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Mental Health Bill [HL]

Volume 688: debated on Monday 15 January 2007

House again in Committee.

20: After Clause 7 , insert the following new Clause—

“High doses

After section 63 of the 1983 Act (treatment not requiring consent) insert—

“63A High doses

No medicine or medicines shall be administered to a patient at doses that singly or in combination exceed limits set out in the British National Formulary, unless—

(a) he has consented to that treatment up to that dose and either the responsible clinician or a registered medical practitioner appointed for the purposes of this Part of the Act by the Secretary of State has certified in writing that the patient is capable of understanding its nature, purpose and likely effect and has consented to it; or (b) a registered medical practitioner appointed under paragraph (a) (not being the responsible clinician) has certified in writing that the patient is not capable of understanding the nature, purpose and likely effects of that treatment at that dose but that, having regard to the likelihood of its preventing serious risk to the life of the patient, the treatment should be given up to that dose.””

The noble Earl said: Amendment No. 20 is very much in the same vein as the previous amendment but relates specifically to high doses of psychiatric medication.

Psychiatric medication, as we have said in earlier debates, can have very serious side effects, which can be dose-related. Higher doses increase the likelihood of adverse effects and do not necessarily bring additional therapeutic benefit. When a drug receives its marketing authorisation, it is based on what are considered to be safe levels of use. By definition, if you raise the dose above the upper limit cited in the British National Formulary, you are introducing risk because the maximum dose given in the BNF is often substantially above the usual dose range. Both NICE and the Royal College of Psychiatrists have produced guidance that recognises that key point. The college’s consensus statement says:

“High-dose regimens are associated with a greater risk of adverse effects”,


“high-dose prescribing…should rarely be used”.

The existence of guidance is not enough. We know, for example, from the inquiry into the death of David Bennett, that overmedication frequently occurs, not least when those being medicated are people from black and ethnic-minority communities. Dose levels are often upped if they are not seen to be working but it is not uncommon for that to happen where not enough time has been allowed to let the medication work. It also happens when it would be better to take a step back and consider a completely different approach to the problem. But many psychiatrists like to stick to the medication that they know and do not like to change.

I think we should be quite disturbed by that evidence. It tells us that the mere existence of guidance does not guarantee good practice. What is the answer? The Royal College, through its Prescribing Observatory for Mental Health, has recommended that service users should be informed if they are receiving high-dose or combination antipsychotics, and the joint scrutiny committee on the 2004 draft legislation recommended that doses of treatment above the BNF levels should be allowed only in exceptional circumstances and when all other options have been exhausted. Both these points are addressed in the amendment.

I dare say that the Minister will argue that this is a matter of clinical practice and therefore not appropriate for inclusion in the Bill. Let me say why I think that that is wrong. When the 2004 draft Bill was published, it would have required care plans to set out the maximum dosage of drugs it was proposed to administer, specifying whether this was over BNF limits. That was an important recognition by the Government that there was a serious gap in patient protection. There is a gap. All the amendment tries to do is to address the safeguard that the Government previously agreed to. Doses above BNF limits would be made explicit in the process of consent, but if a patient who has capacity to consent does not give it for treatments that go beyond authorised limits, he should not be forced to receive them. If he does not have capacity, there need to be very good reasons why high-dose medication should be given. The hazards associated with it are justifiable only if there is a high risk of harm from not treating with it. The amendment therefore stipulates that in such circumstances the only valid grounds for exceeding BNF doses would be to prevent serious risk to the life of the patient.

I am absolutely clear that these safeguards are right. I am equally sure that they need to appear in the Bill. To force someone to take medication that they do not want is a very serious matter. To force someone to do so when there is real risk involved is something that we would not tolerate in any other branch of medicine, and we should not tolerate it in this area either. I hope very much that the Minister will wish to consider the amendment in a positive light. I beg to move.

I speak to this amendment from personal experience of chairing an NHS trust with a large mental health component. I hope that the noble Baroness, Lady Murphy, will forgive me if I say that she has sometimes been critical of some of her colleagues. I, too, am about to be critical of some of her colleagues. I refer to a matter that worried me enormously. You would occasionally find consultant psychiatrists and registrars carrying out “heroic” treatment. Having found that a dose up to the formulary limit was not working, they gave more, and they talked of that with pride. That was one of the most disturbing matters that I came across in all my time walking round the locked and ordinary mental health service wards. The noble Earl, Lord Howe, is right to say that this measure must be included in the Bill. Guidance to the effect that this practice should not be followed has been in place now for many years, but the truth of the matter is that it is still done, and is commonly done.

I have looked at the report on the death of David Bennett and listened to the evidence of Dr Kwame Mackenzie, who has studied this matter in detail and is worried that patients who are seen as big and black are still given larger doses. Dr Chandra Ghosh says that if the dose is not working it is illogical simply to give more and more of it. The more you look at that, the clearer it becomes that there is a real problem here. I do not believe that just having the measure in the Bill’s guidance will work. It needs to be in the Bill. I strongly support the noble Earl. I hope that the Minister will recognise that the provision needs to be stated very firmly in the legislation.

The noble Earl and the noble Baroness outlined very clearly why this amendment should be in the Bill. I stress that doses of medications outwith the British National Formulary limits can help on rare occasions. But the amendment does not rule that out. It would merely ensure that there is a secondary certificate to say that this should be done or that the patient has consented to it, so that there is a clear record and clear second opinion. This practice is probably improving. I certainly saw a dramatic improvement in special hospitals’ prescribing of high doses of medication; it did come down. Nevertheless, it still goes on. It seems to me that by its nature it cannot be subject to randomised controlled trials, which can be done only with the doses of medication approved by the companies manufacturing the drugs. This would enable it to continue on rare occasions, but only when it has the full support of those who have been considering the case, in addition to the responsible medical officer.

This has been an interesting short debate. I do not disagree with the noble Lords and the noble Earl, who commented on the impact of what can be very powerful drugs and on the dangers of overmedication.

However, this is ultimately a matter of clinical practice. There would be real difficulties with putting into legislation what the noble Earl seeks to do. I accept, however, that there are issues regarding clinical practice and the code that need to be addressed. In medicines management in general, in mental health trusts, there are a number of challenges that fall to be met. I will come back to discuss a Healthcare Commission report on that, published last Friday.

The amendment aims to put restrictions on prescribing medications at doses above the limits supposedly set out in the British National Formulary. It is worth pointing out that the BNF does not set, or even purport to set, any such limits. To quote from the BNF itself:

“The doses stated in the BNF are intended for general guidance and represent, unless otherwise stated, the usual range of doses that are generally regarded as being suitable for adults”.

The BNF further states:

“The BNF is designed as a digest for rapid reference and may not include all the information necessary for prescribing and dispensing”.

It goes on to say:

“The BNF should be interpreted in the light of professional knowledge and supplemented as necessary by specialised publications and by reference to the product literature. In areas requiring specialist expertise, it is expected that the BNF will be supplemented by specialist knowledge”.

The BNF does not provide guidance on calculating high doses when combinations of similar drugs are used, referred to as polypharmacy.

The noble Earl, Lord Howe, referred to the Royal College of Psychiatrists council report Consensus Statement on High-Dose Antipsychotic Medications. The statement acknowledges two different mechanisms for determining a high dose when using a combination of different antipsychotics. One method involves converting each drug into chlorpromazine equivalents, while the other method adds together the percentage of the BNF limit for each of the drugs used. The statement uses the latter method in its guidance, which addresses best practice, to limit the need for high doses, and best practice in the use of high doses and polypharmacy.

We believe that, in the end, these matters are best left to clinical judgment, in the light of the various guidelines given. That is the best approach. Noble Lords will see that there are, and would be, severe practical difficulties in using the BNF provisions in statute in the way described, for the reasons that I have given. I accept that there is a challenge here to do all we can to ensure that clinicians prescribe doses in the most appropriate way possible. We believe that the code of practice, and all that is associated with it, is the best approach to this matter.

I would also like to take this opportunity to comment on the Healthcare Commission report, published last Friday, Talking about Medicines: the Management of Medicines in Trusts Providing Mental Health Services. I commend that report to your Lordships. It highlights the importance of safe, effective and efficient medicine management as central to the delivery of high quality patient care. I assure the noble Earl, Lord Howe, that the department, the trust and the commissioners will want to review the recommendations in that report. That is one way that we can look to dealing with some of the issues that the noble Earl raised tonight.

I am grateful to the Minister for his full reply. While I had not expected him to accept the amendment, I had looked forward to a constructive response, and that is what he gave. I hope that this is an area that the Healthcare Commission will look at. Judging by the contributions around the Committee, it is an issue that concerns a number of people who are in a position to know about it. I thank all noble Lords who have taken part. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 [Amendments to Part 2 of 1983 Act]:

20A: Clause 8 , page 5, line 2, at end insert—

“( ) In section 8 of the 1983 Act after subsection (5) insert—

“(6) Where a patient who has been received into guardianship is made subject to a requirement made under subsection (1)(a) above that they reside at a place specified by the guardian, and the patient has been served by the guardian with a written notice to that effect, the guardian, or any person authorised by the guardian, shall have the authority to take the patient and convey him to the place specified, at any time within the period of 14 days beginning with the date on which the notice was served.””

The noble Baroness said: This amendment has been drawn up by the British Association of Social Workers through the national network of approved social worker leads. It has been tabled in the light of deficiencies in the current Act, and it aims to tidy up gaps in the legislation. The noble Baroness, Lady Gardner of Parkes, initially tabled this and other amendments, and I believe that she has spoken to the Bill team about them, as has the British Association of Social Workers. I have added my name to hers.

The amendment concerns the effect of guardianship applications. Currently, practitioners face the frustrating situation that where a service user needs to live in a particular place but is unwilling or unable to agree to do so, an impasse can often be reached. While the law provides the power to require him or her to live in a particular place and to be returned to that place if he or she leaves without the guardian’s permission, no power currently exists in the Mental Health Act 1983 to take them there in the first place. As a result, guardianship is less well used, and service users are thereby less well protected than they might otherwise be.

The Department of Health’s figures indicate that about 500 people are put on guardianship each year. Overall, about 1,000 people are subject to guardianship at any one time. However, 15 authorities, out of 150 in total, account for over half of those applications. It seems that some authorities do not use this measure at all. The problem with the current legislation is that there is no power to convey the person to the place where they need to live.

The anomaly arises from an oversight during the passage of the 1983 Act. In its original form as the Mental Health Act 1959, guardianship gave the guardian the powers of a parent over a child under 14, which meant that a power to transport was inherent. When this provision was removed in 1983 in favour of a list of specific powers, it was not recognised that a specific transporting power was required. The amendment would increase the scope of guardianship as a less draconian, welfare-driven rather than treatment-oriented alternative to a community treatment order. I hope that the Minister will be minded to accept the amendment as a solution to a current problem. I beg to move.

The noble Baroness clearly and rightly wishes in the amendment to rectify an apparent anomaly in the Act. A patient subject to guardianship may be returned to the place where he is required to reside if he absconds from it, but there is no specific power to take him there in the first place. That is inconsistent, and there clearly is a lacuna in the Act. We recognise that there should be a specific power.

However, I draw the Committee’s attention to Schedule 3 to the Bill, which in paragraph 3(5) inserts a new subsection into Section 18 of the Act. The new subsection has precisely the effect that the noble Baroness is seeking, by providing that any patient who is required to reside in a particular place under the Act may be taken there, as well as returned there, should he abscond. This provision will apply to patients subject to guardianship or on leave of absence. It will also mean that patients on supervised community treatment who are recalled to hospital can be taken to that hospital.

I have looked back through the Explanatory Notes on this matter and I acknowledge that they do not make clear this change in respect of guardianship. I apologise for the omission. I hope, however, that when your Lordships have had an opportunity to look at the relevant subsections, they will agree that the anomaly raised by the noble Baroness is dealt with in the Bill. I hope that the noble Baroness will feel able to withdraw her amendment.

I am most grateful to the Minister for her response. I am slightly relieved to hear that the Explanatory Notes were not clear, because I would not want to put my name to an amendment that was completely unnecessary and to waste the time of the Committee. In the light of her very positive response, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 agreed to.

Clauses 9 to 11 agreed to.

Clause 12 [Amendments to Part 5 of 1983 Act]:

21: Clause 12 , page 9, line 5, at end insert—

“( ) Before section 76 insert—

“75A Advance decisions and advance statements: making and withdrawing

(1) An advance decision is a decision, made by a person (“P”) when he has reached the age of 18 and when he has the capacity to do so, that if—

(a) at a later time and in such circumstances as he may specify, a specified treatment is proposed to be carried out or continued by a person providing health care for him, and (b) at that time he lacks capacity to consent to the carrying out or continuation of the treatment, the specified treatment is not to be carried out or continued. (2) An advance statement is a written statement made and subscribed by a person when he has capacity to do so setting out the ways he wishes to be treated for mental disorder.

(3) An advance decision or an advance statement may be regarded as specifying a treatment or circumstances even though expressed in laymen’s terms.

(4) P may alter or withdraw an advance decision or an advance statement at any time when he has capacity to do so.

(5) An advance decision need not be in writing.

(6) A withdrawal, a partial withdrawal, or an alteration of an advance decision need not be in writing.

75B Validity and applicability of advance decisions and advance statements

(1) An advance decision or an advance statement made under section 75A above is not valid if a person (“P”)—

(a) has withdrawn the advance decision or advance statement at a time when he had capacity to do so, (b) has, under a lasting power of attorney created after the advance decision or advance statement was made, conferred authority on the donee (or, if more than one, any of them) to give or refuse consent to the treatment to which the advance decision or advance statement relates, or (c) has done anything else clearly inconsistent with the advance decision or advance statement remaining his fixed decision. (2) An advance decision or an advance statement is not applicable if—

(a) that treatment is not the treatment specified in the advance decision or advance statement, (b) any circumstances specified in the advance decision or advance statement are absent, or (c) there are reasonable grounds for believing that circumstances exist which P did not anticipate at the time of the advance decision or advance statement which would have affected his decision had he anticipated them. 75C Effect of advance decisions and advance statements

(1) If an advance decision or an advance statement made under sections 75A and 75B above is found to be valid and applicable to the treatment, decision or measure at the material time the person making the decision shall have regard to P’s wishes as specified in the advance decision or advance statement.

(2) Where a decision is made which conflicts with a valid and applicable advance decision or an advance statement the requirements set out in subsection (3) below must be complied with.

(3) Those requirements are—

(a) recording in writing the circumstances in which those measures were, or treatment or decision was, authorised, given or made, or, as the case may be, not authorised, given or made, and the reasons why; (b) supplying— (i) the person concerned; and (ii) the person’s nearest relative, with a copy of that record and placing a copy of that record within that person’s medical notes.””

The noble Baroness said: First of all I must remind the House that the Mental Capacity Act 2005 enables someone who has mental capacity to make a decision that they do not want a particular type of treatment if they should lack capacity in the future. A doctor must respect this decision. My amendment gives the same privilege to a person with full mental capacity to make a decision that they do not wish in the future to receive a particular form of treatment if they become incapacitated through a further episode of mental illness. This is a refusal of treatment, because no one can specify exactly what treatment a doctor will recommend in the future. It is not a demand for treatment, it is a refusal to accept some treatments. However, patients who have experienced treatment often have a good idea about what helped and what did not, and may want to express hopes and wishes about the future as well as to specify what they do not want. The noble Earl, Lord Howe, talked about this in an earlier amendment today. Patients’ wishes should be heard and taken into account when deciding treatment.

At the moment we have differential rights between those subject to the Mental Capacity Act and those to the Mental Health Act. Under the Mental Capacity Act a person can make an advance directive on refusing further treatment, for example should they develop advanced Alzheimer’s disease. If having developed the condition that person does not resist medical intervention, they will be subject to the Mental Capacity Act and the advance directive will be honoured. If on the other hand they resist medical care, they may be subject to the Mental Health Act and the advance directive may not be honoured.

I can see no good reason why for incapacitous patients there should be any distinction between using force in treatments for physical disorder and treatments for mental disorder. There are a number of reasons for saying that. First, no distinction is made between treatments for physical disorder and those for mental disorder if the patient is incapacitous but compliant. Under the Mental Capacity Act a patient with, for example, Alzheimer’s disease would be able, despite resistance, to receive treatment for dental disease, for example, but not for the Alzheimer’s disease itself. Secondly, the distinction between treatment for mental disorder and for physical disorder is often one of semantics—disease of the thyroid gland, for example, may cause depression or pseudo-dementia. In these circumstances treatment of the depression or pseudo-dementia would also be treatment of the thyroid disease. How are we to make a distinction between those two?

Advance directives are a tool to empower patients to become good partners in negotiating individualised treatment and care in the future, when they have a time of crisis. When negotiated in advance as an agreement between patient and clinicians they are even more useful. Advance agreements are widely used in German-speaking countries and they are offered routinely in at least 50 psychiatric hospitals in Austria, Switzerland and Germany, where they are legally binding.

There is evidence from a randomised control trial conducted by Dr Claire Henderson and her colleagues at the Institute of Psychiatry, published in 2004, that use of agreed joint crisis plans made during the recovery phase of an episode reduced compulsory admissions and treatment in patients with severe mental illness over the follow-up period. The reduction in overall admission was less but this was the first structured clinical intervention that seemed to reduce compulsory admission and treatment in mental health services.

In practice patients sit down with their professional when they are well and agree to carry around a card with them that usually has the name of a relative or advocate to be contacted and an outline of a care plan and acceptable medication. Earlier today we saw the noble Baroness, Lady Knight, with her card for an advance directive on her physical care. It is similar to the cards that patients on the continent, and many patients here, often carry. The card may very well say yea or nay to ECT. Patients have very individual responses, as we have heard.

In Illinois these arrangements are encouraged and binding. Participants in such schemes list preferred medications and the medications they would refuse, most often first-generation anti-psychotics regardless of whether they would refuse ECT. Half of them appoint a surrogate decision maker. Most desire a directive that would be irrevocable during periods of incapacity. In Illinois, the advance directive is binding for three years.

The recent Scottish Act which we have discussed at length in Committee enables people who are detained to make an advance statement not only to refuse treatment in advance but to specify their wish for a treatment they found helpful. It is extremely helpful for a clinician when faced with a patient who is unable to express their wishes to have a clear indication of the patient’s views on type of treatment. It also means that patients can play as full a part as possible in decisions on care and treatment. That is likely to improve engagement at a later date.

In a case where an advance decision or statement is being considered there have to be processes to decide whether the decision is valid and applicable—that is, whether the circumstances are those the person envisaged when expressing their view—in order to protect the patient and the clinician from misunderstanding or error. These amendments would provide a framework for doing so. In summary, I want to introduce a mechanism and support for patients’ participation in their own future care and respect for their autonomous decisions when they are well. I beg to move.

I support the amendment. It has been moved with great cogency by the noble Baroness, Lady Murphy, who cited evidence from the profession. I add nothing to that.

I remind noble Lords that the joint scrutiny committee recommended, after hearing evidence, that:

“the Government bring forward legislation … which would enable people to make advance statements and to record advance decisions, particularly if there is a treatment that they would not wish to receive”.

One or two examples of that have been given by the noble Baroness. The committee also recommended,

“that the arrangements provide for these statements (in relation to any future mental health treatment) to be taken into account by, but not become binding on, clinicians in determining the provision of medical treatment for mental disorder under the Act”.

I confess to great disappointment that that clear conclusion of the joint scrutiny committee has not been included in the Bill.

I remind the Committee that, in November 2002, the Joint Committee on Human Rights, in its 25th report, recommended at paragraph 91 that,

“the right of patients to give directions about their future treatment, during periods when they are capable of doing so, should be respected where doing so would not present a threat of death or serious harm to the patient or anyone else”.

The scrutiny committee also highlighted the first point made by the noble Baroness in moving the amendment: the lack of consistency between the Mental Capacity Act and the Mental Health Act 1983. I look forward with interest to hearing what the Government propose to do, or how they propose to justify that very obvious inconsistency.

The amendment includes, as proposed new Section 75B(2), three sets of circumstances in which advance decisions or advance statements would not be applicable. Those three sets of circumstances seem to me to provide all necessary protection to clinical judgment and to patients in the sort of circumstances referred to by the noble Baroness. I cannot see any sound reason why the Government should reject this amendment. I hope the Minister will at the least be prepared to consider the matter further.

I hesitate to draw attention to any of the wording of the amendment in the light of the two previous speakers and because the sentiment behind the amendment is so terribly important. I have a small concern as a clinician who does not work in mental health that the understanding out there is that an advance decision to refuse treatment made by someone with capacity will be legally binding and that advance statements such as the one we were shown by the noble Baroness, Lady Knight of Collingtree, are advance statements of wishes and preferences should the situation arise. However, when patients are placed under compulsion we need clarification of which Act will become the overriding Act.

The other aspect on which I have a small concern is that the amendment says that an advance decision need not be in writing. I have a difficulty with something being legally binding if it has not been clearly recorded somewhere. If a patient wishes to tell me what they do not want done but they are not going to write it down, I will, in good clinical practice, record it in the notes. I will read it back to them and have someone there as a witness to the fact that I really am reading back what I have written. They may countersign it or have the person sign it on their behalf, but it acts as a verification procedure so that something is clearly written down and so that the wording has been checked out with the patient. If a situation arises and another clinician who has not had those conversations is dealing with the patient, those conversations are clearly recorded.

The other provision is correct in that a withdrawal or partial withdrawal need not be in writing. However, I have another concern in that if an advance decision is going to be altered in advance, something should be clearly recorded in writing and agreed so that there is a record of the patient’s wishes which cannot be disputed. The other matter is the typographical error right at the end of the amendment, which is completely trivial. I feel that the aspect of recording a decision in writing needs to be looked at.

Perhaps I may just respond to the noble Baroness, Lady Finlay. In drafting the amendment people were trying to do the same as we discussed the other day in relation to impaired decision-making—to bring about an equivalent provision to the Mental Capacity Act but to lower the threshold because we have to deal with people whose decision-making ability becomes impaired. In so doing, an error has occurred in the amendment. It should make explicit that the decision either to withdraw or to give life-sustaining treatment has to be in writing. The noble Baroness will perhaps agree with me because she sat through all the long discussions on the Mental Capacity Act, when we went through these matters with great care and attention. Under the Mental Capacity Act there is no need for a withdrawal to be recorded in writing. That is to enable sufficient flexibility for the patient and the clinician to cover a change in the patient’s wishes or a change in the circumstances. Given the very strong views of the noble Baroness on this, I do not believe she would want to change that. I accept her point about the written record. One of the reasons why this sort of thing has crept in is—as I understand it, having read chapter 32(a) of the draft code of practice, where the Government set out their main intentions—that there is no distinction between patients who have capacity and those who do not. I wonder if the Minister could respond to that.

I turn to the point of the noble Baroness, Lady Finlay, who asked which Act would come into effect. She will find that in another part of the draft code the Government make it absolutely clear that Part 4 of the Mental Health Act always has supremacy over any statement in the Mental Capacity Act. It is for those reasons that we on these Benches believe that there has to be an equivalent and that we therefore need these statements on the face of the Bill, as they are in the Mental Capacity Act.

I hope this is a matter that all of us on the Committee can sign up to, at least in principle, without serious argument. We are dealing here with a proposal that, par excellence, could deliver a step change in patient empowerment for those with mental illnesses. When the Government responded to the Joint Scrutiny Committee report in 2005, they sounded quite positive about advance statements and decisions. They said that they were carefully considering how a provision of some sort could be placed on the face of the Bill. It is really quite disappointing that nothing has appeared, but it is not too late to find a way through. I hope that the Minister will be receptive.

This has been an interesting debate. I know that the House discussed these issues at length when we considered the Mental Capacity Bill, now the Mental Capacity Act 2005. That Act put advance decisions on a statutory footing and provided for any person to say in advance that they want to refuse treatment if they lose capacity to make such decisions in the future. A valid and applicable advance decision to refuse treatment has the same force as one made by a person with capacity and must be followed.

The Mental Capacity Act provides that these advance decisions do not apply where the person is subject to Part 4 of the Mental Health Act, nor the new Part 4(A) provided for in the Bill. That is because the Mental Health Act provides for circumstances in which a patient with a mental disorder can be treated without consent in order to protect themselves or others. Of course we believe in the importance of taking account of a patient’s wishes as fully as possible, including those expressed in advance. I assure the House that we will give guidance to practitioners in the code of practice on giving those views due consideration whenever decisions about the care and treatment of the patient are made. I have noted the comments of the noble Baroness, Lady Barker, about the code of practice. I will look into those matters and come back to her.

It is in the nature of this legislation that compulsion is provided for, precisely because the patient may not wish to have the treatment that he needs. Clearly, compulsion is no light matter. We have many safeguards in place. Good clinical practice demands, wherever possible, that treatment is provided under this Act with the consent of and in accordance with the wishes of the patient. Clearly, the more that a patient is engaged with and contributes to the process by which decisions are made, the better are the outcomes for him.

Briefly, I shall outline a number of scenarios in which we do not think that the amendment would work, but where we believe that professionals should consider past expressed wishes. A past wish is not always relevant only where the patient has lost capacity, but it is not clear in the amendment that it is intended that an advance decision is only ever applicable where the patient lacks capacity. A patient may choose not to discuss a matter with a mental health professional for a variety of reasons, or it may not be appropriate to have a discussion when it is needed. For example, the patient may be particularly agitated and discussing the type of treatment that they urgently need may only increase their agitation in a way that the professional judges unacceptable.

In managing that situation, we would want professionals to consider what they know about the patient’s views and any relevant past discussions that they have had. That is good practice. We think that that is best addressed in guidance. We do not want professionals to consider that they need only take patients’ past views into account where they now lack capacity.

Even when professionals are having contemporaneous discussions with a patient, we would expect them also to consider what the patient had said or written in the past and raise that in their consultation as appropriate. A patient may appreciate being reminded of what they have said in the past—or indeed what had happened in the past, such as a particular response to a treatment—when considering what they want to happen in future. Where a decision is made that is contrary to the wishes of the patient, we would expect it to be recorded—whether it was not in accordance with the patient’s wishes as expressed at the time or, where no such consultation could take place, if it went against the patient’s past expressed views. We consider that good practice

We all agree that advance wishes are important in determining the best treatment for a patient, stressing that importance in guidance, but the amendment is not the right way to do that. There are legitimate reasons why the advance decisions in the Mental Capacity Act do not apply where the person is subject to Part 4 of the Mental Health Act. The circumstances under the Mental Health Act in which a patient with a mental disorder can be treated without consent to protect them or others are very distinct.

I thank the Minister for that careful reply. I must confess to being puzzled why it is possible in so many jurisdictions of the world to respect the autonomy of patients in expressing a view in advance—especially when they have already had a breakdown and make the effort to sit down with clinicians to say what has been helpful to them—and to have their wishes respected. It seems that that is perfectly possible north of the Border, and I remain disappointed that there is such opposition to the idea being accepted in this country.

For the moment, I shall go away to think about that. I recognise that there may be some difficulties with the drafting of the amendment. I hope that we will find some way to recognise that mental health patients should have their wishes respected, especially when they are well. Perhaps we shall come back with an amendment at Report but, meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 agreed to.

Clause 13 [Amendments to other provisions of 1983 Act]:

22: Clause 13 , page 9, line 32, at end insert—

“( ) In section 45 (general interpretation), in subsection (1), insert the following definition at the appropriate place—

““care plan” means a structured plan which sets out timescales, responsibilities and services required to meet a patient’s assessed mental health needs;”.”

The noble Lord said: I shall also speak to Amendments Nos. 42 and 46. These three amendments are grouped because they each concern care planning. Amendment No. 22 seeks to provide a clear definition of what constitutes a care plan because it is not presently referred to in statute. This is necessary to ensure it is clear. Amendments Nos. 42 and 46 are intended to strengthen the statutory duty for the use of care planning both for community treatment orders, if the Chamber approves that provision, and for all detained patients, not just following discharge but from the outset of the order or section.

I intend to speak to the main intent behind these amendments rather than address each in turn, and should make clear that in common usage a care programme approach, or CPA as it is known, is the term used to describe care planning. CPA is the process that should produce a care plan, but the purpose of these amendments is to make care planning itself statutory.

As well as being chairman of the Mental Health Act Commission, I have also had a range of roles over many years in the areas of mental health and black and minority ethnic communities. I am not talking about minority ethnic communities today, although they will be among some of the main beneficiaries of these amendments. I am talking about the main practice standards.

Care planning is a fundamental component of good mental health care. I am sure your Lordships will agree that good practice dictates that all detained patients should have a care plan as a reciprocal requirement of detention. The care programme approach, developed and promoted by the Department of Health, is the basis of effective care planning. As the noble Earl, Lord Howe, said in his eloquent speech at Second Reading on the principles that should underpin a modern Mental Health Act,

“service users should be involved with their own assessment and care”.—[Official Report, 8/1/07; cols. 13-14.]

One would think that that was a simple enough requirement.

One of the stated intentions of the Bill’s drafters is not only that patients should be subject to compulsion under the Act if there is appropriate medical treatment available to meet their assessed needs, but also that the CPA should ensure this takes place routinely, that appropriate treatment is available and that a care plan is drawn up for each patient as soon as possible after admission that informs their continuing care while in hospital and after their discharge.

Unfortunately, despite the Government’s intentions, there remain serious problems in providing patients with robust and appropriate care plans. Quite frankly, it is not happening nearly well enough. Recent research evidence, for example the 2005 report Back on Track by the Mental Health Act Commission and the Sainsbury Centre for Mental Health, demonstrates that implementation of the CPA nationally is at best patchy. Many patients do not have a care plan, or, if a care plan is available in the patient’s record, it is not followed.

It is a significant matter for public concern that, although the CPA has been in existence since 1990, care planning is not at present done well. This directly results in the severest of consequences, such as suicide and homicide. Most worryingly, National Confidential Inquiry into Suicide and Homicide by People with Mental Illness, published only last month, found that 71 per cent of preventable homicides and 45 per cent of preventable suicides were by patients who were not subject to appropriate CPA plans. This is despite clear evidence of severe mental illness, previous violence, self-harm or admission under the Mental Health Act. The report emphasised the importance of ensuring that CPA is properly used for high-risk groups.

Many homicide inquiry reports have found similar evidence of incomplete or ineffective implementation of CPA leading to the most severe outcomes. An example from one of the most recent of these is the MN inquiry. MN stabbed and killed an elderly woman he did not know in her own home. The report concludes that the lack of CPA for MN was a contributory factor to the death of this elderly woman. It concludes,

“even though MN was subject to s3 and on s17 leave this did not ensure he received care according to the basic standards of CPA”.

Indeed, it stated:

“The impact of CPA on MN’s care was virtually nil”.

The inquiry report adds:

“It is expected that the Government will introduce compulsory … treatment in the community, through amended … legislation. We cannot emphasise too strongly that this must be backed up by an effective framework for community care”.

Where a tribunal hears any application concerning a patient,

“this must, in our opinion, include a review or at least a consideration of their CPA care plans”.

Similarly, the inquiry into the John Barrett case, published in late 2006, shows once again the need for good risk assessment and properly drawn up and implemented care plans in managing potentially violent or disturbed patients. Gillian Downham, barrister and the chairman of several of the homicide inquiries, including the inquiry into the MN case, was concerned enough about the repeated failings of CPA to commission an examination of CPA nationally. That was followed by a seminar that I chaired and which involved some of the leading people in the health, social care and legal professions to advise on the future of CPA. This resulted in specific national recommendations for strengthening CPA care planning, and what better way in which to do that than by making it a statutory responsibility?

Recommendations from the full range of inquiries have consistently included calls for practice to be driven by care planning and review. Most of these reports stress the importance of fully involving patients, service users and carers in care planning, and that this should include adequate risk assessment so that care planning can contribute to the prevention of incidents and ensure patient and public safety. In the Mental Health Act Commission’s most recent biennial report, which is to be laid before this House, we wrote:

“Patients’ care plans under the Care Programme Approach are supposed to anticipate crises, and should take account of patients’ preferences in interventions. If care plans can specify actions on the part of the patient or services that will intervene in the early stages of any crisis and possibly avert it, the need to override the patient’s choices through compulsory admission may be avoided altogether”.

Of course, one of the most significant drivers for the Bill has been many people’s concern about public safety. In essence, this means the assessment and management of risk to ensure that people receive the best possible care and treatment. I would be the first to argue that the Mental Health Act should be concerned predominantly with patient care, and I, along with many others in this House, remain concerned to ensure the right balance between the objectives of patient care and public safety. I strongly argue that care planning is central to achieving that balance.

Good patient care based on care planning requires that clinicians follow a robust process of assessment and review, with appropriate treatment, care and support identified for the patient, especially on discharge. Care planning, however, does not define a specific intervention or set of interventions; it is a process, and as such it lends itself well to statutory regulation. And although the clear benefit for patients and the public that would result should be enough on its own to recommend these amendments, it would also underpin the community treatment order if the House approves that part of the Bill. Moreover, tribunals would be in a position to check the existence of care plans, ensuring that patients subject to the Mental Health Act in the community are being provided with a service and thus reassuring the public of their safety.

The Department of Health has recently issued a consultation document on ways of improving CPA. The current proposals are unlikely to deal with what appears to be one of the main problems: the unwillingness, whether intentional or not, of some services and clinicians to give care planning the importance it deserves. One improvement must be to encourage greater clinical involvement, but I am forced to draw the conclusion, based on the evidence and the continuing spate of inquiries into homicides and suicides that I have highlighted, that effective implementation will be achieved only by giving the process statutory force and by ensuring that good practice is adhered to. After 16 years of Department of Health CPA guidance and guidelines, I also firmly believe this is now the only way in which compliance with CPA can be achieved.

As I have already stated, I would be the first to argue that the Mental Health Act should be concerned predominantly with providing the best possible care for the patient, and we in this House are right to be concerned that some of the provisions of the Bill may not have achieved the correct balance between the objectives of patient care and public safety. Yet a very straightforward opportunity to tighten up the present system has been missed. These amendments would provide a straightforward opportunity to address this. Making care planning a statutory requirement would improve care for patients, ensure the safety of patients, and contribute significantly to improving wider public safety. I beg to move.

The noble Lord, Lord Patel of Bradford, has very ably articulated the case for the principle of reciprocity and I support all that he said. One could put his case a slightly different way by saying that just because patients are subject to compulsion, they should not have to put up with poor services. By including a measure that places care planning for detained patients on a statutory footing, I believe that the Government could send a clear signal to patients and mental health professionals that this Bill is not just about coercing people into treatment; it is also about ensuring that necessary psychiatric coercion will be effective and will help a patient to regain and retain the freedoms that need to be temporarily taken away.

The amendment is designed to provide some reciprocal benefit to people subject to compulsory powers. Of course, this does not amount to a guarantee of specific treatment, irrespective of available resources; rather, just as with the current statutory requirements for after-care planning under Section 117, it would require services to assess requirements and then meet them to the best of their ability. The sanction against services that failed to do this would be the ability, but not the duty, of the tribunal to discharge a patient from detention where a care plan is not being implemented. Effective care planning is also key to ensuring patient involvement and encouraging the exercise of patient choice, even if this is within the limited parameters of coercion. There is good and bad practice in this area. There are hospitals where care planning for detained patients is rudimentary at best, so a statutory duty of care planning would be a marvellous lever for use by monitoring bodies, such as the Mental Health Act Commission, as well as patients themselves and their advocates, to ensure that the failing services prioritise this aspect of mental health care.

The noble Lord, Lord Patel, rightly mentioned the MN case, which shows that care planning is not only about the quality of service to the patient; it can also be an important factor in the safety of the public. Although the specific consequences of the failings in the care programme approach were extreme in that instance, we need to bear in mind that the Mental Health Act Commission regularly finds inadequate CPA procedures for detained patients.

Finally, as I mentioned, under Section 117, there is a statutory requirement for after-care planning of patients who are detained under compulsory powers. Despite the understandable emphasis that the noble Lord, Lord Patel, places on the care which a patient receives on discharge from hospital, it is an irony of the current law that a statutory duty to provide such care as is assessed to be appropriate under a care plan takes effect only when the patient ceases to be detained. Amendment No. 46 seeks to extend that statutory duty to the period when the detention is in effect. I cannot help feeling that this would be an ideal lever to enable the Government’s policy in relation to the care programme approach to be better achieved.

I added my name to this amendment for a particular reason. The Joint Scrutiny Committee was regularly presented with very powerful evidence from users on just how little care plans are implemented. I remember one witness talking powerfully about the number of people detained on wards who did not have their care plans implemented and the sheer frustration, and boredom, that that gave rise to on their part, as well as frustration for staff. Many witnesses supported the idea that the care plan approach should be put on a statutory basis, but the Joint Scrutiny Committee did not agree. We disagreed because we thought that it perhaps ought to be left as a matter of practice, which would be easier to change.

However, the Joint Scrutiny Committee made two recommendations. It recommended that,

“the Bill include a requirement on tribunals, when they are examining care plans, to consider wider concerns and considerations than purely medical matters—for example, social and housing needs”.

That is not in the Bill; it is buried deep within the code of practice, so deep that I doubt that it would emerge to see the light of day. The committee went on to

“recommend that the codes of practice contain guiding principles for drawing up care plans which will govern the treatment and, for example, the privacy, safety and dignity of the patient”.

At the very end of the code of practice there is a simple restatement of the law on data sharing, but nothing that would amount to a statement of principles about privacy, dignity and security. What has been included in the code of practice falls so far short of what was recommended by the Joint Scrutiny Committee that it is unlikely that it would make a great deal of difference in practice. Therefore I support the noble Lord, Lord Patel of Bradford, in his attempt to highlight this issue from another angle. Much of what he said underlines not just treatment for those who present no problem whatever, but for those patients whom the Government have said all along they are concerned about, those who may become dangerous and violent. That is because a lack of implementation of care planning has often led to a build-up of tension in such patients which manifests itself in violence. That is why I have added my name to this amendment.

I have a good deal of sympathy with the sentiments behind this group of amendments. Certainly no one seriously involved in this area can be opposed to the production of care plans and a care planning approach. I would be the last person to oppose them. But speaking more as a former director of social services than as a former Minister, I have considerable doubts about enshrining this approach in legislation as these amendments seek to do.

I recognise that the 2004 draft Bill provided for a care plan that related to compulsory treatments under the Act. Personally, I am not convinced that that was a wise route to take and I am glad that the Government have decided to change course. In my view, care planning for people with mental disorders needs to cover both health and social care needs and not be restricted just to the compulsory treatment elements.

I remain somewhat sceptical, as a former manager, of how much operational sense it makes to provide for this in legislation. It is a matter for guidance, training and codes of practice, and it is certainly one to be emphasised in national service frameworks. Alongside this, if you are trying to manage a good service, you would use staff appraisal and performance management techniques to drive up quality. For some of us who have managed in this area, these approaches are likely to be more effective than crafting words in legislation. The bad news is that passing legislation which tries to change behaviour in professionals does not always achieve its objectives, and there are tomes of evidence to show this. In any case, what constitutes good care planning is itself likely to change. What we say about this area today is very different from what we would have said in 1983. That is why I think these are very much matters for guidance and training.

I do not delude myself that all is right in the world in this particular area of care planning. It is right that the Government are conducting a review of the care planning approach and have been seeking views on it. That is the right approach. I find myself therefore strongly supporting the view of the joint scrutiny committee in its report that the care planning approach is important and needs to be comprehensive, but is not something to be enshrined in law.

I sympathise with the views expressed by the noble Baroness, Lady Barker. As I understood her point, the code of practice is not quite up to snuff in this area. It might be wise if the Government thought a little more carefully about how they deal with the care planning approach in the code of practice and in guidance. I suspect that that is what they would do after completing this review, for that seems the appropriate way to deal with this important subject, rather than enshrining it in legislation.

I am grateful to your Lordships for raising this important subject. As noble Lords have said, it is of the utmost importance to ensure that care planning is robustly and consistently undertaken for every SCT patient, while ensuring that every patient detained in hospital has a well thought- through and comprehensive programme of care and treatment. A programme tailored to their individual needs is integral to achieving successful treatment of their condition, whether as an inpatient or a patient in the community.

I agree entirely with the noble Lord, Lord Patel of Bradford, that the care programme approach must underpin supervised community treatment, and that it is a fundamental part of care planning. It should and will do that, but I do not agree that giving statutory force to the care planning process, as proposed by the amendment, is the best way to achieve that. Indeed, giving the CPA statutory force would require legislation to be so widely drafted as to be meaningless.

The draft illustrative code of practice that we have published sets out the process through which practitioners should work in preparing a patient’s discharge from hospital on to SCT, and recommends that the CPA is worked through for every patient. It makes clear, among other things, that the patient—and, where appropriate, their nearest relative and carers—should be closely involved in the care planning process. Officials in the Welsh Assembly Government have indicated that the code of practice for Wales will cover similar matters.

I heard what the noble Baroness, Lady Barker, said about the code of practice. I raised those very issues with officials this morning, as it is not clear and not adequate at the moment. Yet we must remember that the code of practice is itself up for consultation, so this is a good opportunity for the noble Baroness and other noble Lords concerned about the issue to discuss with officials how the code of practice can be improved by taking their concerns into consideration.

I entirely understand the concern expressed by the noble Lord, Lord Patel, that the CPA is sometimes not consistently applied—for every patient, that is—as that can have serious outcomes. However, I do not believe that creating a statutory care planning process is the best way to achieve improvement. It would add little to the quality of application in care planning, which, as my noble friend suggested, is the real issue here. The Government are reviewing CPA in England to look at how patients with the highest needs—as those cases highlighted in the MN review and other inquiries mentioned—can best be targeted. The review will aim to streamline the current care planning process and give patients more control over their care and treatment. Consultation is under way and due for completion in February.

Similarly, in Wales, the Assembly Government have reviewed the operation of CPA and recently issued a report with recommendations to service commissioners and providers in Wales. The implementation of these reviews, not statutory requirements, will improve care planning for the patient group.

The care programme approach has been developed to ensure that all people involved in supporting and caring for the patient, be they friends and family, providers of a specialist mental health service—and I note the noble Lord’s point about the need for clinical involvement—community care services, housing and other services are co-ordinated to ensure that all the patient’s needs are met. In so doing the approach ensures that every need of the patient is identified and that there are no gaps, duplication or even situations where different services are working at cross-purposes with the patient. Of course, implementation is the key; we have to ensure that the code of practice is correctly applied.

It is right and proper that planning for community services—and, in some cases, the provision of some of these services—should not stop when a patient goes into hospital, as the noble Earl, Lord Howe, said. Indeed, when the patient goes into hospital, that provides an opportune time to reflect on how well the care plan has been working, to thoroughly review it and to plan how it should be changed when the patient is discharged.

The amendment has the potential to create confusion and unnecessary bureaucracy. We need to keep some flexibility for the in-patient services to assess and provide for the care and treatment of patients in hospital as part of the care planning process. In-patient staff are already involved in the care programme approach planning process, and, as part of their own assessments and service provision, they will consider the services and treatment the patient may have received prior to being detained in hospital. The treatment plan is an integral part of the care programme approach; however, the amendment risks providing for it to replace an existing CPA.

The quality of care programming is measured in patient experience, and we believe that this would not be best set out in legislation. The best way to improve quality is through the current review and its effective implementation, and through the code of practice. I therefore ask noble Lords to reconsider the amendments.

I thank the noble Earl, Lord Howe, and the noble Baroness, Lady Barker, for their contribution to the debate.

I am keenly aware of the support among professionals, patients and communities with whom I am engaged day to day for improving the definition of CPA and ensuring it has the appropriate statutory force. In moving these three amendments I stated that it is a matter of significant public concern that CPA is not done well, and that defining it clearly and making it a statutory requirement would improve care for patients, ensure their safety and significantly contribute to wider public safety. As the noble Earl, Lord Howe, said, patients should not have to put up with poor services. In a reciprocal arrangement for detention, they should receive high quality services.

I am not entirely convinced by the argument of the noble Lord, Lord Warner, that guidance, training and a code of practice will suffice. We have had guidance, training and a code of practice for 16 years, without success. Unfortunately not only have a number of people received a very poor quality of service, but many have paid with their lives.

I remain convinced that we should follow this route. In my opinion it is essential for the improvement of care and public protection that CPA has statutory regulation. I urge the Government to think again seriously about these amendments, and to take action in using this opportunity to make a real difference to people’s lives. It is clear to me, however, that we need more time to debate these important issues before we can arrive at an agreed settlement, therefore I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 agreed to.

Clause 14 agreed to.

Clause 15 [Certain registered medical practitioners to be treated as approved under section 12 of 1983 Act]:

23: Clause 15 , page 10, line 34, after “recommendations),” insert “is amended as follows.


The noble Earl said: I shall also speak to Amendment No. 24. These amendments relate to Section 12 of the 1983 Act, which deals with the recommendations required from the medical practitioners before someone can be compulsorily admitted as a mental in-patient. There is a strongly held feeling that the existing provisions in Section 12(3) to (7) of the 1983 Act are complex and over-rigid, and that they have failed to keep up with the development of new patterns of service delivery. As a result they contain a number of anomalies. One could try to resolve those within the existing format, but that would probably entail considerable complication. The subsections are also concerned mainly with the relationship of the two doctors, and do not properly address the relationship with the approved mental health practitioner.

This amendment would allow the drafting of regulations based on a set of principles, which would then govern the appropriate choice of assessors in each case. They would also allow, as the present Act does not, for a stipulation that at least one of the assessors must be completely impartial by virtue of having had no previous involvement with the patient or continuing responsibility for his case. I beg to move.

I support the amendment. For many of us, the key point is that one of the people concerned has to be independent: someone who has not seen the patient before or been involved in the case. We support that point very strongly.

Amendment No. 24, in conjunction with Amendment No. 23, would remove subsections (3) to (7) of Section 12 of the Act and replace them with a regulation-making power. Section 12 concerns the two medical recommendations that must accompany an application for a patient’s admission under the Act. An application for admission is made by an approved social worker. Subsections (3) to (7) of Section 12 set out circumstances in which a doctor may or may not provide one of the two medical recommendations that accompany the AMHP’s application for a patient’s admission. For example, the two medical recommendations may not be provided by two doctors from the same hospital, except in certain specified circumstances.

The amendment would replace these provisions with the power to make regulations saying when a doctor may not provide the medical recommendation accompanying the application and when an approved mental health professional may not make the application. In particular, the amendment would allow the regulations to specify when a doctor or an AMHP may not act due to a conflict of interest, when they must have had professional involvement with the patient and when they must not, and when these requirements may be relaxed if they would result in delay involving risk to the patient or others.

We acknowledge that if we were conducting a complete overhaul and replacement of the Act there might be many matters of detail, such as these, that we would wish to adjust. But as the Committee will know, we have deliberately moved away from a comprehensive replacement of the Act to one which concentrates on the most significant and necessary amendments. We are reluctant, therefore, to make changes that fall into the category of desirable but rather less than essential.

This is a matter not just of the drafting of the Bill but also of its implementation, which will inevitably require considerable effort, especially if we are to bring it into force expeditiously. It will also require practitioners and others to learn and to become familiar with new rules and practices. Naturally, we are keen to focus their efforts and those of the department on key changes. However, I have heard the arguments made. We recognise that subsections (3) to (7) of Section 12 are complex provisions and that placing them in secondary legislation would allow more flexibility to ensure provision keeps pace with changes in practice over time. Given that, I would be happy to take the amendment away and consider whether it would be appropriate to come back to your Lordships with proposals that take account of these issues.

I am very grateful to the noble Baroness for that helpful reply. I accept her offer with alacrity. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 24 not moved.]

Clause 15 agreed to.

Clause 16 agreed to.

Clause 17 [Approved mental health professionals]:

25: Clause 17 , page 11, line 33, at end insert “; and

(e) the making of arrangements for the deployment, supervision and support of persons approved.”

The noble Baroness said: One of the many joys of being a member of the Joint Committee was to watch my noble friend Lord Carlile as he chaired a very disparate and feisty bunch of people. He took them, in a masterful way, through some extremely complex issues and he brought before us a range of witnesses all of whom held passionate views and were very expert. He nearly managed the impossible. He produced a very good report but it was nearly a unanimous report. There was one exception. On one vote, two members of the committee—myself and David Hinchliffe, the then chair of the Health Select Committee in another place—took a dissenting view as regards keeping the distinctions for social workers as opposed to health professionals.

We did so for two reasons. One was that we believed that it was important that the distinct traditions of social work, as opposed to the disciplines of health, formed an additional and sometimes second opinion in the health and social care treatment of an individual. The other reason was that, because we come from social care backgrounds, we appreciated the importance of the involvement of people from different organisations. Different organisations have different cultures, practices and policies. We saw the importance of maintaining those two different perspectives on decisions about the health and social care of people with mental health problems.

It is for that reason that I have been happy to put my name to this amendment. The Bill allows the Secretary of State to give directions to local authorities about the making of appropriate contractual and management arrangements for approved mental health professionals. AMHPs—I have not quite got the acronym slipping off the tongue, as they are not yet established—unlike approved social workers, need not be employees of a local authority. They could be free agents; they could come from voluntary organisations. That may be a good and advisable thing. All that is necessary is that there should be directions on their training and approval. Thereafter all the operational arrangements about these subcontractors are left open, therefore they could be employees or have a contractual agreement with the health trust. In my view—and I imagine it would be the view of Mr Hinchliffe were he still a Member of Parliament—that does not maintain the necessary distance from the decision-making of the health trust which would be responsible for a person’s treatment.

For that reason—it is not an unfounded reason, given the overall move towards joint health and social care bodies—there could be an important safeguard for patients where somebody from a distinctly different organisation comes in and on occasion can see something that is blindingly obvious but that had been completely overlooked by people working in the particular culture of health. I hope the Government may address this point, perhaps not by means of my amendment but by tweaking the Bill, just to ensure that that small but important safeguard is there, particularly where people’s social care needs are met in the community. I beg to move.

Listening to the intervention of the noble Baroness, I wished I had been a member of that Joint Committee too under the excellent chairmanship of the noble Lord.

Unlike approved social workers (ASWs), the new approved mental health professionals (AMHPs)—they just trip of the tongue—will not have to be employed by a local social services authority (LSSA) when carrying out their functions. I am aware that the concern expressed by the noble Baroness is shared by some existing ASWs and their representatives, and they believe that this will lead to situations in which arrangements between AMHPs, their employer and the LSSA are not satisfactory However, I do not think that we have to tackle this important issue through legislation.

In opening up the role of the ASW to a wider group of professionals, we intend to bring the workforce in line with more modern ways of working. That includes allowing employers and other organisations the flexibility to develop innovative ways of co-operating to ensure that the right people are in the right jobs, with the right competencies to produce the best outcome for patients with mental disorders. Of course, it is important that LSSAs make appropriate arrangements for the deployment, supervision and support of the AMHPs, but, if we were to prescribe that in directions, we would reduce the opportunity for the arrangements to fit with local practice and we would restrict innovation and development.

I agree that implementation details need to be structured. We do not want to leave trusts and LSSAs floundering to find solutions unassisted, so we will be convening working groups of relevant stakeholders to develop high-quality substantive employer guidance. The guidance will be developed by the employers and practitioners for the employers and practitioners, so it will be very much hands-on guidance. We will address their concerns and provide, instead of one rigid structure, options for carrying out the necessary arrangements. We will also provide examples of good practice and templates for important things such as contracts between trust-employed AMHPs and LSSAs on behalf of which they will be acting. Similarly, in Wales, appropriate guidance will be developed taking account of the views of Welsh stakeholders.

I believe that the guidance, which will be amendable as new processes are developed and new practice comes to light, will be a much more dynamic and therefore helpful way of assisting organisations and professionals to put in place suitable and reliable arrangements to carry out their statutory functions.

As I expected, the noble Baroness went some way to address my fears, but she did not do so entirely. I still think that another outcome may be possible, that of a CSSR—a council with social services responsibility—contracting with an NHS trust to provide this service. It would be simple to do that without prescribing in any great detail where AMHPs should come from. It would be simple to write it into the legislation that they could not come from the organisation that provides the compulsory care.

I shall consider what the noble Baroness has said, and I may return to the matter at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 agreed to.

Clauses 18 to 20 agreed to.

26: After Clause 20 , insert the following new Clause—

“CHAPTER 2A Children and young people Consent to treatment for 16 and 17 year olds

After section 131 of the 1983 Act, insert—

“131A Consent to treatment for 16 and 17 year olds

(1) This section applies to a patient who is aged 16 or 17 years.

(2) Subsection (3) applies if the patient is—

(a) capable of expressing his wishes, and (b) requires treatment for mental disorder. (3) Arrangements may be made by the patient—

(a) for him to be admitted to hospital and remain there and be treated for mental disorder, or (b) otherwise for him to be treated for mental disorder, and he may be so admitted, so remain and be so treated, or be so treated, in pursuance of the arrangements, even though there are one or more persons who have parental responsibility for him.

(4) Subsection (5) applies if the patient refuses to consent to or resists—

(a) being admitted to hospital and remaining there and being treated for mental disorder, or (b) otherwise being treated for mental disorder. (5) The patient’s refusal to consent or resistance may not be overridden by the giving of consent by a person who has parental responsibility for him.

(6) References in this section to the patient being admitted to hospital and remaining there and being treated for mental disorder, or being treated for mental disorder, are references to his being admitted to hospital and remaining there and being so treated, or being so treated, in accordance with any of the provisions of this Act.””

The noble Earl said: This brings us to the way in which the Bill impacts on patients who are children. There is a serious contradiction in the law as it stands in relation to children receiving treatment for mental illness. A young person who is deemed to be competent can consent to being admitted to hospital and can consent to treatment, but, if they refuse admission to hospital or refuse treatment, they can have their decision overridden by their parents under the provisions of the Family Law Reform Act 1969. In other words, a child can be compelled to receive treatment against his or her will despite being deemed competent to make a decision for himself or herself.

I am aware from Young Minds that it knows of cases where parental consent has been used to admit to hospital 16 and 17 year-olds who have not consented to treatment. Young people who are admitted in that way have no access to the protective features of the Mental Health Act. That simply cannot be right or just. I like to hope that the Minister will be in agreement with me. Clause 202(5) of the 2004 draft Mental Health Bill stated that, for 16 and 17 year-olds,

“The patient’s refusal to consent or resistance may not be overridden by the giving of consent by a person who has parental responsibility for him”.

That was encouraging, but it is disappointing that the provision was not carried over into the Bill now before us.

I should tell the Minister that, anecdotally, there is a huge amount of confusion in the minds of some practitioners about whether to use the Mental Health Act or parental consent to override the young person’s wishes, when faced with a refusal from a child, either to go to hospital or to have treatment. Again, that cannot be at all satisfactory. Parents are often in the dark about what it may be best to do for their child and can agree to treatment for him or her simply on the basis that a doctor is recommending it. It is completely invidious to put parents and children in that position in the first place.

Being a 16 or 17 year-old and having your wishes overwritten by your parents when you are adamantly against a particular treatment can severely compromise the parent/child relationship. The amendment would ensure that a young person was properly assessed under the Act, to see if it is necessary to detain him or her. He would then have the protection of that process: visits from the Mental Health Act Commission; legal representation at tribunal; and the review process within the tribunal. There would be no question of the parents feeling compromised, because they would have the assurance and knowledge that the care plan suggested was necessary and in the child’s best interests. I very much hope that the Minister will consider the amendment favourably. I beg to move.

I support the amendment proposed by the noble Earl, Lord Howe. As he stated, 16 and 17 year-olds deemed competent can, currently, consent to admission to hospital and treatment. If they refuse, they can be admitted by parental authority under the Family Law Reform Act 1969, producing the rather anomalous situation to which the noble Earl referred.

The key point for me is that, in those circumstances, a young person admitted to hospital does not have the various protections given under the Mental Health Act. Are we or are we not going to make those available? I would be grateful if the Minister could confirm what he believes to be the current situation, as some practitioners are in disagreement about it. If it is as we state, could it be corrected?

My response to the issue of consent is that it is nonsense that a young person who is deemed competent to decide to accept treatment could be overruled by his parents if he refuses. That is a legal contradiction. If he can decide to accept treatment that they do not want him to have, surely the corollary is that he must be able to decide to refuse treatment that they do want him to have.

I understand that the Government also take that view, for which I applaud them, but they believe that the matter is already taken care of by amendments to existing law and by case law. As other noble Lords have done, I emphasise two things: first, the law is still not clear on the matter; secondly, practitioners in the field are certainly not clear on the matter. YoungMinds has plenty of evidence that practitioners are still accepting the view of the parents above the view of the young person. Without an independent advocate—a matter to which we will come later by virtue of the amendment tabled by the noble Baroness, Lady Howe—a young person in that situation is in no position to insist on his rights. Indeed, he can hardly be expected to know what his rights are, if practitioners do not know either and if the law is unclear.

The intention of those of us who support the amendment is to make the law clear for everyone’s sake, and, indeed, to back what the Government want and to try to facilitate that. As I understand it, the definitive legal opinion on the matter comes from a judgment of Lord Donaldson, in Re W (A Minor) Medical Treatment 1992. He said:

“No minor of whatever age has power by refusing consent to treatment to override a consent by someone who has parental responsibility for the minor”.

That is pretty clear, no matter how much such a refusal is taken into account in making clinical judgments. Therefore, it needs putting right.

Young people themselves and practitioners in the field need to be clear about their rights in this matter. The Government may feel that they can rely on case law for this, but that is clearly not working out there in the hospitals. They need to do something more to clarify the law as they and we want to see it and to make a clear statement that can be understood by everyone. Accepting the amendment would be that statement. It would also give the young person the protections of the Mental Health Act. I hope that the Minister will find himself in a position to do so.

The noble Baroness, Lady Royall, expressed the generous wish that she had been on the committee. I, too, wish that, as I am sure that, had she been on the committee, she would have agreed, like everyone else, with all its conclusions bar one. I hope that she will agree with the conclusions that are drawn from the amendment. The scrutiny committee was absolutely clear that this was about protection. Our concern was that the law was not clear enough to ensure that 16 and 17 year-olds had the same protection as other groups when subjected to the possibility of compulsory treatment. I hope that the Government will take that on board and agree to go forward towards finding something to meet those concerns.

The argument can be taken yet a step further. The Minister might be amused to know that I am going back to CFS/ME. Quite a lot of young people with CFS/ME are regarded as being mentally ill; they are regarded as being made mentally ill by their parents. Therefore, they are put on the at-risk register, and they are made wards of court. Then, they are forced to undergo psychiatric treatment. Those children can object as much as they like but, when they become a ward, in the face of the solicitor they have no argument.

I do not know whether the Minister feels able to address that argument on this amendment. These children are not mentally ill; they are physically ill. I find it iniquitous that they are treated in the way that they are by some practitioners. It is a few practitioners, but it does a huge amount of harm to the young people, and it is lasting harm. One young man was admitted to the psychiatric unit of Great Ormond Street hospital, and it has taken him five years to speak to strange adults, so disillusioned has he been by the treatment that he received.

It has been an interesting debate. I hope that I can allay the fears expressed by noble Lords. On the question of the law, we first point to the Family Law Reform Act as setting out such persons as are assumed to be capable of consent on their own behalf to any form of treatment. Where they do consent, a person with parental responsibility cannot override it.

I have listened with interest to the comments made about case W. That is an old case; we think that more recent cases demonstrate the trend towards greater autonomy for young people. In view of the comments that I have heard tonight, I undertake to put that together and write to noble Lords, so that they can see how we have reached that view. Section 131(2) of the Mental Health Act builds on what we believe to be the law in relation to the Family Law Reform Act to make it clear that young people of 16 and 17 in addition can agree to being admitted to hospital for treatment and treated informally on their own behalf, regardless of the wishes of the person with parental responsibility.

I also understand that it is important for us to be able to clarify the law if there is confusion among practitioners. The proper place to clarify the law would be through the code of practice. Our policy on the code is towards giving the views of young people greater autonomy. The draft revised code makes it clear that a 16 or 17 year-old should not be treated for mental disorder on the basis of consent from someone with parental responsibility. If they refuse to give consent or are unable to do so, they can be treated under the Mental Health Act. The code also identifies the cases, albeit likely to be rare, in which it may be appropriate to consider using Section 25 of the Children Act. The guidance in the code of practice also goes on to state that the views of a Gillick-competent child under 16 should not be overridden by someone with parental responsibility.

We believe that the issues concerning consent for treatment of under-18s are best dealt with through guidance in the code of practice, where we can go into greater detail in this complex and important area than in legislation. It can also be updated more easily in line with developments in case law and professional practice. From what I have heard this evening, one can see the critical importance of ensuring that professionals are clear on what the law is and what their competence is to make decisions in that context.

There is clearly support for 16 and 17 year-olds capable of expressing their own wishes to have their consent or refusal to consent to treatment and admittance to hospital for mental disorder protected in the Bill. Where they consent to admission and treatment in hospital for mental disorder, their consent should not be overridden by a person with parental responsibility for them. Where they do not consent to admission and treatment in hospital for mental disorder, their lack of consent should not be overridden by a person with parental responsibility for them.

In view of what I have heard tonight, I will see whether the Government should table an amendment in this area. I will look at the issue of case law, in order to update the House on our current view of where the law stands, but I also commend to noble Lords the importance of using the code of practice as probably the most important way of influencing practitioners and informing them of the position with regard to 16 and 17 year-olds.

It has been a helpful debate. I welcome the Minister’s constructive response, and I am glad that he has taken on board the points that noble Lords have made. I look forward to receiving the letter that he has promised about the case law.

I re-emphasise the difficulty that is often faced by parents in this situation. They are put between a rock and a hard place. As the nearest relative, when confronted by a choice between their child being sectioned and giving consent on behalf of the child, they will almost always give consent on behalf of the child. Either way, they are put in an absolutely invidious position for which the child is likely to blame them for the rest of his or her life. I note the Minister’s view that this is code-of-practice territory. I will have a look at that point and at the draft code and see what it says, but perhaps we can reserve the right to come back to this at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

27: After Clause 20 , insert the following new Clause—

“Children and young people

After section 142 of the 1983 Act insert—

“142A Admission to age appropriate setting

In the case of an application for admission for assessment and treatment for a mental disorder, whether voluntary or not, in the case of any child or young person under the age of 18 years, a clinician with specialist training in child or adolescent mental health shall assess the needs of the child or young person and a PCT or equivalent health board shall provide for such services and accommodation as are sufficient for the particular needs of that child or young person.

142B Medical assessment by a CAMHS specialist prior to imposition of compulsion for a child or young person

In the case of a minor under the age of 18, who is admitted for assessment under section 2 or admitted for treatment under section 3, one recommendation as specified in these sections shall, except in an emergency where no child or adolescent mental health specialist is available, be made by a qualified child and adolescent registered medical practitioner.

142C Clinical supervisor

Wherever under any provision of this Act a responsible clinician is to be appointed if the patient is a minor under 18 that clinician shall, except in an emergency where no child and adolescent mental health specialist is available, be a child and adolescent mental health specialist.””

The noble Earl said: I should like to continue with the theme of children and young people by proposing a number of further changes to the 1983 Act. The first one relates to the need to admit children and young people to a setting that is appropriate for their age. This is recommended in the National Service Framework for Children, Young People and Maternity Services. It was endorsed by the joint scrutiny committee on the 2004 Bill and acknowledged by the Department of Health in its response to the Bristol inquiry.

The amendment would mean that an assessment of therapeutic benefit and safety of a young person would have to be carried out, and a decision made as to whether a place on a CAMHS ward or on an adult ward would be most beneficial. The amendment does not seek to demonise adult wards or staff working on adult wards. I understand that there are occasions when it is more appropriate in developmental terms for a young person to be on an adult ward. However, there is extreme concern among service users, carers and professionals that young people inappropriately placed on adult wards have been subject to harassment, abuse and have suffered significant traumatic stress—all of which has affected their ability to engage with services in future. Young people sometimes hide their symptoms because they are frightened that they will be sent back to an adult ward. The trauma is especially great when the child is under 16, which is why I propose that such children must always be admitted to a CAMHS ward. Admission to a CAMHS unit offers many benefits: the wards tend to be smaller, the practitioners have expertise in working with young people and their families, and the young people have access to education facilities.

The next part of the amendment aims to ensure that unless there is an emergency, at least one CAMHS specialist is involved if there is any question of a young person under 18 being detained under the Mental Health Act. This proposal accords with a recommendation by the joint scrutiny committee on the 2004 draft Bill. The reason for it does not, perhaps, need explaining at any length. Children and young people are not the same as adults. The way that they process difficulty and distress is different and therefore they need specialist clinical support and knowledge if their needs are to be met and understood. That means having separate and distinct arrangements whenever assessments have to be carried out.

The final part of the amendment is intended to ensure that the clinical supervisor of a child or young person admitted under compulsion is a CAMHS specialist. This proposal picks up a theme in the National Service Framework for Children, Young People and Maternity Services—standard 9—which states:

“The different range and prevalence of serious disorders in childhood compared with adolescence means that services for these two broad age groups have to cater for a different range of needs, which need to be reflected in the specific skills of the staff working with them”.

Therefore, I feel very strongly that it would be appropriate for compulsory admissions to be subject to the same rigorous specific skills requirement.

A great deal can be done for young people whose illness is diagnosed quickly. Teams working with young people, such as early intervention psychosis teams, with CAMHS staff attached to them, work to try to keep young people integrated into their homes and communities. The whole emphasis is on rehabilitation and recovery, encouraging patients to stay in education or to get a job, rather than the all-too-frequent pattern in adults, where there is a diagnosis of incapacity leading typically to stagnation and inactivity.

Government policy is quite clear that CAMHS specialists work with young people aged 16 to 17, but that is simply not happening in parts of the country. Young people fall through the net with neither CAMHS nor adult mental health services owning them; in other areas there is an equally bad situation where adult services are deemed to be appropriate for 16 and 17 year-olds, when they are simply not appropriate. I hope that the Government will use the opportunity provided by the Bill to put in place some clear statutory requirement to protect children and young people who find themselves subject to the mental health system. I beg to move.

These are important amendments in relation to children and young people and they are what I would describe as “make improvements now” amendments. They are directed not at what the Government have proposed but at improvements that we would like to see now, because this Bill is before us. They are important in particular for young persons of 16 to 17 years of age. As we all know, many mental health problems, such as schizophrenia, occur for the first time often at that age—and it is important that they should be put in the best possible situation at that age.

The motivation for the amendment is that we do not find in the legislation or draft legislation a sufficient differentiation of the care of children and young people from the care of adult patients. It is not at all a theoretical point. There are a good number of young people in adult mental wards. YoungMinds calculates that of almost 1,000 young people admitted to adult wards, the average length of stay was more than a month, and that in the three years to 2001 about 62 per cent of all under-18s admitted under the Mental Health Act went into adult wards.

We do not complain about how adult mental wards are administered. We think that a great deal of good work is done there, but we claim that the cases should be specially assessed and that an age-appropriate setting is found.

I am sure that the Minister is a little fed up with hearing about the Scottish legislation, but he has to; it is part of the lesson that we have to put across in this Chamber. The provision comes under Section 23 of the Mental Health (Care and Treatment) (Scotland) Act where accommodation sufficient for the particular needs of the child or young person is referred to. I am sure that the noble Lord, Lord Carlile, will not wish me to pass over the Joint Committee on the Bill, which recommended that a person of the kind referred to in this amendment should be within the Bill, and, specifically, that the Bill should stipulate that under 18 year-olds should be accommodated in age-appropriate facilities. There you have it.

Finally, I think that the Children’s Commissioner has put an embargo of Tuesday morning on the report he is just about to publish—a huge report—on this specific subject. Of course he must have expected that we would go on with our debate into Tuesday, and he was not far off the mark. But I believe that we are able just to refer to its existence. It is a substantial report. I do not know whether the Minister has read it yet. I have read it. It is an important report, which deals with the appropriateness, or not, of admitting children and young persons to adult wards. It has substantial information from individuals who have given evidence to the Children’s Commissioner. The report will certainly influence the debate, whatever is decided here in the next 10 minutes. I draw the Committee’s attention to it. It goes very strongly along the lines advanced by the noble Earl in this amendment, which I support strongly, and I hope that we can arrive in due course at a satisfactory solution on it.

It is a regrettable fact of the psychiatric provision in this country that mental health services that were formerly designated for adults are regularly employed for the reception of children and adolescents under the age of 18. Given that a number of adult psychiatric in-patient facilities can be fairly dysfunctional places on their own terms, they are unlikely to be suitable places for vulnerable children.

The Mental Health Act Commission has applied its monitoring role in studying this matter in relation to detained patients. I rise to inform the Committee of some of the findings to give an indication of the scale of the problem.

I must preface my remarks with a warning that I can only paint a partial picture: the Mental Health Act Commission is not empowered to collect data or monitor the treatment and care of informal patients; and I note that this amendment seeks, quite understandably, to provide protections to children and adolescents regardless of their legal status in the psychiatric system. I can only give an outline of the scale of the problem in relation to detained patients, and the Committee must be left uninformed of the total numbers of inappropriate admissions of children and adolescents across the psychiatric system as a whole. I would have that remedied for the future, but that is for an amendment later in our Committee’s deliberations.

In the usual course of its visits to hospitals between October 2004 and November 2006, the Mental Health Act Commission encountered 116 adult wards where one or two children under the age of 18 were detained. In all, 132 children were accommodated in such situations. I should highlight that 18 of these wards were psychiatric intensive care units where the most disturbed and dangerous adults are treated.

Counting heads on the Commission’s visits to hospitals cannot provide systematic data on the number of children on adult wards. In an attempt to get such data, the Mental Health Act Commission asked services to notify them of any occasion when a patient under the age of 18 was admitted to an adult ward under the detention powers of the 1983 Act. Between April 2003 and October 2006 we received 1,308 such notifications. That is a rough average of one admission every day over the three and a half year notification period. Furthermore, we are not at all convinced that we were notified of all such admissions under the Act. Voluntary notification exercises are inherently unreliable and, of course, these figures do not include those occasions when other routes—such as informal admission or the powers of the Children Act—were taken to ensure the admission of a minor.

Just over half of these admissions to adult facilities were 17 year-olds, with most of the remainder being 15 or 16. There were rare but extremely concerning examples of younger children being admitted to adult facilities under the powers of the 1983 Act. These involved 22 14 year-olds, three 13 year-olds and two children under the age of 12. The care packages provided to these children and minors was often inadequate, despite the best intentions of staff. Let me provide noble Lords with some examples. While collating these examples, I was extremely alarmed and concerned. If I was a parent of one of these children, I would be expecting not only this House, but the Government to take immediate and urgent action.

When the Mental Health Act commissioners asked ward staff whether there were any plans to transfer the young person or child to more appropriate surroundings within the next seven days, there were no such plans for nearly three-quarters of the children. That is 959 children with little or no prospect of moving from adult psychiatric wards. Only one-third of the children—421 of them—had a responsible medical officer who specialised in child and adolescent psychiatry. Of the 409 girls, more than three-quarters—322 girls—were detained on mixed-sex wards. As a parent, I find this situation completely unacceptable. Nearly one-third—412 children—did not appear to have an identified social worker. One-third—434 children—did not have an identified key worker. One in 10—126 children—did not have an identified primary nurse. It is also notable that half—that is, 648 of these admissions—were classed as emergency admissions, although only a small number—only 17—were admitted under the emergency powers of Section 4 of the Act. One such patient was 10 years old.

In December 2004 the Mental Health Act Commission published a report on 18 months of data collected from April 2002. Noble Lords will recall that I spoke about some of the worrying results from this report on an earlier occasion. I highlighted the very significant over-representation of young people from black and minority ethnic backgrounds among those detained in adult facilities. Over one-quarter—27 per cent—of the young people detained on adult wards were from black and minority ethnic groups. Those of black African or black Caribbean origin appeared to be the most over-represented, with this group alone comprising 13 per cent of the notifications, compared with—according to census data—just 2.7 per cent of the child population in England.

The general level of over-representation of black and minority ethnic children and adolescents detained on adult wards is in stark contrast to their representation among those accessing informal care with specialist in-patient CAMHS units, where they made up only 3 per cent of reported admissions. Very few staff working on adult wards had received any specialist training in working with children or adolescents with mental health needs. On a number of visits staff expressed concerns over their lack of skills and knowledge for working with this client group. In some cases it was reported that they felt they could only offer containment until a more suitable placement became available.

There were often no arrangements for the continuation of young people’s education, even for those aged under 16 and of compulsory school age. Appropriate plans for the continuation of education during their hospital stay were in place for only about 10 per cent of the young patients visited, rising to just over 18 per cent for those under 16. Only one-third had access to a programme of activities appropriate to their age and abilities.

In order to humanise those statistics, let me give your Lordships just a couple of example of patients whom the Mental Health Act Commission has met in the course of its work. Miss A was 16 years old and detained under Section 22 in an adult psychiatric care unit in central England. She had been initially admitted to an acute adult psychiatric ward as an informal patient having been transferred there from the local general hospital following an overdose. While on the acute ward, she was placed under Section 5(2) to prevent her from leaving until she was assessed for detention under Section 2 of the Mental Health Act.

She was then transferred to a mixed-sex adult psychiatric intensive care unit. Although staff had sought a more appropriate placement on an adolescent unit, none was available. Ward staff felt that they were providing merely containment. Although additional staff had been allocated to provide special observation in view of her vulnerability in an adult setting, they acknowledged that her special needs were not being met. Ward staff had not received any recent training in the care of adolescents and they had no access to a specialist child and adolescent psychiatrist for advice and guidance.

Miss A told Mental Health Act commissioners that, although she was generally happy with the care provided by the doctors and nursing staff, she felt frightened by the other patients, whose behaviour she described as scary at times. She was also very unhappy that male staff members were allocated to provide close observation. She found that intimidating, especially as she had recently experienced a serious incident involving sexual assault prior to her admission to hospital. The alleged incident was currently under investigation.

B was a 15 year-old Asian boy detained under Section 3 on an adult psychiatric intensive care unit. Three months before the Mental Health Act Commission met him, he had been transferred there from a nearby adolescent unit after having been assessed as requiring secure care as a result of his absconding, serious self-harm and suicide attempts. Secure care was not available under the local CAMHS service and, although he had been referred to an independent hospital out of the area that would have provided a specialist locked adolescent unit, no bed was available immediately.

Not all of the permanent staff on the ward had been police-checked and there was no access to a copy of the Children Act or the relevant guidance volumes on the ward. When he had been on the local adolescent unit, B had received daily education sessions. Since being transferred to the adult intensive treatment unit, he was being offered only two education sessions a week. Staff who had received no specialist training to work with adolescents were finding it difficult to cater for his needs or provide appropriate activities. They agreed that it was not a suitable environment for a 15 year-old boy for almost four months, but said that there was a serious lack of ITU beds available nationally for adolescents. I have no information on whether there were any cultural, religious, dietary or linguistic issues attended to for that young Asian boy.

I hope that those illustrations of how detained children and adolescents may be treated in adult services will help to emphasise the importance of the matters raised by noble Lords. I trust that the Minister will be persuaded to take urgent action on the matter.

My amendment has been linked to Amendment No. 27. It is intended to ensure that children and young people under 18 receive services that meet their needs. I am obliged to all noble Lords who have spoken so eloquently, laying a foundation of appreciation in this Committee that children under the age of 18 should not be treated as though they were adults. Also listening to the debate is Kathryn Pugh, who comes from YoungMinds. She has been most supportive in drafting the amendment. I am sure that noble Lords would join me in expecting government, practitioners and parents to be united in ensuring that children get the best possible care to meet their needs.

Can we assume that primary care trusts will not hesitate to follow the code of practice and implement the guidance for independent advocacy immediately? National Standards for the Provision of Children’s Advocacy Services was published in 2002, informed by Article 12 of the UN Convention of Human Rights and the Human Rights Act 1998. As a result, we would expect that all young people now had access to the services detailed in this excellent document. Sadly, it is not the case.

As the Committee discussed during the debate on principles, the establishment of guidance is no guarantee that what the Government regard as good practice will take place. We are all aware that financial pressures on national health trusts may prevent them purchasing services such as advocacy that are seen as a luxury rather than a basic right.

We owe it to our young people to afford them independent advocacy. It provides a safeguard against the improper use of powers to detain or to treat them. With an advocate present, a young person can be sure that someone independent of their parents, carers or clinicians will communicate their interests and ensure their right of appeal. We know that in a culturally mixed society not everyone is aware of his or her own rights under the law. In the amendment that clarifies the right of 16 and 17 year-olds to refuse treatment and not have that refusal overridden by their parents, we heard that despite guidance and case law, professionals responsible for treating young people are confused as to who or what should be permitted. How can we then expect a 14, 15, 16 or 17 year-old to understand what treatment under compulsion means for them, and to know their rights?

I illustrate this with the story of a young Asian girl, whom I will call S. She is 17, lives with her parents and was very depressed. She had self-harmed and taken overdoses, and was in regular contact with services. In one of her visits to mental health services, S talked about wanting to die. When asked if she was going to do anything to make this happen, she said she would if she got the opportunity. Due to concerns for her safety, she was admitted to hospital on a voluntary basis. This was a very daunting experience, as previously S had spent little time away from home.

S was admitted to an adult ward and was in a room with more than one adult, where a fellow patient threatened her. Although she found the environment intimidating and wanted to go home, it was recommended that she stay in hospital to be monitored. Staff did not understand the cultural difficulties she had on the ward, nor her difficulties in sharing a room, the inaccessibility of somewhere safe to pray and the lack of understanding of her dietary requirements. She was told that if she tried to leave she would be placed under section. S felt that nobody was explaining what this meant to her and that she continued to be in an unfamiliar environment with no, or little, support. She felt uncomfortable around certain members of staff, one even asking her if she felt it fair to put her parents through this.

A culturally competent advocate could have helped to improve the therapeutic alliance and helped staff to understand the importance of following her religious beliefs and of being in a private room. Her parents themselves would have been reassured to know that S had someone to whom she could relate, who both understood the system and was in her corner. Feeling more in control of the situation may have prevented S from disengaging with services and meant that in the long term she continued to ask for help before she was in crisis.

We have heard from other noble Lords about the over-representation of black and minority-ethnic patients on in-patient wards and under compulsion. I echo the remarks of those who have commented on the fear of many in the black community that reaching out to mental health services will mean being sectioned. I am positive that giving people the right to independent advocacy will go some way towards reassuring young people, their families and communities that their voices will be heard and their rights protected. I hope that this reassurance will help young people to seek help earlier before they reach a crisis, and that it may therefore even help to prevent admission.

It is ironic that the Mental Capacity Act 2005 enshrines a right to advocacy for people lacking capacity through the Independent Mental Capacity Advocacy Service, which is due to be implemented in April 2007. It is unacceptable for some patients who lack capacity to be awarded a statutory right to an advocate, while those who lack capacity and who are detained for their mental disorder do not have a similar statutory right to one. It is even more ironic when we consider that the Adoption and Children Act 2002 gives the right to advocacy to young people who are looked after by the state. Yet we do not guarantee young people with a mental health problem the right to such a service, despite their vulnerability.

The number we are talking about is small; according to the Mental Health Act Commission, it is about 260 young people a year, although we cannot estimate the number of young people who, as in the example I have just given, are threatened with detention and comply through fear. I and many others have welcomed the Government’s excellent policies to improve mental health services for children and young people, and I ask that the Government and this Committee regard the amendment as being within the spirit of the National Service Framework for Children and Every Child Matters and accept it as a logical and necessary addition to the 1983 Act.

On behalf of Members on these Benches, I support both the amendments, which would ensure that a child would be treated in an appropriate place after an appropriate assessment by a suitably qualified person and would have the necessary help to understand his rights and to express his views. This is a very laudable set of objectives and, although it would cost a little money in the short term, it would most certainly save the Government a great deal more money in the long term.

I hope the Minister will note that we are not trying to demonise adult wards, as the noble Earl, Lord Howe, said. Indeed, Amendment No. 27 would allow for 16 and 17 year-olds to be admitted to such a ward if the assessment determined that it would be in their interests and if the patient was happy with that. I must say at this point that references to the child’s best interests seem remarkably absent from the Bill. Perhaps that is because it is really a Home Office Bill and not a Department of Health Bill.

There seems to be nothing in the Bill about the duty of care to underage patients as children first and foremost—individuals who are different from adults in their needs, their level of vulnerability and their response to stressful situations. However, it is not beyond redemption, which we are seeking to achieve through the amendments. It is vital that children are treated in age-appropriate settings, partly because of the quality of treatment they will get there and partly because that treatment and that experience will colour their attitude to treatment later on. If they disengage from the process because of a bad experience when they are young, how will we get them to accept treatment voluntarily when they get older?

However, that is not the only reason. Child protection is a major factor. How can we countenance putting young people in situations where they can be abused, where illegal drugs are often widely and cheaply available on the ward, and where the staff are too busy to watch over them at all times? It is happening all the time. Here are some real examples given to Dr Cathy Street, research consultant to YoungMinds.

A young woman was admitted at the age of 14 to an adolescent unit for self harm and attempted suicide. She was discharged, but continued to self harm, with regular visits to A&E. Eventually, she was placed under section at the age of 15. No bed was available in the adolescent unit, so she was taken to the adult ward, where she was placed on suicide watch. She was promised an advocate but no one came to visit her. She was discharged very suddenly, placed in a cab, and the driver was told to take her to the social services offices. The driver got lost, so the young woman directed him to a youth project she knew. Project workers at the group, who were horrified that she had been discharged so abruptly and so recently from suicide watch, called social services, which placed her with a foster family she had never met. She was finally readmitted to an adolescent unit, where it was recommended that she should receive long-term therapeutic care.

A young man, aged 15, was psychotic. The police were called to help with the admission, but, as no beds were available in a specialist unit, the police offered to keep him in a cell until a bed could be found. Fortunately, his mother refused to let this happen, so the young man was sedated for 24 hours while the arguments about where he should go raged on. He was admitted to the adult ward, which refused to keep him for more than 24 hours. Eventually, the PCT agreed to fund an independent place for six weeks, but no more. When he came home he still needed in-patient treatment, but it took nine months for him to be admitted to an adolescent unit.

My final example is a young man aged 15 who tried to kill himself by jumping in front of a car. He was admitted to A&E for 24 hours while staff looked for a bed, but the only place was on an adult ward, where he was the youngest person by 20 years. He was on the ward for five days until a bed was found. These experiences are not unique.

This is no way to treat young people, and I gather that it is all down to funding. Indeed, it is another example of a postcode lottery, since we know that the south of the country is much better provided with children and adolescent beds than the north. Something must be done to ensure that the number of child and adolescent beds per million of population recommended by the Royal College of Psychiatrists is available in all parts of the country. We also need more effort to provide services in the community to prevent the need for young people going into hospital at all.

We know that the Children’s Commissioner, Sir Albert Aynsley-Green, is very concerned about children going into adult units. He is about to publish a research report on the matter, which I understand makes horrifying reading. I have had time to read only the executive summary so far. There is evidence that children not only feel vulnerable to aggression and sexual harassment in adult wards, but also experience these things not infrequently.

In relation to the skills requirements under Amendment No. 27, why are we lagging behind Scotland, where the Mental Health Act 2003 specifies age-appropriate supervision by CAMHS specialists? Why is the National Service Framework for Children and Young People not being adhered to? Standard 9, paragraph 9.8, states:

“The different range and prevalence of serious disorders in childhood compared with adolescence means that services for these two broad age groups have to cater for a different range of needs, which need to be reflected in the specific skills of the staff working with them”.

That is clear, but it does not always happen.

Finally, Amendment No. 27 requires age-appropriate assessment by a CAMHS specialist, which seems only common sense in the light of what we have just heard. On Amendment No. 41 and advocacy, we are talking about very vulnerable young people who are not in their own homes. Children similar to those in public care in children’s homes or foster settings have a right to a dedicated social worker and someone who acts as an advocate. Why, then, do children in mental health settings not always receive the same right? The number of compulsorily detained children is small and organisations looking into the matter have calculated that the cost of providing this service to them would be less than £100,000 a year. If the service were extended to all children and adolescents in CAMHS units, which is desirable but not covered by this amendment, the cost would still be only about £1 million per year, a very small amount compared to the potential benefit. If the Government believe these figures are incorrect, I hope that the Minister will give us his calculations and tell us his source.

We should not be relying on a child’s parents to express his views and ensure he has all the information he needs to understand what is happening to him. Most parents are not equipped to do this, and what of the child who has no parents, or at least none in a position to help him? These are some of society’s most vulnerable children and we need to ensure that they are treated better.

I have a very brief speech. Throughout the National Health Service there have for many years been problems of accommodation for adolescents. It is difficult to treat adolescents with young children and babies in paediatric wards, and it is equally inappropriate to treat young people in adult wards, as has been said. I want to give noble Lords a few positive examples.

There is a splendid organisation called Body and Soul providing support for people with HIV and AIDS. In its work it has found that adolescents need their own space and help, away from children and adults. A hospice for children in Yorkshire has made a section for adolescents needing hospice care. It was so important for them to have their own accommodation with their age group. In young offender institutions, adolescents are now separated from the over-18s. It is even more important for young, mentally ill adolescents to have their own wards. Many of them have problems associated with puberty. Putting young people in adult wards with mentally ill adult patients could be to put them at risk. With so much emphasis placed these days on health and safety, who, can I ask the Minister, does the risk assessments for these young and vulnerable adults, especially given staff shortages in many hospitals at night? Why should mentally ill young people, who will have more problems than anyone else, not be treated in the same way as other groups such as the ones I have mentioned—and whose treatment I have found to be satisfactory?

I apologise for speaking and thereby lengthening the debate at this stage of the evening, but in my view these amendments are among the most important to this Bill. They are consistent with the views of the joint scrutiny committee. It was our view that it was self-evident, as well as being a matter of evidence, that young people should be in age-appropriate facilities and that they should have doctors who are experienced in treating young people.

I want to reflect for a moment on my very close observations some 10 years ago of a young girl who went into a hospital suffering from serious depression and anorexia. On the advice of a reputable consultant—this was not in the countryside, but in London—she was sent to an adult unit. There she was treated heavily with drugs. After about four months, and as a result of parental demands made by parents who in the early stages were completely ignorant of the mental health sector, she was moved in a stupefied state to the adolescent unit at the Bethlem hospital, part of the Maudsley hospital. Some time later, the consultant who had professed expertise in treating that girl, though not a specialist CAMHS doctor, was suspended by the General Medical Council for sexual impropriety with a young female adult patient. The life of that girl was saved in the CAMHS unit at the Bethlem hospital because she was treated in an age-appropriate environment by highly specialist consultants with enormous skills. She emerged from that unit to receive outpatient treatment, and was given the early stages of that by a CAMHS specialist consultant. Unfortunately, he too was disciplined at a later stage by the General Medical Council for inappropriate sexual conduct—in this case, toward young female patients.

I can, if necessary, provide every detail of that story, having observed it at the closest quarters possible. It shows how dangerous it can be for anything other than the closest scrutiny—at an age-appropriate and place-appropriate level—to be put upon every single case involving a child. In many cases, teenagers who face the kind of situation I described are mature in some ways, but extremely immature in others. It emphasises the importance of them having age-appropriate treatment in all respects. The noble Lord, Lord Patel of Bradford, gave us a helpful catalogue in summary form—I am sure that it could have lasted for volumes, or hours—of other cases bearing out the example that I observed at such close quarters and was describing.

I would be completely content if, 10 years after the events I describe, having made my observations, I could sense any comfort or feel that things have improved as a result of what people who scrutinise these matters daily—like the noble Lord, Lord Patel, or Sir Albert Aynsley-Green, the Children’s Commissioner—may say. I see absolutely no evidence of that improvement.

If we are serious as legislators in the lip-service that we give to having the interests of adolescent, mentally ill children at heart then we have to do something about it. The one thing we could do is to place a statutory obligation on the services—not just targets, but statutory obligations—about dealing with children in settings and with medical care that are both age-appropriate. Of course, there will be emergency circumstances. The joint scrutiny committee dealt clearly with that by providing a solution to emergency circumstances. For example, if a child in rural mid-Wales becomes acutely mentally ill, it may take a day or two to put them in a suitable hospital environment. But surely, that it should take more than a day or two could never be justified.

I shall be extremely disappointed if we have nothing more than an anodyne response on this issue. The power of this debate has been strong, and there has been unanimity around the Chamber, which, as I said, confirmed that of the joint scrutiny committee. I hope that we shall hear a positive response.

Well, I hope that this will not be an anodyne response. I listened to noble Lords as they graphically described some of the issues that face young people, and I endorse the comments about the problem of young people being inappropriately placed on adult wards. There is no question that, for many years, this has represented a major challenge for mental health services. It will carry on being a challenge, although I am disappointed that most noble Lords did not seek to reflect on some of the extra investment and improvements that were made to these services in recent years.

I will come on to the actions that the Government have taken to improve services, given how noble Lords have described the problems. But the basic argument is that this is not the only time that your Lordships have sought to propose amendments that essentially talk about services. We have a real problem with amendments to the Bill that seek to specify the services to be given. I do not believe that is consistent with health service legislation.

There are many practical issues that would follow if one singled out a particular service, put it in the Bill and said, “That must be provided”, alongside all the other demands that are made on NHS services. Let us go through all the Oral Questions that have been tabled, and that are likely to be tabled over the next three months. There is a flavour about all of them; they all tend to say that the Government should do more to provide more services in this or that area. Of course, we seek to improve health services all the time, but there is a genuine issue about enshrining in legislation the provision of certain services for certain people in comparison with the general duty—

I do not begin to understand the point the Minister is making. If what he is saying is right, why have the Children Act? Why have services for any group? Why have a Mental Health Act, for that matter? Is he really saying that because one cannot be completely even-handed with all interest groups, one should simply write them all off?

That is not what I am saying at all. Essentially, the Mental Health Act is concerned, as it ought to be, with the legal processes around mental health, mental disorder, compulsion and treatment. It is much more difficult to move on from there to specifying services to be provided to a certain group. That is inconsistent with the way we develop legislation in relation to the health service and to the responsibilities of the National Health Service to provide certain services. Noble Lords can shake their heads, but simply specifying that in this case there is an absolute statutory provision that must be provided by the NHS, come hither nor tither, has clear practical consequences. That is why we believe that the approach of developing and improving services, using the code of practice to influence the way those services are developed, has to be the right way through.

I assure noble Lords that the further improvement of CAMH services is one of our priorities. It features in the public service agreement for the Department of Health. We are working towards the achievement of comprehensive CAMHS in every area of the country by the end of 2006, and wish to see it maintained thereafter. CAMHS regional development workers continue to assess both the NHS and local authorities in meeting those challenges. The commitment to improve CAMHS is backed up by significant additional funding—approximately £300 million in the years 2003-04 to 2005-06, payable to local authorities in the form of a CAMHS grant, and direct to primary care trusts.

We have made further additional funds available: £134 million in 2006-07 to the NHS and local authorities for the development of CAMHS. The children’s national service framework, the CAMHS standard, gives guidance on what is to be expected in a comprehensive CAMH service. It states:

“All children and young people, from birth to their eighteenth birthday, who have mental health problems and disorders have access to timely, integrated, high quality, multi-disciplinary mental health services to ensure effective assessment, treatment and support, for them”,

their parents or carers, and other family members. I could go on.

Considerable progress has already been made in bringing CAMHS out from under the shadow of adult mental health. CAMHS now has a profile and a priority of its own. Benchmarking surveys of provision have been completed. There is a strong feeling that central investment has led to a major change on the ground, facilitating a significant increase in multi-disciplinary and joint working across professions. My understanding, from a CAMHS mapping exercise, is that between October 2005 and February 2006 the number of CAMHS teams increased by 16 per cent over 2003, staff by 11 per cent compared with 2004 and new cases seen increased by 12 per cent over 2004.

The amendment seeks to enshrine what is already good practice. We know it is not perfect. We know there is a long way to go, but improvements are taking place and will continue to take place. Of course, we want to eliminate the use of adult psychiatric wards for adolescents, except where more mature, independent adolescents prefer to be admitted to a ward specialising in treating young adults. That was communicated to the service in a DH/DfES report. We began collecting detailed information about the use of adult psychiatric wards for children and adolescents in April 2005 to allow performance management of that aspect of the service. The draft revised code of practice states that where possible children and young people admitted to hospital should be accommodated with others of their own age group in children’s wards or adolescent units, separate from adults, and with access to CAMHS. That is an issue that should be tackled through guidance and monitoring, rather than through legislation.

As I have said, there is much more to do, but at least we are now building on a foundation of concerted improvements and investments that have taken place in the past three years. I sympathise with all the points made about defects in the current service, but I am absolutely convinced that the way forward is to build on current good practice through the normal processes of the NHS and local government.

I turn briefly to the comments of my noble friend Lady Howells on Amendment No. 41. She certainly made a powerful case. We are considering how we can make advocacy more widely available. The draft code has much to offer in that area. I can assure my noble friend that I am giving this matter every consideration, but I suggest that we might return to the subject when we debate Amendments Nos. 38 and 39.

The length of this debate has reflected the undoubted strength of feeling that exists on what is an extremely important set of issues. I am grateful to all noble Lords who have taken part in it. We have heard some extremely powerful contributions.

In view of the hour, I shall not say much. I was disappointed with the Minister’s reply. He balked at the idea of placing a requirement for particular services on the face of the Bill and said that in his view that was not appropriate. It is as if children do not deserve special protection in a service which is not always assiduous in applying the safeguards that children are entitled to expect from it. We can have all the national service frameworks and codes of practice and guidance to be imagined but the fact is that these are not delivering. We will see more on this theme tomorrow in the report from the Children’s Commissioner, which I think is strictly embargoed until tomorrow morning although a number of us have seen advance copies.

I found the story recounted by the noble Lord, Lord Carlile, particularly sobering. It called to mind the very simple point which I do not think has been mentioned so far in the debate but it is a basic one; namely, that if a child is admitted to a CAMHS ward, there is much less chance of that young person sharing a ward with a detained paedophile—we hear all too often of that kind of unpalatable incident.

I feel this is an issue to which we may very well need to return at a later stage but for now I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at 11.11 pm.