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Mental Health Bill [HL]

Volume 687: debated on Tuesday 28 November 2006

My Lords, I beg to move that this Bill be now read a second time. There has always been, and will continue to be, much debate about the purpose and balance of mental health law. This area is controversial, and understandably so, as it involves issues of personal liberty and intrusion into people’s lives. However, the Bill is a relatively small part of the Government’s agenda for mental health. Perhaps more important is our progress on improving the range and quality of mental health services available across the country. Nevertheless, we need to ensure that our legal powers are as clear and up to date as possible.

The Bill primarily amends the Mental Health Act 1983 to help protect patients and the public from harm and to modernise the legislation to reflect current mental health service provision. It introduces new safeguards into the Mental Capacity Act 2005 for people who lack capacity and are deprived of their liberty in their own best interests. We also need to bring our legislation fully into line with the European Convention on Human Rights.

Although one in six of us suffers from a common mental health problem at any point in our lives, most of us will never need treatment under statutory powers. For instance, while over 900,000 people are seen by specialist mental health services at any one time, only about 15,000 of those are detained under the Mental Health Act. We do not need new legislation to go on improving services—we will continue to do so under general NHS legislation.

Let me be clear about the improvements we have put in place on mental health services, because this provides the context within which this legislation will be implemented. We are spending £1.25 billion more on mental health services than in 1999. That is an increase of more than a quarter in real terms. Mental health, at £7.2 billion, represents the largest single element of programmed budget spend in the NHS. There are now record numbers of staff working in mental health. Since we came to office, there are 9,400 more psychiatric nurses, 1,240 more psychiatric consultants and 3,080 more clinical psychologists.

We are improving access to mental health services through new outreach teams and crisis resolution teams to provide care in patients' homes, through new early intervention services for young people and by providing more secure places for people with personality disorders. During 2005-06, crisis resolution teams provided 84,000 episodes of home treatment for people who would otherwise have been admitted to hospital. By the end of March 2006, about 19,000 people were receiving care from assertive outreach teams.

I recognise that a small minority of people at risk of harming themselves or others are in circumstances that justify treating them under compulsion. In those circumstances, a measure of compulsion may be the most compassionate thing to do. I accept that a high threshold needs to be reached before a clinical decision is made to detain and treat a patient under compulsion. The thresholds created by such criteria are fundamental to the balance set up by the Act. They establish when it is right that a clinician step in because the risk of harm to a patient or others outweighs a patient's individual rights.

In any such legislative framework, we need to ensure that patients' rights are safeguarded and that clinicians are clear about the process that must be followed under those circumstances. It is essential that detention and treatment under compulsion is only ever for a proper clinical purpose. The current legislation provides a framework of the kind that I described, but the Bill amends that framework with a number of key changes. The legislation needs modernising, because society and mental health services have changed since the previous Mental Health Act came into force more than 20 years ago.

I freely acknowledge that we had intended to replace current legislation with the previous Mental Health Bill published in September 2004. However, many stakeholders cited the positive aspects of the Mental Health Act 1983 in their evidence to the Joint Committee in the pre-legislative process. We have listened carefully to those views and to those expressed by mental health organisations, patients, clinicians and the general public. That has resulted in a shorter, more focused Bill covering essential measures. We now have a Bill that will help to ensure that people who need to be treated for the prevention of harm get the treatment that they need when they need it. Secondly, the Bill will bring the legislative framework up to date with current developments in mental health services, and strengthen patient safeguards.

Supervised community treatment is probably the key change in the Bill and is an area of some controversy. It is important not just from a patient and public safety angle but because clinical practice itself has changed. At present, most patients treated under the Mental Health Act are detained in hospital. That reflects the fact that, in 1983, most acute mental health services were provided in hospital. However the world has moved on and we now have a wide range of community-based mental health services, some of which I mentioned earlier. We also know that some form of compulsory community treatment is established in jurisdictions in New Zealand, Australia, Canada, Israel, Sweden, Belgium, Portugal and Scotland.

It is clear that there is now scope for some patients to be treated under compulsory powers but to live in the community, not in hospital. For suitable patients, supervised community treatment meets the need for a framework for their treatment and safe management in the community, instead of detention in hospital. That modern approach strikes a balance between individual autonomy and protection of the patient and the public.

I hope that we will not hear arguments in this House that we should go back to the future and reserve compulsion for detention in hospital. We have made it clear that, to be eligible for supervised community treatment, patients must have had an initial period of detention and treatment in hospital. This means that their medical condition and treatment needs will be well established before they go into the community. Criteria are set out in the Bill on whether a patient is suitable for supervised community treatment. It will be for clinicians, working with approved mental health professionals, to determine against those criteria whether a patient should be put on a community treatment order. There is no question of supervised community treatment being imposed on people who have not been detained in hospital first.

We know that some patients stop taking their medication or treatment once they leave hospital, and so relapse and end up being readmitted. This detrimental cycle is often referred to as the revolving door. Patients on supervised community treatment will benefit from a structure designed to promote safe community living. This will reduce the risk of relapse and re-detention. They will be asked to comply with conditions to help prevent relapse, such as living in a certain place, attending an out-patient clinic and agreeing to take medication under the direction of their responsible clinician.

If, despite all this, a patient’s mental health does deteriorate again, there will be scope to take action to prevent crisis. Under supervised community treatment, patients can be recalled to hospital, if they need to be, for treatment. This is important because the power of recall provides the means to tackle relapse, and to avoid its potentially adverse consequences for the patient or someone else. Recall to hospital allows patients to be treated quickly and to return to the community straightaway if it is clinically safe to do so.

I recognise that there were some concerns about our proposals for supervised community treatment, but we have tried to deal with them. I assure the House that it is not about forcing people to have treatment in the community. If a patient refuses consent to treatment, it can be given only on recall to hospital. Forcible treatment against a patient’s will cannot be given in the community where the patient lacks the capacity to consent unless the treatment is immediately necessary—for example, to save the patient’s life.

Supervised community treatment is a new, modern and effective way to manage the treatment of patients with serious mental health problems. It will allow patients, so far as possible, to live normal lives in the community. This will reduce the risk of social exclusion and stigma associated with detention in hospital for long periods of time or with repeated hospital admissions.

We have published a draft code of practice that provides guidance in more detail, and we are happy to have comments on how to improve it. Supervised community treatment will be suitable for a minority of patients who have already been detained in hospital. There will be clear criteria for eligibility, safeguards for patients, and strict provisions for review and appeal, exactly as they apply to detained patients.

Let me turn briefly to measures that simplify and clarify the current legislation. At present, a patient being treated under the Act often needs to be assigned to one of four separate categories of mental disorder. We wish to replace these with a simpler single definition of mental disorder under which a patient’s needs and risks, not the label that happens to be applied to a person’s mental disorder, determine when action is taken. This simpler single definition will also make the Act easier for clinicians to use and for others to understand. This will not alter the way in which the Act deals with learning disability. Similarly, alcohol and drug dependence will remain excluded from the definition of mental disorder, as they are now, but two other exclusions in the Act will be removed. The first relates to promiscuity or other immoral conduct, which is redundant. No one could now regard such behaviour as mental disorder. By contrast, the present exclusion for sexual deviancy is simply wrong. If a person has a clinically recognised mental disorder, the fact that the disorder manifests itself, for example, as voyeurism or paedophilia should not be an obstacle to using the Act where it is justified to protect the patient or other people.

We will also introduce a new requirement that appropriate treatment must be available for patients subject to detention in hospital for treatment or on supervised community treatment. This will reinforce the fundamental principle that detention and supervised community treatment must always be for a clinical purpose. The test replaces the more selective “treatability test”, whose many drawbacks include contributing to a culture in which certain groups of patients are labelled untreatable and thereby are denied services. That may have been convenient for service providers, but it was not very useful to patients and was sometimes dangerous to the public.

The appropriate treatment test is designed to ensure that no one will be brought or kept under compulsion unless suitable treatment is available for them. It will not be enough for treatment to exist in theory, which in itself is a considerable patient safeguard. The treatment must be not only available and appropriate to the medical condition but appropriate to the circumstances. For instance, factors such as how far the services are from the patient’s home or whether those services are culturally appropriate will need to be considered. That is very much in line with the move across the NHS towards more tailored, individual patient-focused services. It is a change that links mental health very much to the mainstream of NHS reform and improvement.

Another shift across the NHS has been the modernising of medical careers, making sure that the right person is doing the right job to the benefit of patients. In line with this, we intend to broaden the range of professionals who can take on the key roles of responsible medical officer and approved social worker. The responsible medical officer role is being replaced with the role of responsible clinician. A patient’s responsible clinician will have overall responsibility for their case and make key decisions, such as whether a patient should be discharged or go on supervised community treatment. Allowing the responsible clinician role to be taken on by a broader range of appropriately skilled and trained professionals will give hospitals the flexibility to select someone whose skills best meet the patient’s treatment needs. Where a patient mainly needs treatment from a doctor, such as medication, a doctor will be the responsible clinician. But, for example, if a patient has a personality disorder and the treatment mostly involves psychological interventions, such as cognitive behavioural therapy, a psychologist may have the skills most appropriate to the role of responsible clinician for that patient.

The current approved social worker role is being replaced by the role of approved mental health professional. The functions of the role will remain largely unchanged, but the role will be opened up to a broader range of professionals, often working in the same integrated community mental health teams as approved social workers.

We are committed to improving patient safeguards and will do this by taking a power to allow the time to be reduced before a patient’s case is referred to the mental health review tribunal. Of course, a patient can always apply for a tribunal hearing and this will not change their current rights, but it will improve the safety net for those who do not apply. Currently, patients who do not apply wait for six months before their case is referred to the tribunal. We want to reduce that, but we will not use this power until hospitals and tribunals have capacity to meet the reduced time limits. This responds to evidence provided to the Joint Committee.

Two other important patient safeguards are being introduced. The first will give patients the ability to apply to the county court to displace the nearest relative if they believe they are unsuitable; for example, if the relationship with the patient is abusive. This is important as the nearest relative has various powers under the Mental Health Act such as being able to apply for or to block detention, to request a review of detention and to receive certain information about the patient. The court will be allowed to displace the nearest relative indefinitely, making this difficult time less arduous and complicated for all those involved.

We will also make some amendments to the Mental Capacity Act 2005 in response to the 2004 judgment of the European Court of Human Rights. The court found that a man had been unlawfully deprived of his liberty in Bournewood Hospital because he had not been admitted under a legal process which included safeguards against arbitrary detention, and he was not able to benefit from speedy access to a court to consider his case. The Bournewood safeguards will protect the human rights of people who are not able to decide about their care and who, for their own protection, need to be cared for in a hospital or care home in a way that deprives them of their liberty. This could apply, for example, to some people with severe learning disabilities or dementia. These safeguards will set up a legal process of independent assessment of each case for depriving the person of liberty. Each person will have a representative who is given the right to initiate a further review of their case or to apply to the Court of Protection on their behalf.

We have recognised that clinicians have confidence in the 1983 Act and are familiar with it. We have listened carefully to the wide variety of strong views expressed. We have considered all the arguments and now have a balanced and focused group of measures that improve patient safeguards, modernise terminology and produce proportionate changes in the area of supervised community treatment that will benefit patients and the wider public in the small minority of circumstances where they are appropriate. We will of course listen carefully in Committee to any improvements that can be made and, as I said earlier, we are also willing to listen to any suggestions for improving the draft code of practice. We must recognise that changes in our mental health legislation are needed. They have admittedly been a long time coming but, the longer we delay, the more our mental health legislation falls behind the advances made in services and in human rights legislation. The time for change is now. I commend the Bill to the House.

Moved, That the Bill be now read a second time.—(Lord Warner.)

My Lords, I am sure that the whole House has listened with enormous interest to the Minister’s very clear explanation of the somewhat complicated contents of this important Bill. As I listened, I found myself reflecting that occasionally, though mercifully not often, legislation is clearly needed but it is difficult to know precisely what changes to the law should be made or even what the alternatives are. This Bill is an example of that. It has a long history: seven years of careful and skilled consideration, including two previous draft Bills, two reports and much consultation. Yet there is still considerable anxiety and disagreement about whether what the Government are now proposing is right.

Unlike a number of noble Lords due to speak later in the debate, who know a great deal about the subject matter of the Bill—I have a former Secretary of State for Health sitting beside me, which is somewhat unnerving—I am a complete layman in these matters. I have not been formally involved in the previous consideration of the Bill, but I have a particular interest for three reasons. When, many years ago, I served as the chairman of a medical research ethics committee, we had within our area of responsibility a large hospital for people with severe mental health problems. Inevitably, some research proposals that came before us, such as trials of certain drugs, could be carried out only by involving patients in that hospital—patients unable themselves to give their assent to participate. The committee gave each proposal careful consideration, centring on the potential benefits for such patients of the drug, the safeguards and issues of assent. Difficult decisions had to be made, but I believe that they were not entirely dissimilar from those that have to be made on this Bill.

I have a personal interest in the Bill because of contact with mental disorder problems through cases among my own friends and family. I am sure that I share that experience with many other noble Lords. I do not believe that that contact is at all irrelevant to our discussions.

I am interested in the Scottish dimension to the Bill. It applies mainly to England and Wales, but there are cross-border arrangements in Schedule 5, under Clause 32. In addition, the Minister touched on the fact that the Scots Parliament has recently legislated on these matters and useful comparisons may be possible.

Quite a lot of the Bill is completely incomprehensible without the Explanatory Notes, due to how it is drafted in terms of amending other legislation. Having read the Explanatory Notes, I should like to make one general point on what lies at the heart of the main provisions of the Bill. I refer to rights—those of patients, children, their families and the rest of the community. The briefing I have seen—some of which I received only an hour or two ago—and the problems met by predecessor Bills centre mainly on deep anxiety about the rights of patients and of those suffering from a mental disorder, and what the Government propose for them. That is not surprising. This is, after all, a health Bill; it is about patients and of course Parliament must take those rights very seriously. It is always when the most vulnerable appear threatened that Parliament must be at its most vigilant.

We must be very careful in our considerations. Other people have rights, too, not just the most vulnerable. Parliament exists to protect the rights of all people and to balance them when they conflict. It is so easy, in our concern to protect those who cannot protect themselves, to forget the major threat those self-same people can be to others in certain circumstances, as well as to themselves. The court cases which have been discussed often in relation to the Bill illustrate this graphically and disturbingly, as did a moving article which some of your Lordships may have read in the Observer two Sundays ago. The father of a 17 year-old with schizophrenia described in simple, factual, unemotional detail how the system as it exists, operating with the best will in the world, handled the young man and his family, to the young man’s great danger and suffering, and who knows what fate.

The status quo will not do—the Minister has said that. It must be wrong in extreme cases, in the name of rights and freedom, to allow someone to fail to take his medication if that means he becomes dangerous to other people or to himself. It must be wrong, too, in the name of rights and freedom, to allow someone with a caring family to become homeless, unprotected and out of that family’s reach. It must be wrong, in the name of rights and freedom, to forget that sometimes, for some people, compulsory detention is salvation. Subsequent treatment in the community, if it can be made to work, may be able to be designed so as to be a salvation, too.

My simple point—your Lordships may think it is too naïve but I believe it is important—is that, as we work our way through these proposals, it must be possible to maintain a proper balance of consideration. This may be a health Bill about patients but it is also about families, friends, communities and public safety. The problems confronted by the Government in the Bill are difficult but they are real problems; they affect the freedoms and rights not only of the weakest but of us all. At the same time, let us remember that the system as it is cannot continue.

My Lords, the journey towards a new Mental Health Act over the past eight years or so has been a long one. I cannot help feeling that, although there have been some interesting steps along the way, the journey has taken us back where we started, with a rather disappointing Bill. It fails to take into account the concerns of most people who work in mental health services and of most people who use mental health services.

I had the privilege of serving with MPs and Peers of all parties on the Joint Committee on the draft Mental Health Bill under the chairmanship of the noble Lord, Lord Carlile. We heard evidence from a wide variety of experts before making a long series of recommendations which we believed would have substantially improved the legislation and created a legal framework for compulsory mental health treatment which would have enjoyed the support of most of those who required it. Reading the new streamlined Bill, it feels that the only point we made that the Government have accepted is that the 2004 draft Bill was too long and too difficult to follow. Indeed it was—but that does not mean that a shorter Bill is necessarily better, especially as the shorter Bill retains most of the provisions we were most concerned about and omits some of the better ones such as those relating to advocacy and improved patient representation. It may be that our report was too long and too difficult for the Government to understand too.

My role on the Joint Committee was to keep plugging away on the question of learning disability. I welcome the fact that the Bill’s single definition of mental disorder now excludes learning disability in most cases. But it retains the caveat that people whose only mental disorder is a learning disability may be subjected to compulsion where that disability,

“is associated with abnormally aggressive or seriously irresponsible conduct”.

These words are very familiar to me because they arrived in the 1983 Act after a long three-way process of negotiation on the telephone between the then Minister, the noble Lord, Lord Elton, myself, then in my capacity as secretary general of Mencap, and a copy of Roget’s Thesaurus. It was the best compromise we could then reach between the Government’s position that people with a learning disability should come under the scope of the Act, and my position that people with a learning disability are not ill and should not be treated as if they are. It appears that the Department of Health’s position, 23 years and a change of Government later, has not changed—but neither has mine.

Learning disability was not then, and is not now, a mental illness. In many cases, of course, where a person with a learning disability is aggressive or irresponsible, that can be a sign that he or she has a mental illness that would benefit from medical treatment—in which case they can be treated under compulsion if necessary anyway—but that is not always the case. It may, for example, be a sign that he or she is in pain or is otherwise distressed but has difficulty communicating this or explaining it to others, and is frustrated. Responding to a person’s pain or distress with detention and forced medication is unlikely to improve things.

I would much prefer to see a complete exclusion from the scope of the Bill of people whose only mental disorder is a learning disability. After all, if people with a learning disability lack capacity, and if treatment is in their best interests, they can in any case be treated under the Mental Capacity Act. That is an Act in which I also have an interest as I was part of the Joint Committee scrutinising it, when it was the Mental Incapacity Bill, under the chairmanship of the noble Lord, Lord Carter.

A recommendation both committees made regarding the Bills we were scrutinising was that principles should be on the face of those Bills, rather than being relegated to a code of practice. Such principles make legislation much easier for practitioners to understand, and form an important safeguard. However, while principles are now on the face of the Mental Capacity Act, the Government have so far refused to accept that they should be part of the Mental Health Bill. I hope that they will be able to change their mind on that, or, if not, that they can explain why such principles as best interests, non-discrimination, least restrictive alternative and child welfare are not compatible with the legislation as proposed.

The Mental Capacity Act is crucial to the Bill, as much of the Bill is concerned with amending that Act in respect of Bournewood patients; that is, patients who lack capacity and are deprived of their liberty. If, in redrafting the Mental Health Bill, the Government were motivated by the desire to avoid inordinate length and complexity, that concern appears to have disappeared in relation to Bournewood patients. The relevant sections of the Bill—Clauses 38 and 39, and Schedules 6, 7 and 8—amount to more than 50 pages.

The Bournewood provisions have received far less publicity than the other sections, but they were mentioned by the Minister, Rosie Winterton, on the “Today” programme on the day the Bill was published. She rightly noted that perhaps thousands of people who lack capacity may be being deprived of liberty, and that they currently do not have the same access to a mental health tribunal. Listeners might have been forgiven for assuming that the Government wanted to give them the same access to such a tribunal, but that is not the case. No, they have access instead to the Court of Protection, which lacks the expertise of the tribunal in making judgments about care plans and detention.

In fact, the Government’s proposals for Bournewood patients leave them lacking several of the safeguards enjoyed—if “enjoyed” is the word—by Mental Health Act patients. They may be deprived of liberty in an emergency for up to seven days, as against 72 hours for Mental Health Act patients. They may have the detention authorised for up to 12 months, as against six months for Mental Health Act patients. They have no statutory second medical opinion procedure for medication beyond three months or for electro-convulsive therapy. They have no entitlement to free aftercare for care and treatment consequent on the care and treatment they received on detention. While the safeguards for Mental Health Act patients and Bournewood patients need not be identical, those for Bournewood patients should not be second rate. I hope that the Government will think again about the unequal two-tier system they are proposing to set up and give better safeguards to patients who are, by virtue of their lack of mental capacity, perhaps the most vulnerable in the whole health and social care system.

The vulnerability of people with learning disabilities in residential care was shockingly highlighted earlier this year by the report of the Healthcare Commission and the Commission for Social Care Inspection on the abuse of patients in learning disability services in the Cornwall Partnership NHS Trust. The report was prompted not by the managers of those services, many of whom were culpably unaware of the abuse that was taking place, but by patients’ families and by the hard work of East Cornwall Mencap Society. Families and friends are often the first people to become aware of abuse or poor practice within hospitals and care homes, and yet the Bill proposes that the only person with any right to call for an assessment and authorisation of possible deprivation of liberty in a hospital or care home is the manager of the hospital or care home in question. I hope that the Government will consider amending the Bill to ensure that third parties will have the right to request an authorisation of the deprivation of liberty to make sure that the responsibility for identifying deprivation of liberty is not exclusively placed upon the very people responsible for depriving them of liberty in the first place.

Given the importance of ensuring that hospital and care home managers follow best practice in relation to the care of vulnerable people, I am very concerned that the focus on authorising deprivation of liberty may obscure the fact that, in almost all cases, deprivation of liberty is unnecessary and should not be authorised.

The Bournewood provisions should be about preventing deprivation of liberty, not rubber-stamping it. Depriving a person of liberty rarely, if ever, reflects best practice. Whatever else one might want to say about the detention in Bournewood Hospital of the autistic man known as HL, which led to the Bournewood judgment, it certainly did not represent the least restrictive possible care regime. It would be helpful if the Governments could give more examples of when a person who lacks capacity in a hospital or care home should be kept in circumstances which amount to a deprivation of liberty under Article 5 of the European Convention on Human Rights. I am not sure that this is very often, if ever, best practice and I am not sure that we should be writing new laws to allow it to happen.

I regret that this still seems a deeply flawed Bill. Those of us who have played a part in this eight-year process know that this is not for want of effort, evidence and argument. It is still not too late to undo most of those flaws. I know that noble Lords from all sides of the House and individuals and organisations involved in every aspect of the care and treatment of people with mental health problems will be working hard together to make improvements across the board. I urge the Government to listen to them.

My Lords, as the noble Lord, Lord Rix, powerfully indicated from his very considerable experience and wisdom in this area, many aspects of the Bill are a disappointment. As he said, it marks the latest stage in a lengthy argument about the purpose of mental health legislation. The decision not to proceed with the 2004 draft Bill was wise, not least in view of the breadth of opposition to it. However, the Bill now before your Lordships has not taken sufficient account of the criticism brought against several of its proposals, not least, as the noble Lord, Lord Rix, indicated, by the comprehensive report of the Joint Committee chaired by the noble Lord, Lord Carlile of Berriew.

The Bill seeks to strike a balance between the rights and autonomy of patients and the safety of both patients and the public. Certainly, Christian teaching in its concern to protect vulnerable people requires due weight to be given to both aspects. Autonomy is a vital safeguard for mentally ill people in giving priority to their opinions, feelings and interests concerning care and treatment over and against the interests of others, including the relatively powerful professionals and institutions treating them. However, autonomy may need to be limited or indeed overridden, either because, as the noble Baroness, Lady Carnegy, said, someone poses a danger to themselves or, less commonly, to other people, or because their ability to make decisions has been significantly impaired by their illness. Regrettably, the latter criterion is absent from the Bill.

Six issues are of particular concern to these Benches. First, as the noble Lord, Lord Rix, said, is the absence from the Bill of a set of general principles for the care and treatment of people with mental health problems. That is very disappointing. Such principles expressed in statute rather than in codes of practice would be helpful to practitioners and reassuring to service users not only when facing questions about compulsory powers but as a broad guide to good practice.

Secondly, if the definition of “mental disorder” is to be simplified, as proposed in Clause 1, it is important that the specific exclusions from coverage of the Act should be maintained and, preferably, extended. Compulsory detention and treatment should be based strictly on mental disorder and should certainly not be used for the purpose of social control. I welcome the continued restriction on the circumstances in which people with learning disabilities can be subjected to compulsion, and the exclusion of substance abuse. I note what the Minister has said and what has been written in background material on sexual deviance. In Committee, it may be useful to debate all these matters and possibly certain cultural and political beliefs when considering grounds for exclusion. Problems in applying the categories should be tackled by training and not by the adoption of an excessively broad definition.

Thirdly, the potential danger posed by a relatively small number of people with severe personality disorders that are judged to be untreatable must not be allowed to blur the distinction between compulsory treatment and preventive detention. The criterion of “appropriate medical treatment” employed in Clauses 4 to 6 without the requirement of therapeutic benefit to the patient is unacceptably vague. It threatens to turn mental health professionals into guardians of public safety rather than what they are meant to be, which is agents of care and healing. If, as the Government argue, there is no desire to detain people without a clinical purpose, why not say so explicitly? Those who are untreatable but are believed to pose a serious risk to other people should be dealt with under criminal justice rather than mental health legislation.

Fourthly, there is perhaps the most controversial part of the Bill, the proposals in Clauses 25 to 29 for supervised community treatment. They arise from real shortcomings at present in dealing with patients who have been discharged from hospital and then suffer relapse in the community. However, those failings, which as we know sometimes have tragic results, are not solely the result of the absence of compulsory treatment. Too often, they reflect the inadequacy of aftercare and support services and failure to work effectively with patients and carers within the existing law. That said, I accept that there is a case for community treatment orders to be applied to what the Joint Committee described as a,

“clearly defined and clinically identifiable group of patients”.

That would entail raising the threshold of eligibility to include previous relapse, requiring consultation with carers, narrowing the conditions of the order to residence and availability for treatment, and setting a time limit. The requirement that a patient should abstain from particular conduct is, as the Mental Health Alliance has commented, tantamount to creating a “psychiatric ASBO”. We must think carefully about designing community treatment orders so that they will be effective for their intended purpose.

Fifthly, it is welcome that in Clause 38 the Government have moved to remedy the so-called Bournewood gap, which was referred to both by the Minister and the noble Lord, Lord Rix, by amending the Mental Capacity Act. While logical in its way, this has the effect of creating a complicated set of procedures with safeguards that are inferior to those of the Mental Health Act. Patients who lack the capacity to consent to detention and treatment will be disadvantaged in terms of their rights to a second medical opinion, to a hearing and to aftercare. They will be disadvantaged in the maximum length of a detention order and lack of access to a mental health review tribunal. In addition, their relatives will not be able to request an assessment of detention or an ordering of their discharge. This smacks of minimal compliance with human rights legislation and I hope that in subsequent debate in Committee your Lordships will be able to suggest suitable improvements.

Finally, I regret that the limited scope of the Bill has diverted attention from the primary need to improve mental health services. If we were to take seriously the right of patients to timely assessment of mental health needs, to independent advocacy and to non-discriminatory treatment, we would be less preoccupied with crisis intervention and a great deal of avoidable suffering and distress would have been prevented. The Scottish mental health Act of 2003 offers a good starting point in that respect. We will need to return to these urgent questions which, together with families and carers, directly affect one quarter of the population of this country.