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Mental Health Bill [Lords]

Volume 462: debated on Wednesday 4 July 2007

Lords message considered.

Clause 10

The fundamental principles

Lords amendment: No. 1A.

Before speaking about the substance of the amendments, I would like to say a brief word about the Bill generally. As all hon. Members know, my right hon. Friend the Member for Doncaster, Central (Ms Winterton), who was formerly Minister of State for Health, has until now represented the Government on the Bill. I pay tribute to the magnificent way in which she secured advances, which will, over time be acknowledged as historic and in the best interests of people with mental health problems. I am sorry that she has not had the pleasure of seeing the Bill through to the end, but I am pleased to have the honour of speaking about the amendments today. I also pay tribute to Lord Hunt of Kings Heath, who did a tremendous job in piloting the Bill through the other place.

I am also pleased to assume lead responsibility for mental health in the Department and I look forward to working with all stakeholders. Whenever possible, I shall try to build a consensus that tackles the stigma that people with mental health problems and their families experience all too frequently.

There is no doubt that the Bill has been contentious from the time when work began on it in 1998, and throughout its passage. There is also no doubt that the Bill has benefited from vigorous debate. We may not always agree about the exact nature of the provisions, but the debate has enabled us all to understand the wide range of perspectives on the important issues that the Bill covers, and I believe that my right hon. Friend the Member for Doncaster, Central explained fully the reasons why the Government could not agree to some of the amendments that were tabled.

The Government have however agreed to many amendments. To name but a few, they include: requirements around age-appropriate services for under 18s; making explicit the purpose of medical treatment for mental disorder; the introduction of statutory advocacy; including on the face of the Bill a list of issues that must be addressed in a statement of principles in the codes of practice; making it explicit that the conditions for supervised community treatment must be linked to a person’s treatment or the need to protect them or others from harm; new safeguards for the use of electroconvulsive therapy, and new safeguards for those who are deprived of their liberty in their own best interests but who do not have Mental Health Act 1983 safeguards.

On Monday, the other place considered the Commons amendments to the Bill and agreed several further amendments which, in the Government’s view, represent a sensible way ahead on the outstanding issues, and I have no hesitation in commending them to the House.

First, let me deal with the proposed list of new exclusions to the definition of mental disorder that were agreed in the other place but rejected by this House. The reasons for their rejection have been fully debated, and I will not go through them again. Although we could not agree to the proposed new exclusions, the Government fully understood the concern expressed by many to ensure that mental health legislation should never be used to exercise social control, and that reassurance needed to be given to people—especially those in certain black and minority ethnic communities—who fear that the measure may be misused to their detriment, or to the detriment of their families and communities.

That is why the Government were pleased to support the amendment tabled by the noble Lady Baroness Barker, which added respect for diversity to the matters to be addressed in the statement of principles. Respect for diversity is already covered in the draft illustrative code for England, but following wide-ranging debates in both Houses, we intend to look again at the draft and seek ideas on how to improve it. The codes for both England and Wales will, of course, be subject to formal consultation. We believe that it would be helpful to have built into the amended legislation respect for diversity, which should be included, as I said, in the list of issues to be addressed in the statement of principles.

Does the Minister agree that embodying this issue in the principles, albeit within the structure proposed in the Bill, is very important? In an extreme case—though I do not anticipate one—of a frankly delinquent public authority, those matters could at least be taken to judicial review on grounds of non-compliance with the essential principle. In our view, securing compliance is extremely important.

As usual, the hon. Gentleman makes a constructive and sensible point. There are concerns among black and ethnic minority communities about the disproportionate numbers within them who for one reason or another receive mental health services, and I believe that it is important to be sensitive to such concerns. This is probably the best way to achieve the outcomes that I suspect are shared on both sides of the House.

I would like to deal now with doctor involvement in key decisions and the modernisation of professional roles. The House reversed the Lords amendments that would have allowed the responsible clinician’s decision to be overridden by a doctor who may not even be involved in the patient’s care. That would have undermined the new ways of working initiative and would have stood in the way of efforts to ensure that professional skills are recognised and focused where they are needed, to the benefit of patients and an efficient work force.

The Government have always said that the decision to renew a patient’s detention should involve the multidisciplinary team of professionals concerned with the patient’s care. The legislation already requires that, before furnishing a renewal report, a patient’s responsible clinician has to consult at least one other person on the multidisciplinary team. On Monday, the noble Baroness Murphy laid an amendment whereby the responsible clinician has to secure the agreement of a person who must be of a different profession from his own. That provision would apply to all responsible clinicians of whatever professional background.

We considered that amendment carefully and we believe that this approach provides a sensible solution. The approach is compatible with multidisciplinary assessment and has the renewal decision made by professionals who actually know the patient. It is for the responsible clinician to decide whether their patient’s detention should be renewed, but it is not unreasonable to expect that they have formal support from at least one other member of the multidisciplinary team.

Let me deal now with the Lords amendments on supervised community treatment. The introduction of SCT is one of the most important features of the Bill. It is about allowing people with serious mental health problems to be cared for in the community when appropriate by having the right systems in place to help to avoid deterioration in their condition and thereby to protect them and others from harm.

Both here and in the other place, SCT has been a source of heated and considerable debate. While we agree that there must be safeguards to ensure that people are not inappropriately put or kept on SCT, we are clear that the criteria must not be so restrictive that people who might benefit from its use are denied it. In particular, we could not accept the requirement that a patient should be ill enough to require two detentions prior to its use, because SCT might well help to prevent from relapse some patients who have been detained only once. We cannot accept a situation whereby clinicians and families have to stand by and watch a patient discharged from hospital relapse before SCT becomes an option for them. Delays in treatment inevitably worsen prognosis in the longer term.

The Government are happy, however, to accept the Lords amendments that make clear the factors that clinicians should consider when making a community treatment order. The responsible clinician, in assessing the appropriateness or otherwise of SCT, must consider the risk of deterioration and, in so doing, must reflect on the patient’s history.

It has been a long road to this stage of the Bill, and I should like to pay tribute to everyone who has made it all possible. I should also like to make it clear that we have much work ahead to ensure that we get the secondary legislation, codes of practice and implementation right. We want to work with all interested stakeholders in a genuinely authentic partnership. In spite of past disagreements, we have the same aim as those who have debated every step of the legislation with us: the timely and effective treatment of all who need that treatment. To realise that goal, we need to work together in the interests of patients, their families and carers, the professionals involved and the entire community.

Well, here we are again, and I hope that this will be the last time. I welcome the Minister to his new mental health brief. He is the last man standing in the Department of Health Front-Bench team, and he has joined one of the most challenging pieces of legislation ever to go through his Department at the very last corner. He has done well on his timing there. I should also like to pay tribute to his predecessor, the right hon. Member for Doncaster, Central (Ms Winterton), who was with the Bill almost as long as I have been with it, and to my colleague in the House of Lords, the noble Earl Howe, who has an equally longstanding association with the Bill and with the whole issue of mental health.

The fact that we are considering amendments that were agreed by all sides in the Lords shows that the Opposition were right to say on Second Reading and on Report that although a lot of progress had been made—we welcomed the amendments that the Government agreed to on youth-appropriate treatment, the treatability test and advocacy—there was a little further to go. The Lords have demonstrated that there were further concessions to be wrung out of the Government, so we were right not to give the Bill our full endorsement at that stage. We can now scrutinise these further amendments. This has been a worthwhile, if elongated, exercise over what now amounts to about eight years.

We still have doubts as to whether the amendments to which the Government have agreed go far enough. We would like to have seen the impaired decision making amendments that were placed in the Bill in the Lords retained. To quote my noble Friend, Earl Howe:

“To have acknowledged in law that there is a place for the wishes and feelings of patients who are capable of making their own choices would have been a profoundly far-sighted and beneficial change.”—[Official Report, House of Lords, 2 July 2004; Vol. 693, c. 826.]

I welcome the Minister’s opening comment that one of his missions in his new brief was to root out stigma, but we believe that the provisions on impaired decision making might have played an important part in achieving that.

Does my hon. Friend agree that it is an essential and important principle that we should not discriminate, that we should treat people fairly, and that we should not impose conditions on them unless there is a manifest need to do so? That has been the principle behind mental health legislation as our culture and knowledge have evolved over more than a century. We have made some progress in taking this forward, but perhaps not quite enough.

I completely agree with my hon. Friend. Those who want to see mental health being dealt with on a level playing field alongside any other physical health matters think that the Bill could have gone further towards achieving that. Before you rule me out of order, Madam Deputy Speaker, that brings me to the first of the amendments and the issue of exclusions—I hope that I got away with that one.

We have had a long-running debate on the exclusions that we think should be added to the Bill. The matters that particularly exercised us, and the Lords, related to religious, cultural and political beliefs. The amendment that was proposed in the upper House by Baroness Barker mentions

“respect for diversity generally including, in particular, diversity of religion, culture and sexual orientation (within the meaning of section 35 of the Equality Act 2006)”.

It is useful that that reference has now been placed in the Bill, because we do not have principles set out in the Bill, which we believe to be a weakness.

We challenge the Government over whether exclusions could be incorporated in the Bill, as they were in the 1983 Act. Indeed, exclusions stronger and more precise than those now being proposed have worked perfectly well in New South Wales, Victoria, New Zealand and, most recently, Scotland and have not, as the Minister’s predecessor warned, been the subject of legal challenges. Exclusions in the 1983 Act have been subject to only four legal challenges. We therefore believe that further tightening of exclusions would be a correct and appropriate counterbalance to the Bill’s widening of the definitions of mental illness and its absence of principles.

Concern remains most markedly about the impact on the black and minority ethnic community. The most recent submissions of the Commission for Racial Equality challenge the Government’s race equality impact assessment, describing it as

“at best flawed and at worst highly misleading. The Race Equality Impact Assessment cannot be taken as an accurate indication that the provisions of the Bill will not adversely impact on particular ethnic groups when the legislation is implemented.”

Given the apparent absence of rigorous internal consideration of the impact of the proposals prior to the introduction of race equality impact assessments, it would be useful if the Minister said how the Government are monitoring the impact of the Bill’s watered-down exclusions on the BME community. There is no need to repeat the figures: we are all aware of the disproportionate number of members of the BME community, especially black African men, who are sectioned and subject to restraint and powerful drugs in hospital. I should be grateful if the Minister gave some undertakings on that.

Is my hon. Friend concerned about the possibility of community treatment orders being applied disproportionately to certain groups in society, rather than being applied evenly?

My hon. Friend is absolutely right, and I shall deal with that in a minute. The BME community, and certain parts of it, seem to be affected disproportionately by the Bill’s provisions on compulsory treatment, so we need more research to understand that and see how it can be overcome.

We believe that the criteria for renewing a sectioning order should be no less rigorous than the Bill’s criteria on the initial issuing of an order—it is as important for a patient as the initial detention. We therefore welcome the amendments proposing that two clinicians be involved in a patient’s treatment. We are still concerned, however, about the medical expertise of the professionals issuing renewals notices. As we said in Committee and on Report, we do not want to introduce some form of hierarchy, but we do not understand why the Government have introduced inconsistencies between the original section and the renewal, and the renewal and the provisions of the Mental Capacity Act 2005. Those inconsistencies could give rise to future problems.

We have another concern about these amendments. Which of the professionals now tasked with providing the renewal order do the Government envisage will give the objective medical expertise on mental disorder that has been determined by the European Court of Human Rights? The Minister will know that we have serious qualms about how the legislation as previously framed, and even as amended by the Lords amendments, will fare under ECHR legislation.

We are also concerned about the fact that the primary professional now responsible could get his or her colleague in the multidisciplinary team simply to rubber-stamp the decision on a renewal of detention. We need to ensure that the second person reaches a separate and independent decision. I would like some further clarification, and guarantees from the Minister that that is what the Government envisage. Without that, the role of the second professional, and the assurances provided by having a second professional as part of the process, are rather worthless. There must be a proper, independent and rigorous check.

I turn to community treatment orders and the amendments tabled in the name of Lord Patel of Bradford in another place, which are supported by my colleague the noble Lord Howe and Cross Benchers and Liberal Democrats. We welcome the changes that were made on Report to CTOs. We have never been against the principle of CTOs, but because they are very powerful devices, we want them to be applied to a closely defined group of persons—real revolving-door patients—in closely defined circumstances as laid down by the pre-legislative scrutiny committee, of which I was a member.

We were therefore particularly keen on and welcomed the change to proposed new section 17 B (3)(e), which the Minister will have at the tip of his tongue. It added a very coercive measure to the exercise of CTOs:

“a condition that the patient abstain from particular conduct.”

That gave rise to CTOs being dubbed psychiatric ASBOs. The Government dropped that, which was welcome. The new condition is that CTOs must relate to what is necessary for beneficial medical treatment, but what constitutes medical treatment is still a broad definition within the Bill. It is also a shame that an end-date was not set on CTOs. Why does the Minister still not think that appropriate? We should consider the lobster-pot scenario that Professor Genevra Richardson described many years ago in her expert committee. We can easily see how people can now be subject to CTOs and other parts of sectioning. It is difficult to see how they can get out of that system, which is why we propose a three-year cap on the operation of the initial CTOs, and a right of appeal against the conditions attached to them.

If a CTO involves giving treatment that is harmful to a patient—for example, a drug that has severe side-effects on that patient, and which he would prefer not to take—in whose interests are we actually acting? I should be grateful if the Minister commented on that. In the debate in the Lords on Monday, his colleague Lord Hunt acknowledged

“concerns that supervised community treatment could be used too readily and that it could be used as a failsafe option without true justification.”—[Official Report, House of Lords, 2 July 2007; Vol. 693, c. 843.]

Lord Patel went on to say that CTOs could even become part of the normal discharge process that detains patients generally, as a kind of safety net for risk-averse mental health service staff and managers. As my hon. Friend the Member for Daventry (Mr. Boswell) said, that might apply disproportionately to members of the black and minority ethnic community. The early experience in Scotland has certainly been that a much larger number of people have been put on CTOs than was originally envisaged. Of course, that also has great resourcing implications. A lot of finances will have to go into resourcing CTOs, which will surely be to the disbenefit of other parts of the mental health service. I would like some guarantees that, under the amendments, the Minister does not think that CTOs will gobble up a disproportionate part of the resources, causing problems elsewhere.

The Government originally introduced CTOs to deal with revolving-door patients, and we would like further clarification as to how the amendments apply to such patients, because there is some woolly terminology. The amendment refers to having to take account not only of the patient’s history of mental disorder, but of “any other relevant factors.” What does that mean? What situations will be considered? For example, if a person had been a voluntary patient, as well as being under compulsion, would that be considered? What exactly in the patient’s history of mental illness are the Government going to take into account under the amendment? We, and the Government, support the amendment, but it is not nearly as detailed and specific, or as prescriptive, as the amendments that the Lords put into the Bill, which the Government took out and we tried to restore on Report.

If the purpose of CTOs, even with the amendment, is no more than to get a patient to take his medication, we are saying that medication should be forced on a patient even if it is doing him no good and even if it may lead to harm. That brings into question the whole attitude of Ministers: that CTOs have to be with the agreement of the patient. If the patients are agreeing to treatment, why do we need compulsory treatment orders in the first place? That is a clear anomaly. I would like some assurance that the code of practice, perhaps, will be clear as to the ultimate purpose of a CTO and that compulsory medication should not be used as a substitute for adequate mental health care in the community. We need some assurance that the code of practice will work as it relates to the amendments.

Finally, we welcome the progress that has been made with the amendments, but we still do not think that they have gone far enough. This is a great missed opportunity in many respects to have a Bill that could serious challenge the problem of stigma. In the not too distant future, when we are in government and in a position to look at mental health legislation, we will want to review some of the provisions of this Bill. I hope that the Minister will give an undertaking to review some of these radical and innovative—but unproven and untried—measures, particularly regarding CTOs and the impact they are having on the BME community and some of our most vulnerable patients. If he does not review it, we certainly will want to and we shall monitor this legislation closely. We want to be sure that, after eight years in gestation, the Bill works for the benefit of vulnerable people.

In considering the passage of this Bill—Lords, Commons, Commons, Lords—I am reminded of the nice cop, nasty cop routine. Their lordships savaged the Bill menacingly, and this House sought collectively to cajole the Government to mend their ways. In part, I think they did. Genuinely, it has not been a bad double act. The Bill has been improved, although not to universal satisfaction. I have referred to the remarks made by Baroness Murphy and Lord Alderdice in the Lords, which were full of dark foreboding, largely about the use to which psychiatrists might put the Bill. I have suggested that the Bill could be called the Mental Health (Fear of Psychiatrists) Bill.

With that in mind, we would do well to accept the Lords amendments, particularly relating to the powers of the responsible clinicians, the exceptions and the additional conditions on CTOs. With regard to the exceptions, I pointed out on Report that it was restrictive, as the Government have said, but innocuous, judging by international comparisons and the way the law pans out elsewhere. However, it also sends out powerful signals about cultural, religious and social sensitivity. Some of the same effect could also be achieved, if people wished, by a statement of principles.

Baroness Barker’s excellent amendment produces a kind of cross between those two solutions. It was Lord Hunt who called the attempt declaratory, and declaration has a place in legislation. It is a good amendment and sends important signals.

Lord Patel’s amendments are more genuinely substantive and equally welcome. The residual question is whether enough has been done to allay the fears of Lord Patel, Lord Alderdice and Baroness Murphy, which were expressed by Lord Patel when he asked how we can be assured that this legislation will not massively increase the legal coercion of psychiatric patients. When the Government have been pressed on the question of whether more people will be under coercion as a result of this legislation, they have been shy of saying that no more people will be affected.

Our question now is whether we should do more, without going so far as to frustrate the objectives of the Act. I do not know whether we can, or whether, if we are tempted to do that, we could deliver it politically. The legislation has been improved by forensic criticism on one side, and by a listening Minister. I pay tribute to the right hon. Member for Doncaster, Central (Ms Winterton), who as a Health Minister played a conspicuous part in seeing this legislation through.

It would have been good if the other place, notwithstanding their disappointments and amid their lordly back-slapping, had recognised that the House of Commons has played some part in making progress on this legislation. For example, Baroness Barker said:

“Some of the debates in another place were disappointing in that they were conducted by people who had clearly forgotten some of the many abuses in the mental health services in this country, where there are still people who were subjected in the past to wrongful application of compulsory mental health treatment. I meet some of them in the course of my work…although they are now very old”.—[Official Report, House of Lords, 2 July 2007; Vol. 693, c. 816.]

I do not think that she was talking about events since the 1983 Act or—I hope—about events consequent on its amendment here. Only time and a serious review—which we badly need—will tell. It seems to me that though the business today will be concluded, it is, as the Minister has implied, far from finished.

Like other hon. Members who have spoken, I commend the amendments to the House, although I do so without total and unqualified approval. It would be churlish to fail to acknowledge my delight that the Minister has come among us to discuss this important subject. He has been very involved in health matters, and only 24 hours ago he and I were in the same room together discussing them. He will bring a sensitive touch to the issue, by which I mean no disrespect to his colleague who carried the brunt of the consideration of the Bill in Committee.

I wish briefly to pay tribute to my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) on his huge contribution and to those professionals from the Mental Health Alliance and other organisations who briefed those of us who do not claim to be experts on this issue. We should not be cynical about legislation, because we have made some genuine progress here. The issue is whether we have made enough progress.

I come to the Bill not as an expert in mental health issues—although I have a real interest in them—but because of my general interest in some of the issues of rights it involves. Indeed, through a member of my family, this is something of a family trade, and I was also involved in the Mental Capacity Act 2005 and the development of such concepts. One tries to test them, but my judgment is that, as my hon. Friend implied, with this legislation we have squeezed the lemon as far as we can. There may be another lemon to squeeze before long, when my hon. Friend is the Minister, but—remembering the treaty of Versailles—there may be some gloves to leave on the table in the way of concerns about the human rights implications of the Bill.

Those are, first, in terms of the best interests of the individual, to use a phrase from the Mental Capacity Act, and concerns about whether that principle has always been enacted, especially when an individual does not have impaired decision making and is, in effect, being subjected to compulsory treatment against their will. I still have some major concerns about that, as does my hon. Friend the Member for East Worthing and Shoreham.

Equally, or even more importantly, the Committee expressed real concern about the differential impact on black and minority ethnic communities. That has to be tackled; whatever the legislation says, it is not acceptable in practice. The Minister’s commitment to a diversity amendment is helpful in that regard, and deserves to be singled out.

We are now at the small-print stage of our scrutiny. That is quite proper, as I believe that legislation should be considered in detail, but we must not overlook the big picture. Legislation is part of that, but it is also about delivering services effectively. No single amendment at this stage would make a huge difference in that respect. All of us who were involved in the Committee know that mental health provision in this country remains poor. It is still a Cinderella service: I must choose my words carefully but, at least in relation to other priorities, it is inadequately resourced. We need to give it a better emphasis, which means that we must establish the right sort of legal regime.

Gradually, we have edged our way to a structure that does not challenge the rights of the individual in most cases. We have softened some of the Bill’s rough edges, and although it has taken eight years, the process has been worth while. We can let the Bill go forward, in the belief that it will be enacted and implemented in the most sensitive way possible. No longer will we be able to make assumptions about people who are mentally ill, let alone give the impression that we are consigning them to a lifelong sentence of compulsory control and stigma.

I begin by echoing the welcome extended to the Minister, who I am sure will lead us through the final breaths of the Bill as ably as the right hon. Member for Doncaster, Central (Ms Winterton), who is now Minister of State at the Department for Transport, did in its earlier stages.

The Minister said that it had been a long journey to get this far with the Bill, and it certainly has been. I only joined when I became a Member of Parliament two years ago, and the many constituency cases that I encountered sparked my interest in mental health matters. However, if the road has been long, our route has not been direct and the vehicle that we have used has not been the most efficient. We did not ride in the Government’s Toyota Prius, with all its economy and value; instead, we have taken an old banger to move from left to right. Yet we are where we are, and we have our Bill nevertheless.

Does my hon. Friend accept that at certain points along the road, we appeared to have broken down altogether?

That is true, but we managed to crank up the old car so that we could move forward again as we approached the end of the Bill’s passage through the House.

I welcome the Government’s latest concessions, and I was especially pleased with earlier amendments on electro-convulsive therapy and age-appropriate treatment. It was with some sadness that I must relate that this is the only one of all the debates that we have had for which I did not receive a briefing from the Mental Health Alliance, which has otherwise given fantastic help throughout.

I am grateful for the amendments that have been tabled—and especially the one dealing with respect for diversity—although they are weaker than I would have preferred. In addition, it makes an awful lot of sense that the amendment dealing with the renewal of detentions should specify two clinicians. I welcome those changes, and the strengthening of the power to recall patients in the community, although I have some caveats as to how that can be done.

However, I retain some deep concerns about CTOs, and especially about the ones that, year in and year out, will not work. I would have preferred a three-year limit on such orders. I would also have preferred the Lords to include a Government amendment to provide an acceptable balance on impaired decision making.

Unfortunately, I still feel that this is a bad Bill overall, but we have managed to make some progress in the end. I say that it is a bad Bill because people in my constituency—health service professionals—are still opposed to it for solid reasons. I believe that they are still confused by it in many ways, because of the peculiar processes involved in the old banger’s long journey, which has finally come to “The end”.

With the leave of the House, Madam Deputy Speaker, I shall respond to some of the points made during the debate. There have been some constructive contributions.

It is difficult to respond to the hon. Member for East Worthing and Shoreham (Tim Loughton), but I pay tribute to him for the way in which, I am told, he led for Her Majesty’s Opposition during the deliberations on the Bill. I thank him for his congratulations on my new responsibilities, which I hold alongside my responsibilities for adult social care.

The hon. Gentleman asked about monitoring the changes with specific regard to members of black and minority ethnic communities. I assure him that we shall be monitoring the measures, including their impact on people from those communities, extremely closely. However, the existing mental health, criminal justice and education systems raise massive issues for our society in terms of relative access to services, relative deprivation and underperformance, some of which have to do with ethnicity. The changes that we propose will do nothing to make that situation worse, and will indeed make it better, so it is slightly disingenuous to suggest that there are no diversity issues or problems for people from ethnic minority communities in the existing mental health system. We have to address such issues irrespective of the changes we are making in the Bill.

The hon. Gentleman asked about the respective professionals who would be able to make decisions. Amendment No. 4A requires the second signatory to the renewal report to have been

“professionally concerned with the patient’s medical treatment”,

so that person will actually know about the patient’s condition—a point I made earlier. To give some further detail, the second signatory has to state

“in writing that he agrees that the conditions”

for renewal are met. They will not be able to do that unless they have examined the patient recently and are confident that they know the patient’s current condition. We regard that as good professional practice. We shall make it clear in the code of practice that such a person should be suitably competent professionally to make the decision.

Can the Minister give some more detail about the meaning of “suitably competent” and provide some examples of the sort of practitioner he thinks will now be empowered to give that additional view about renewals?

As I said, the code of practice will make that clear, but “suitably competent” means—[Interruption.] This is important. The Conservatives talk constantly about devolution to the front line, trusting the professionals and professional responsibility, yet they want a definitive list of people who would be regarded by clinicians and senior managers at local level as suitable professionals. It is disingenuous to say that we should not prescribe such things from Westminster and Whitehall, while requiring an exhaustive list in the Bill.

This has nothing to do with localism and trusting professionals; it is about compliance with the European convention on human rights. Is the Minister saying that those professionals will not have to comply with the ECHR and that everything will be left to local direction? If so, he has grossly misread the legislation.

No, I am not saying that at all. We have checked, and it has been confirmed that the situation is entirely compatible and consistent with the legislative framework. We are clear that we want a different way of working in all elements of the health service. We genuinely want a multi-disciplinary approach through which professionals from different backgrounds and with different expertise can make a contribution according to their knowledge, skills and qualifications. What I am talking about is a classic example of that.

Although I do not disagree at all with the excellent sentiment that the Minister has expressed, does he not appreciate that some Conservative Members, some of those in the other place and others in professional circles can see a distinction between wishing to assist a patient—particularly when there is a voluntary capacity—and seeking to coerce a patient in the interests of the wider community? In the second case, there has to be a proper process that is carefully defined to meet human rights criteria.

With all due respect to the hon. Gentleman, I should say that that balance has had to be struck in the mental health system every day of every week since time immemorial. We believe that the legislation has strengthened the approach to those difficult judgments that professionals have to make. Clearly, they have to make them within a robust legislative framework and according to best professional practice. We believe that the legislation strengthens that framework in that environment.

The issue is not new; professionals make those agonising decisions daily, and 99 per cent. of the time they do an amazing job of getting those judgments right. In the tragic cases, of which we are all aware, the judgments are not always as we would want. However, in the vast majority of situations, specialist mental health professionals with expertise on such issues have to weigh up the considerations as an integral part of their professional practice. The legislation does not change that, but strengthens it. One of the challenges is to ensure that every professional working in mental health services should be properly trained about the implications of the Bill and how they will be expected to work.

Does my hon. Friend agree that professionals will be subject to disciplinary procedures should they fall below the standards expected of them? That, of course, is a safeguard for the patient.

I agree entirely. There are a number of issues about protecting and securing best practice: good leadership, good management, continual professional development and the legislative and professional regulatory frameworks. All those things contribute towards ensuring maximum professionalism at the front line of our mental health services. In time, this legislation will be seen to have added significantly to those professionals’ ability to do the job as they would want.

The hon. Member for East Worthing and Shoreham also raised the question of revolving-door patients. As we have said in the past, attempting to define the clinical group in view, as the Lords amendments have attempted to do, is crude and arbitrary. It prevents supervised community treatment from being available to protect vulnerable patients, as well as other people in the community. SCT must be available to patients undergoing their first period of compulsory treatment, who may be at great risk if they are discharged into the community without the protection of SCT. The incredibly important point is that the first relapse in the community can often be the fatal one. It would be irresponsible to ignore what is clear from the evidence on making such decisions.

The hon. Gentleman also said that the criteria for SCT were too broad and would lead to there being too many people in the system. Actually, the criteria set a high threshold for placing a patient under a community treatment order or SCT: first, a patient must be detained for treatment in hospital; and secondly, the amendment now agreed in the other place makes clear the factors that a clinician must consider when placing a patient under SCT. They include the risk of a patient getting worse in the community. In assessing that risk, the clinician must consider the patient’s history. Those are reasonably clear safeguards in terms of thresholds.

The hon. Member for Southport (Dr. Pugh) usually makes measured contributions, and did so again in his brief speech today. [Interruption.] We are not that inclusive. However, it is bizarre to suggest that Ministers should announce today the number of people who will end up on treatment orders, or that they should guess or guesstimate such a figure. This is all about best professional judgments in terms of the interests of people with mental health needs, their families, and the wider community. It would be ludicrous for the Government or the House to prescribe the number of people who will end up accessing the new form of treatment.

I did not suggest that the Minister should give us an exact number; I asked him whether there would be an increase or a decline, and whether it would be substantial. He can tell us that.

The only thing I can say about increases and decreases is that, the way things are going at the moment, there is no question but that the hon. Gentleman’s party will see a significant decrease in its representation in the House. I suspect that questions such as that simply reinforce the point. If I cannot be expected to define a specific figure, how can I be expected to say whether it will go up or down? I am afraid that is beyond me, and would be beyond any Member of the House.

Perhaps I can help the Minister. I alluded earlier to the experience in Scotland—albeit at an early stage—which is that the number of patients released under CTOs has been considerably higher than was anticipated. Does he envisage that that may be replicated in this country when the legislation comes in? If so, the word “higher” might be what he is looking for.

I want the professionals to use the legislation that this place is passing to best effect, in the interests of patients, their families and the community. Assuming that that is the basis on which decisions are made, the outcome of those best judgments and professional decisions will be in the best interests of our country. That is straightforward and pretty simple. The hon. Gentleman may want to make petty political points to position himself, but that does not do justice to a debate as serious as this.

The hon. Gentleman asked about limits on CTOs, and referred specifically to the concept of a three-year limit. There is a package of safeguards already in place to ensure that a patient does not stay on a CTO for any longer than is necessary. Once again, we do not agree that an arbitrary time limit is appropriate, because it simply has no clinical basis. An arbitrary time limit could mean patients no longer benefiting from a CTO when they need that treatment.

The safeguards will be included in the code of practice that we will publish in due course. They will be about assessment, ongoing review, and the right to appeal. The code of practice will clearly spell out people’s entitlements and rights in terms of having the treatment order reviewed regularly. That will be about clinical judgment and the patient’s health.

Does my hon. Friend agree that the Opposition are being extraordinary? They agree in principle to community treatment orders, because, like us, they believe that they are a good thing, enabling patients to have treatment in the community that they would otherwise have to be admitted to hospital to receive. The issue is whether community treatment orders are a good thing, and the Opposition agree that they are; otherwise they would continue to vote against them in the House. Predicting whether there will be an increase or a decrease is not the issue. The issue is whether they are going to be properly applied.

I agree entirely with my hon. Friend. Once we have put the legislative framework in place, accompanied by suitable regulation and protection, surely it is for professionals on the front line to make clinical judgments according to their professional expertise. The Conservative party argues, on every matter of public service and public policy, that we should devolve to professionals, allow maximum autonomy at the front line and not command and control from the centre. However, during this debate, Conservative Members have wanted Ministers to prescribe on the Floor of the House what professionals ought to do, which is entirely inappropriate.

Many people have made a tremendous contribution to ensuring that the Bill will finally make its way on to the statute book, so I do not want the debate to conclude without paying tribute not only to the Ministers who have been referred to, the Opposition spokesmen and the Back Benchers who have made a contribution, such as the hon. Members for Rochford and Southend, East (James Duddridge) and for Daventry (Mr. Boswell), but to the officials in the Department of Health who have navigated us through a difficult and tortuous process incredibly professionally. The Bill will be seen as a historic piece of legislation that not only reflects the best interests of people with mental health needs and their families, but ensures that the community can have confidence in a modern mental health system.

Lords amendment agreed to.

Lords amendments Nos. 4A, 32A, 32B, 41A, 41B, 41C and 41D agreed to.



That the following repeals of Standing Orders, new Standing Orders, amendments to Standing Orders, and related provisions be made—

(A) Standing Order No. 18 (Consideration of draft regulatory reform orders) shall be repealed and the following Standing Order made—

Consideration of draft legislative reform orders

18.—(1) If the Regulatory Reform Committee has recommended under paragraphs (4) or (6) of Standing Order No. 141 (Regulatory Reform Committee) that a draft Order subject to the affirmative or super-affirmative procedure, laid before the House under Part 1 of the Legislative and Regulatory Reform Act 2006, should be approved, and a motion is made by a Minister of the Crown to that effect, the question thereon shall—

(a) if the committee’s recommendation was agreed without a division, be put forthwith; and

(b) if the committee’s recommendation was agreed after a division, be put not later than one and a half hours after the commencement of proceedings on the motion.

(2) If the committee has recommended under paragraphs (4) or (6) of Standing Order No. 141 that a draft Order subject to the affirmative or super-affirmative procedure be not approved, no motion to approve the draft Order shall be made unless the House has previously resolved to disagree with the committee’s report; the questions necessary to dispose of proceedings on the motion for such a resolution shall be put not later than three hours after their commencement; and the question on any motion thereafter made by a Minister of the Crown that the draft Order be approved shall be put forthwith.

(3) If the committee has recommended under paragraph (4) of Standing Order No. 141 that a draft Order subject to the negative resolution procedure should not be made (and that the recommendation is not intended to operate section 16(4) of the Act), that recommendation shall be deemed to constitute notice of a motion under sub-paragraph (4)(a) of Standing Order No. 118 (Delegated Legislation Committees).

(4) Motions under paragraphs (1) or (2) of this order may be proceeded with, though opposed, until any hour.

(B) Standing Order No. 141 (Regulatory Reform Committee) shall be repealed and the following Standing Order made—

Regulatory Reform Committee

141.—(1) There shall be a select committee, called the Regulatory Reform Committee, to examine and report on—

(i) every draft Order laid before the House under sections 14 or 18 of the Legislative and Regulatory Reform Act 2006 (‘the Act’);

(ii) any Subordinate Provisions Order or draft of such an Order made or proposed to be made under sections 1 and 4 of the Regulatory Reform Act 2001 (except those not made by a Minister of the Crown);

(iii) any matter arising from its consideration of such Orders or draft Orders; and

(iv) matters relating to regulatory reform.

(2) In the case of every draft Order referred to in paragraph (1)(i) above the committee shall consider the Minister’s recommendation under section 15(1) of the Act as to the procedure which should apply to it and shall report to the House any recommendation under the Act that a different procedure should apply.

(3) In its consideration of draft Orders under Part 1 of the Act the committee shall include in each case, in addition to such other matters as it deems appropriate, whether provision in the draft Order—

(a) appears to make an inappropriate use of delegated legislation;

(b) serves the purpose of removing or reducing a burden, or the overall burdens, resulting directly or indirectly for any person from any legislation (in respect of a draft Order under section 1 of the Act);

(c) serves the purpose of securing that regulatory functions are exercised so as to comply with the regulatory principles, as set out in section 2(3) of the Act (in respect of a draft Order under section 2 of the Act);

(d) secures a policy objective which could not be satisfactorily secured by non-legislative means;

(e) has an effect which is proportionate to the policy objective;

(f) strikes a fair balance between the public interest and the interests of any person adversely affected by it;

(g) does not remove any necessary protection;

(h) does not prevent any person from continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise;

(i) is not of constitutional significance;

(j) makes the law more accessible or more easily understood (in the case of provisions restating enactments);

(k) has been the subject of, and takes appropriate account of, adequate consultation;

(l) gives rise to an issue under such criteria for consideration of statutory instruments laid down in paragraph (1) of Standing Order No. 151 (Statutory Instruments (Joint Committee)) as are relevant;

(m) appears to be incompatible with any obligation resulting from membership of the European Union:

Provided that in the case of draft Orders under section 20 of the Act, those criteria which are not relevant to provisions made pursuant to section 2(2) of the European Communities Act 1972 need not be taken into consideration in relation to those provisions.

(4) In relation to every draft Order laid under section 14 of the Act subject to the negative or affirmative procedure under sections 16 or 17 of the Act, the committee shall report its recommendation whether the draft Order should be made (in the case of the negative procedure) or approved (in the case of the affirmative procedure), indicating in the case of the latter whether the recommendation was agreed without a division.

(5) In relation to every draft Order laid under section 14 of the Act subject to the super-affirmative procedure under section 18 of the Act, the committee shall report its recommendation as to whether—

(a) the draft Order should be proceeded with unamended under section 18(3) of the Act; or

(b) a revised draft Order should be laid under section 18(7) of the Act; or

(c) no statement under section 18(3) or revised draft Order under section 18(7) should be laid.

(6) In relation to every draft Order or revised draft Order subject to the super-affirmative procedure being proceeded with under section 18(3) or 18(7) of the Act, the committee shall report its recommendation whether the draft Order or revised draft Order should be approved, indicating in the case of draft Orders which it recommends should be approved whether its recommendation was agreed without a division; and in respect of such draft Orders or revised draft Orders the committee shall consider in each case all such matters set out in paragraph (3) of this Order as are relevant and the extent to which the Minister concerned has had regard to any resolution or report of the committee or to any other representations made during the period for parliamentary consideration.

(7) It shall be an instruction to the committee considering draft Orders being proceeded with under section 18(3) or 18(7) that it report not more than fifteen sitting days (in the case of an order under section 18(3)) or twenty-five sitting days (in the case of an order under section 18(7)) after the relevant statement is laid.

(8) In relation to every draft Order or revised draft Order, the committee shall report any recommendation under section 16(4) of the Act that the draft Order be not made, or under sections 17(3), 18(5) or 18(9) of the Act that no further proceedings be taken in relation to the draft Order.

(9) In its consideration of any Subordinate Provisions Order under paragraph (1)(ii) of this order, the committee shall in each case consider whether the special attention of the House should be drawn to it on any of the grounds laid down in paragraph (1) of Standing Order No. 151 (Statutory Instruments (Joint Committee)); and if the committee is of the opinion that any such Order or draft Order should be annulled, or, as the case may be, should not be approved, they shall report that opinion to the House.

(10) The committee shall consist of fourteen members; and, unless the House otherwise orders, each Member nominated to the committee shall continue to be a member of it for the remainder of the Parliament.

(11) The committee shall have power—

(a) to send for persons, papers and records, to sit notwithstanding any adjournment of the House, to adjourn from place to place, and to report from time to time;

(b) to appoint specialist advisers either to supply information which is not readily available or to elucidate matters of complexity within the committee’s order of reference; and

(c) to appoint a sub-committee, of which the quorum shall be two, which shall have power to send for persons, papers and records, to sit notwithstanding any adjournment of the House, and to adjourn from place to place.

(12) The committee and the sub-committee shall have the assistance of the Counsel to the Speaker.

(13) The committee and the sub-committee shall have power to invite Members of the House who are not members of the committee to attend meetings at which witnesses are being examined in relation to matters within paragraphs (1) (i) to (iii) and such Members may, at the discretion of the chairman, ask questions of those witnesses; but no Member not being a member of the committee shall otherwise take

part in the proceedings of the committee or sub-committee, or be counted in the quorum.

(14) It shall be an instruction to the committee that before reporting on a draft Order it shall afford to any government department concerned an opportunity of furnishing orally or in writing to it or to the sub-committee appointed by it such explanations as the department thinks fit, except to the extent that the committee considers that it is not reasonably practicable to do so without risking the opportunity for effective exercise of a function conferred on it under section 15, 16, 17 or 18 of the Act.

(C) Standing Orders No. 98 (Scottish Grand Committee (delegated legislation)), No. 115 (Northern Ireland Grand Committee (delegated legislation)), and No. 118 (Delegated Legislation Committees) shall be amended by leaving out the words ‘regulatory reform order’ and inserting the words ‘legislative reform order’; and Standing Order No. 151 (Statutory Instruments (Joint Committee)) shall be amended by leaving out the words from ‘under’ in line 21 to ‘and’ in line 24 and inserting the words ‘Part 1 of the Legislative and Regulatory Reform Act 2006, or any subordinate provisions order made or proposed to be made under the Regulatory Reform Act 2001,’.

(D) Any draft regulatory reform orders laid under the Regulatory Reform Act 2001 which are currently before the House shall be considered by the Regulatory Reform Committee appointed under this Order and by the House as if they were draft orders, subject to the super-affirmative procedure, laid under the Legislative and Regulatory Reform Act 2006.

(E) Notwithstanding the provisions of Standing Order No. 121 (Nomination of select committees), those Members of this House who were members of the Regulatory Reform Committee before the passing of this Order shall be the members of the Regulatory Reform Committee appointed under paragraph (B) above; and for the purposes of Standing Order No. 122A (Term limits for chairmen of select committees), the Regulatory Reform Committee established under paragraph (B) shall be the same committee as that established before the passing of this Order.—[Tony Cunningham.]