be in the region of 25,000 a year. The figure is disputed, but a number of organisations that submitted evidence as part of the consultation process and then as part of Public Bill Committee scrutiny believe that the threshold for CTOs in this country will be set at a far lower level than that in many of the other 70 jurisdictions. It is anticipated that about 50 people per 100,000—a significant number—will be eligible to be placed under CTOs in this country. I am well aware that the Minister disagrees with the figure and will probably come back with a counter-bid, but if we could work on the basis of 25,000 people for the next few minutes, I would be grateful.

First, we have to ask what will be the mechanism for delivery of CTOs. How will they be applied within the many diverse communities?

My hon. Friend will recall that when CTOs were first talked about in the Chamber, they were referred to by the rather unfortunate description of medical ASBOs.

Psychiatric ASBOs—and I am grateful to my hon. Friend, who is as astute as ever on the Front Bench and listening to my every word. If they are not to turn out as psychiatric ASBOs and if they are to stand a chance of working effectively, what about the resource implications, which my hon. Friend the Member for Broxbourne (Mr. Walker) has just mentioned? How will they manifest themselves and what will be the impact on other community-based psychiatric services?

My hon. Friend makes an excellent point. We are perhaps in danger of commanding mental health armies that do not exist—or do not yet exist. We need to be aware that huge resource issues are involved—we are talking about 25,000 people in England, which is about 500 for each county, and many will require additional support to what is already being provided by the existing excellent mental health service professionals. We thus need to explore the mechanism for delivery at greater length. Perhaps the noble Lords in the other place will do so when the Bill returns to them.

The hon. Member for Finsbury Park—[Interruption.] The hon. Member for Finsbury, North—[Interruption.] I mean the hon. Member for Islington, North (Jeremy Corbyn), I am sorry. I wanted to leave Finsbury Park in, because it is one of my local train stations on the way through to the House. I apologise as no slight was intended. The hon. Gentleman made an important point about the concerns of black and ethnic minorities. I have a briefing from the Commission for Racial Equality, which is concerned that certain communities will be more prone than others to CTOs. Of course, we hope that that will not be the case, but we need to have procedures in place to ensure that the concerns of minority groups—and indeed the concerns of hon. Members—are properly reflected in the implementation of CTOs. We do not want to disfranchise huge parts of our community so that people feel that the Bill is yet another measure unfairly applied against them. That is not where we want to be.

I return to the point made by my hon. Friend the Member for Tiverton and Honiton (Angela Browning). Who will actually deliver CTOs? Will it be community mental health nurses, or will there be CTO teams working together to ensure that the orders are applied and work fairly in the community? CTOs will have significant training implications; the orders will be new to this country so we shall want to be sure that they are subject to best practice and effectively delivered. Who will be responsible for providing training? How much will it cost and how will it be given? Will it be on the job or will front-line practitioners have to be taken away from their patients to spend time learning about the new techniques? I hope that the Minister does not think I am being churlish when I raise these concerns[Interruption.] I am sure she does not; she is too generous.

I am rather perplexed by the hon. Gentleman’s argument. By and large, the people we are talking about will already be in the mental system. Unlike the Scottish system, this proposed system is more “liberal” in that people have to be detained in hospital before they can be subject to a CTO, so has it occurred to him that some patients might think that a CTO would guarantee them services they cannot receive because they have been discharged and will be forgotten until the next time they exhibit difficult symptoms?

That is a very long question and I do not think I can remember every aspect of it, but I shall try very hard.

Of course, CTOs will be applied only to people who have been in hospital, but how long will the orders last? If 32,000 people are seen in hospital over a year, how many will be subject to CTOs and for how long? Will the orders last six months, a year, two years or three years, or will they be indefinite—almost life sentences? The hon. Lady makes an important observation, but I do not think I am being hostile in arguing my concerns. I am raising legitimate questions to which mental health professionals have the right to an answer.

Many of the people who would be subject to a CTO will be known to the mental health services, but we are not talking about business as usual; CTOs will introduce a whole new regime and a whole new system for dealing with people, and they will require a whole new set of skills.

The hon. Gentleman talks about a whole new system, but in my comments I highlighted the fact that there are already cases of people who are, in effect, on community treatment orders. They are admitted to hospital under a section and when they are released they have to undertake certain treatment or they will have to go back to hospital. Given such examples, it seems to me that the hon. Gentleman’s argument falls apart.

The hon. Member for Hackney, South and Shoreditch (Meg Hillier) may have been referring to a recent meeting we attended with the Minister and some psychiatrists she had invited to the House. When I raised the existing section 25A orders under the 1983 Act, I was told that there are powers that allow people to go back to the community, but with the threat that if, for example, they come off their medication, they can be taken to a hospital—usually by the police. A psychiatrist told us, quite flippantly, that the powers were rarely implemented because the police do not want to co-operate. It is scandalous that powers on the statute book that could be used effectively are not being implemented.

My hon. Friend makes an important point. If such powers already exist, we should be asking why they have not been used more widely and why we do not consider using them more widely before introducing CTOs.

Does the hon. Gentleman know how widely the powers have been used? I was talking not merely about my own constituency but about a fairly common practice.

Actually, I do know. We covered the matter at some length in Committee and the view was that the powers had not been widely used. I think there were about 1,500 cases a year—

I do not know the exact number, but I raised it only last week with the psychiatrist whom the Minister brought before those of us who chose to attend her meeting. It was a good meeting, but I was interested to know why section 25A orders are not used more frequently—they have been on the statute book for a long time— and the psychiatrist said that it was because the police do not want to co-operate. The situation is extraordinary.

If we want section 25A orders to be used more widely, perhaps we should direct people to my hon. Friend’s constituency, where they seem to be having some success.

One concern about CTOs is how they will be implemented at local level when there are many hundreds, if not thousands, of them. How will we know if people are not complying with them? Who will be there, day in, day out, monitoring their effectiveness? Will there be a spy camera in someone’s bedroom—I am sure that there will not be—to ensure that they are taking their medication, or will people follow them to ensure that they do not go to the pub? Those are Orwellian possibilities, which I am sure will not happen, but the legitimate question is: how on earth will we realistically monitor 10,000, 15,000, 20,000 or 25,000 people on community treatment orders? If someone breaks an order, what will we do? Will we send them a warning letter, will they get a knock at the door, or will they receive a visit from one of their clinical team?