My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved accordingly, and, on Question, Motion agreed to.
House in Committee accordingly.
[The LORD SPEAKER in the Chair.]
28: After Clause 20, insert the following new Clause—
“CHAPTER 2B Criminal justice system amendments Court mental health report for those remanded on bail
Before section 35 (remand to hospital for report on accused’s mental condition) of the 1983 Act, insert—
“34A Remand on bail for a mental health report
(1) In relation to the Crown Court, this section applies to a person who—
(a) has been sent for trial before the court for an offence punishable with imprisonment and has not yet been sentenced or otherwise dealt with for it (unless he has been convicted of the offence and the sentence is fixed by law), (b) has been committed to the court to be sentenced for such an offence and has not yet been sectioned or otherwise dealt with for it, or (c) has been committed to the court under section 43 and has not yet been dealt with under that section. (2) In relation to a magistrates’ court, this section applies to a person who has appeared before the court charged with an offence punishable on summary conviction with imprisonment and has not yet been sentenced or otherwise dealt with for it.
(3) Subsections (4) and (5) apply if the court—
(a) remands on bail a person to whom this section applies, and (b) is satisfied on the evidence of a registered medical practitioner that there is reason to suspect that the person is suffering from mental disorder. (4) The court may require the appropriate authority to arrange for an approved clinician to prepare a report on—
(a) the person’s mental condition, or (b) the appropriate medical treatment for that condition, (or both) in order to assist the court in dealing with the person for the offence.
(5) The court may specify any particular matters which are to be included in the report (including an assessment of the risk posed by the person to members of the public).””
The noble Lord said: With Amendment No. 28, which stands in my name and that of the noble Earl, Lord Howe, we are debating Amendment No. 29.
I am grateful to the noble Lord. I shall speak only to Amendment No. 28.
Amendment No. 28 would provide for better case management in court when there are issues about the mental health of those who are remanded on bail. If the amendment—or something very close to it—is adopted, it should provide for better and more reliable results, and more profound assessments of mental health in court.
It is very common for psychiatric reports to be prepared for a court when somebody is awaiting sentence. That is usually done on the application of the defence. Perhaps the Minister should know that there are sometimes funding difficulties in obtaining medical reports in certain cases. It is often difficult for solicitors to obtain prior authority for the funding of such reports, and sometimes they have to take the risk, albeit on the advice of counsel, that such reports should be obtained. They are not always paid for and sometimes the solicitors have to carry the expense.
The amendment would enable the judge to decide whether, in his or her opinion, there is a requirement for a medical report, particularly dealing with the kinds of issues with which the Bill and the Mental Health Act 1983 are concerned. Proposed new subsection (5) is of especial potential assistance. It would permit the court to specify any matters to be included in the report and, in particular, an assessment of the risk posed by the defendant to members of the public.
The Committee will be aware that the Government have introduced a new form of sentence, the IPP—imprisonment for public protection. This is an indeterminate sentence, which occasionally has given rise to press controversy because, although the IPP is passed, the judge is in effect required to specify the minimum period which he or she thinks the defendant should serve. When passing an IPP, the judge is specifically required to assess the risk or dangerousness posed by the defendant. Giving the court the statutory power to specify particular matters to be included in the report would, in my view, be of especial assistance in dealing with IPPs.
There is also the issue of the difference between defendants who are remanded in custody for mental health reports under Section 35 of the 1983 Act and defendants who are remanded on bail. This provision would place people who are remanded on bail in an equivalent position to those who are remanded in custody. It would enable the court to obtain exactly the kind of assessment in relation to a person on bail that it would obtain if that person were remanded in custody.
A realistic assessment of people while on bail may be easier to carry out when they are in their normal residential conditions—perhaps at home with a caring family—than if they have to be remanded in custody, which can be frightening and disorientating and is not always necessary for the person concerned. In addition, when there are remands in custody for reports, there are sometimes substantial delays, which cause real frustration to judges. Some of that frustration would be alleviated if defendants were remanded on bail for this purpose.
I should perhaps declare the interest of being a Crown Court recorder and having many friends, associates and colleagues—some of them falling into all three categories—who are judges. I beg to move.
I support the noble Lord, Lord Carlile, on this amendment. One thing to which he did not refer but which I think is worth mentioning is that the provision in the amendment was included in the 2002 and 2004 draft Mental Health Bills, so I very much hope that he is pushing at an open door here. I shall add just a couple of remarks.
There is a strong belief within the Mental Health Alliance that this additional remand provision may help to reduce the number of remands in custody by the courts. That was implicit in everything that the noble Lord said. At the moment, a judge’s only choice under the 1983 Act is between remanding the person in custody or in hospital, but the judge’s ability to remand the person to hospital may be limited due to a lack of available hospital beds. Research also suggests that there is a culture of resistance towards accepting patients via the criminal justice system, partly because of the perception that such patients tend to be “more difficult” than others. So this amendment will help to provide the courts with an alternative and less restrictive course of action when dealing with people with mental health problems.
There is little to add to the compelling arguments made by the noble Lord, Lord Carlile, and the noble Earl, Lord Howe, so I shall be brief.
As I am chairman of the Mental Health Act Commission, the body tasked with monitoring the 1983 Act on behalf of the Secretary of State, it may be helpful if I make some observations. While many aspects of the 2004 Mental Health Bill will not be missed, this one would be. As we have heard, the amendment would reintroduce what was Clause 86 of the 2004 Bill as an amendment to the 1983 Act. The Government clearly thought this measure worth while and included it in both the 2002 and 2004 Bills. I hope that they will accept this call to pick it up again now.
In recent years, there has been something of a decline in the number of patients remanded to hospital for assessment under existing powers—under Section 35 of the 1983 Act. Official statistics from the Department of Health over the past decade show that the annual number of such remands more than halved in 2004 and 2005. Only 118 such hospital orders were made by the courts. By contrast, the remand population in prison continues to be more than 10,000 people. Among that population there is a high incidence of mental disorder. For every one person given a remand to psychiatric hospital directly from the courts, at least four people are transferred as remand prisoners, incarceration having been found unsuitable because of their mental condition.
Of transferred remand prisoners, as with remand prisoners generally, it is not always the case that they are destined for custodial disposal, even to hospital. Although statistics do not tell us what happens to these patients, we can see that, once they have their day in court, something like one quarter of remand prisoners who are transferred to hospital under the Act’s powers end up with some form of community disposal. In such a context, I am sure that the Minister will agree that all measures that might encourage the courts to avail themselves of the least restrictive option consonant with justice and public safety ought to be adopted. It would be helpful for the courts to survey the mental health legislation and see, among the options for mentally disordered offenders or accused persons, an option to remand on bail under the Mental Health Act 1983.
I have always been conscious of the difficulties that the criminal justice system faces in relation to people with mental incapacity and disorder. This seems a practical suggestion, and it is interesting that it appears to have been included in the two draft Bills already mentioned. I was wondering why the Government have dropped it from this measure.
This has been a short introduction to the next group. Clearly there are important issues in relation to the mental health of people who fall within the criminal justice system. It is important to deal with people in the most effective way possible, including what happens in court and the relationship between prisoners and the mental health service. We shall debate some of those wider issues in the next group.
Members of the Committee have commented that the amendment comes from the original 2004 Bill, and the noble and learned Lord asked why that provision is not in this Bill. The 2004 draft Bill contained a comprehensive chapter consolidating court powers to remand. This is but one aspect of that consolidating chapter. The Government took the decision in the light of the extraordinary public debate and the work done by the scrutiny committee, so ably led by the noble Lord, Lord Carlile, that we would not bring forward a comprehensive Bill, as proposed, but would focus on a number of issues amending the 1983 Act. It is worth saying that the 2004 Bill exercised many people’s minds, but one of the messages that came from stakeholders was concern about its length and complexity. We ultimately decided to introduce a much shorter Bill, which has inevitably meant that some desirable aspects of the original Bill—although, as the noble Lord, Lord Patel, said, not every aspect commended itself to noble Lords—are not in this Bill. I know that noble Lords have cherry picked some amendments from the 2004 draft Bill, but that is essentially why this provision does not appear.
There are two issues: first, what the law currently allows; and, secondly, what can be done to improve good practice. We have heard of instances where the system is not working and falls down, and there are clearly lessons to be learnt on how to improve it. The noble Lord referred to better case management, which seems an excellent way to describe it. As so often in mental health services, however, the solution is to improve management: to ensure that things are better organised and resources better deployed.
The amendment would make explicit provision for the courts to require a medical report when remanding a defendant on bail. It would apply where the court had medical evidence suggesting a defendant was mentally disordered. This is unnecessary because the court is already required to take account of a defendant’s mental state before sentencing, under Section 157 of the Criminal Justice Act 2003. It will often wish to order the defendant’s admission to hospital to ensure that a report on their condition can be completed. Sometimes a court will be satisfied that a report can be effectively prepared with the defendant simply remanded on bail. That can already be done. Under the Bail Act 1976, a court may remand a defendant on bail and require his co-operation with any inquiry intended to inform the trial process. Courts do that, on occasion, when they need to obtain medical reports.
The combined effect of the Bail Act and the 1983 Act is that courts have a wide range of powers to obtain medical reports on defendants, either following admission to hospital or on bail. There is also a problem in singling out this provision from the 2004 draft Bill, and confusion as to why that power would be moved from the Bail Act when we are not otherwise amending court powers to remand.
I was interested in the views of the noble Lord, Lord Carlile, on how the system operates and case management. I am certainly prepared to look at this matter, not so much in terms of legislation but to see what can be done to improve the situation, if the noble Lord would care to communicate with me further.
I am astonished and wretchedly depressed by the Minister’s answer. As the noble Earl, Lord Howe, pointed out, legislation has twice been drafted including a provision of this kind.
I do not see that a meeting with the Minister will ram this point home any further, but the amendment was introduced because it is clear that case management can be achieved only if the toolkit given to the judge contains the requisite tools. The Government are effectively saying precisely what judges find unattractive: fiddle your way around the edges of various provisions such as the Bail Act, and you may be able to find something into which we can fit a direction for a medical report of roughly this kind to be provided. That is not a good case management tool; it is like asking one to put in a screw with one’s teeth.
I simply do not understand why the Government are so reluctant to adopt a simple measure that they have twice thought necessary. The whole point, which I tried to point out but which the Minister did not answer, is that, because of new sentencing provisions, issues of risk and dangerousness are now at the top of the agenda in a huge number of cases in which they never featured before. This amendment—probably unchanged, as it appears to me to be very full—would enable the judge, without fiddling around the corners of the Bail Act, to ensure that such reports as were necessary could be made available.
I appeal to the Minister—and I welcome his willingness to take another look at this—to examine the issue again, because it seems to me and to others who have been dealing with this point, and indeed to the Joint Committee, that it cannot be dealt with without legislation. So with a sense of frustration that I had hoped to avoid so early in the afternoon as this, and with the fervent hope that the Minister will have another look at the matter, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
29: After Clause 20 , insert the following new Clause—
“Resolving disputes as to receiving hospitals
(1) The 1983 Act is amended as follows.
(2) In section 35 (remand to hospital for report on accused’s mental condition), after subsection (4), insert—
“(4A) Where a court has remanded an accused person under this section and hospital trusts cannot agree to which hospital a person should be sent, the Secretary of State shall resolve the dispute.”
(3) In section 36 (remand of accused person to hospital for treatment), after subsection (3), insert—
“(3A) Where a court has remanded an accused person under this section and hospital trusts cannot agree to which hospital a person should be sent, the Secretary of State shall resolve the dispute.””
The noble Lord said: This amendment, with which we are considering Amendment No. 30—and I have got that right this time—deals with common situations that arise in courts. It is a very common experience, and one that causes massive frustration and anger to judges, that disputes can arise as to which hospital an offender or person held on remand should be sent. Typically, as the committee commented at paragraph 263 about whether medium or maximum security is required, if the parties cannot reach agreement, in particular if the medical people involved and the hospitals cannot reach agreement, there is currently no means of resolving the matter.
In the era when the celebrated Crown Court judge Sir Robin David QC was the senior judge on the Cheshire part of the Wales and Chester circuit of blessed memory, of which my noble friend Lord Hooson used to be a very distinguished leader, that judge used to refuse time and time again to pass sentence on a person appearing before him because he demanded that someone should decide who was going to provide the medical report. But sometimes Sir Robin and other judges—and I cite him only as a very distinguished example—used to be driven into the situation in which they were forced to make what they regarded as an inappropriate disposal, particularly by sentencing someone to imprisonment.
The Joint Committee recommended that where a court wishes to send an offender or person on remand with a mental disorder to a hospital and hospital trusts cannot agree to which hospital the person should be sent, the Bill should contain the sort of statutory duty that Amendment No. 29 provides. This, therefore, is another case management issue. It is one in which the system is broke, it needs fixing and it is a simple measure to fix it. I hope, though I am beginning to doubt it, that there may be a chink of light shown in the door when the Minister comes to reply.
Perhaps I may say a word about Amendment No. 30, although I am sure that the noble Earl, Lord Howe, will speak to that too. The 2004 draft Bill considered by the committee had as Clause 137 a clause that broadly replicated an existing provision—Section 47 of the Mental Health Act 1983. It is a well known provision that allows the Home Secretary to make a direction to transfer a prisoner or person on remand with a mental disorder to hospital for treatment. It is exercised too rarely in the judgment of people like me who visit prisons from time to time and become aware of the number of people in prison who might well justify such a transfer, but it is a very important power. The person concerned has to meet a number of conditions and the Secretary of State, who is not a medical practitioner generally, has to be of the opinion that it is in the public interest to make such a direction. The aim of this exercise is to ensure that a person who meets the relevant medical conditions should be transferred to hospital and that that transfer should be a duty on the Home Secretary.
When I have discussed the matter with various people and stakeholders, the issue of resources has always arisen. I suspect that the provision is probably resource-neutral. The cost of keeping a mentally disordered person in prison is extremely high and is usually disruptive to the prison concerned because it involves moving staff away from their normal duties to deal with the prisoner. Hospitals are obviously more used to dealing with people with mental disorders of the general nature under discussion. I believe that the worst one could say about resources is that moving these people to hospitals, though it might require some shift of resources, would be resource-neutral. I beg to move.
My name is attached to Amendments Nos. 29 and 30 and I associate myself fully with the remarks of the noble Lord, Lord Carlile. I want to speak in particular to Amendment No. 30. It reflects the widely held concern that prisoners with mental health problems are not receiving the specialist treatment that they need. On the Government’s own figures, quoted last year by the Home Office Minister Fiona Mactaggart, 90 per cent of prisoners have at least one mental health disorder, including personality disorder, psychosis and neurosis. Most have common mental health problems such as depression and anxiety. A smaller proportion—although much bigger than average—have more severe problems such as schizophrenia or a personality disorder. Many have a combination of things wrong with them.
Over many years, there has been a consistent policy of diverting mentally disordered offenders from prison to hospital. Despite that policy, we are still seeing persistently high numbers of offenders languishing in the prison system with their mental health needs unmet. The annual report of the Chief Inspector of Prisons in 2003 estimated that 41 per cent of prisoners in healthcare centres should have been in secure NHS accommodation. In 2004, it was discovered that at any one time at least 40 prisoners assessed as needing a transfer to hospital had been waiting more than three months for it to take place.
There is a basic problem. The ethos and culture of prisons are not about health and therapy; they are primarily about containment. In many prisons, although not all, healthcare is not top of the list or anywhere near it. The bottom line is that prisons are not the place for people with mental health problems because they are unable to provide appropriate care. That cannot be right. Surely we believe that everyone in this country with a mental health problem, wherever they are—whether they are in the community or in the criminal justice system—deserves the same standard and quality of care.
Let us imagine a prisoner suffering from a mental illness that is sufficiently serious to warrant a transfer to hospital. Under the 1983 Act the decision to transfer a patient lies with the Home Secretary. Section 47 states that the Home Secretary,
“may, if he is of the opinion having regard to the public interest and all the circumstances that it is expedient to do so, by warrant direct that that person be”
transferred to a specified hospital. The problem with this provision is that it is very broadly worded. The courts have found that the Secretary of State is never obliged to act, even if he thinks that the necessary preconditions have been fulfilled.
The fact is that Section 47 has not proved an effective mechanism for transferring prisoners with mental health problems to hospital for specialist care. It needs amending to something much tighter if the difficulties to which I have referred are to be overcome. So the amendment is proposing that where two responsible clinicians agree that a transfer to hospital is needed, the Home Secretary should be under a duty to order the patient’s transfer. That was in fact a recommendation of the joint scrutiny committee chaired by the noble Lord.
Up to now the Government have opposed the reform on the grounds that it would require the Home Secretary to direct a transfer irrespective of the merits of the individual case or the public interest. I am sorry that they take that view. I see in that argument the signs of exactly the problem to which I referred a minute ago: that where we have an administrative arm of the state—in this case the Home Office mental health unit, the main focus of which is on public protection rather than clinical matters—the whole thing becomes an exercise in how to maintain security and we get, typically, security overkill. The inevitable result is long delay, and, alongside that, the local PCT has to be strongly persuaded that it wants to spend its money on what it sees as an inappropriate admission. I suspect that the Minister has a note in his brief urging him to resist the amendment. I simply ask that he take a fresh look at it in the light of the problems that I have been talking about; not the least of which is that the law as we currently have it is letting down large numbers of individuals with sometimes acute and serious mental health needs.
My Lords, I speak to Amendment No. 29 and shall be extremely brief. Home Office circular 66/90 exhibits misplaced optimism in stating:
“there is no longer any scope for disputes between Health Authorities as to responsibility”
for providing a bed for remanded patients. There is indeed scope for disputes, and we are informed that they are frustrating the smooth working of the Act as a diversionary mechanism for mentally disordered offenders. To set a precedent in other legislation for the Secretary of State to arbitrate or, rather, rule over disputes between authorities about responsibility for individuals, the Government should take such powers here and put an end to such disputes. I support the amendment wholeheartedly.
My Lords, this interesting debate has been short but extremely important. I do not underestimate the challenges with the current system nor the challenges that will be faced in the future. My dividing line with the noble Earl and the noble Lord is that many of the problems they have identified are problems of case management and practice, as the noble Lord suggested. A number of such amendments are seeking to include in the Bill issues that come down to effective management and provision of services at local level. I also believe that it is impractical to take away the Secretary of State’s discretion, as is proposed, for example, in Amendment No. 30. The Secretary of State has to have discretion to consider all the matters involved, including those raised by the noble Earl, as well as the question of what facilities are available.
I believe that finding the right hospital placement, which is extremely important, depends on good practice and local arrangements. I am doubtful about whether it would be wise to establish a mechanism whereby central government through the Secretary of State intervened in those decisions. Of course I understand that there are frustrations in the current system, but I say to noble Lords—and it is disappointing that this has not been remarked on—that there have been and are taking place considerable improvements in the health services provided to prisoners and the facilities for patients who are so transferred. The Government are working very hard with local health service commissioners and providers to ensure that the right facilities are available. There has been a significant increase in the availability of medium secure beds, from 2,380 in 2001 to 3,330 last year. We hope that that will ensure that beds can be found more easily for remand prisoners who are likely to need secure beds.
I understand that there will be situations where there may be discussions and disagreements about whether a named hospital could provide the right level of security as well as the right treatment. I say in defence of those hospitals that they have to resist taking responsibility for patients for whom they do not believe they have a safe and appropriate service. But in the end, this matter has to be resolved through discussion at a local level.
I invite the noble Lord to consider that if, because of the direction power he wishes to give the Secretary of State, the risk is that in these difficult situations it is possible that local health services will seek not to resolve issues as they do now but refer more and more decisions up to the Secretary of State, that would be very unsatisfactory. It is much better to engage with local health service providers, encourage the continued development of services that we are seeing and do everything we can to make sure there is the closest possible co-operation between the courts and the health service. I do not think that relying on a direction power of the Secretary of State is really a sensible way to resolve the problem.
Amendment No. 30 is concerned with the treatment of offenders who have been sentenced to prison and then need to be transferred to hospital for specialist treatment. The noble Earl, Lord Howe, referred to Home Office figures showing that 90 per cent of people have a history of mental health and/or substance misuse problems. That is a huge challenge for the Prison Service and the health service. The Government have sought to meet that challenge by improving the state of the health services available to prisoners and the involvement of the health service in prison health services. The more we can do for prisoners’ health within prison, the better the outcome will be when they leave prison, and problems can be dealt with much more quickly than has previously been the case.
We have set up 102 mental health inreach teams in prisons. This year, for the first time, all prisons should have access to these services. There are 360 more whole-time equivalent staff employed on mental health inreach provision, exceeding the NHS planned commitment for 300 in post by the end of 2004. Money has been spent on investing over three years on mental health awareness training for prison officers. We are making nearly £20 million a year available for mental health inreach services.
People who are mentally ill and too disturbed to remain in prison should ordinarily be transferred to hospital as soon as possible. Once a prison has notified the Home Secretary that a prisoner requires treatment in a mental hospital in which he may be detained, the Home Secretary is under a duty expeditiously to take steps to obtain medical advice and, if that advice supports transfer, to take reasonable steps to effect it. But he would not be required to act against evidence that no appropriate hospital place was available or that public safety or public confidence would be put at risk. That perfectly sensible, reasonable discretion has to be given to the Home Secretary.
The role of medical practitioners, of course, is fundamental to determining the suitability of a prisoner for transfer to hospital, but the amendment would give any qualified medical practitioners the final say in directing the transfer of prisoners. That would not be sensible in the best interests of public protection and potential patients, or in the allocation of NHS resources. Surely it would be nonsensical if a doctor specified a hospital that does not have the capacity to receive the patient or was unable to do so without endangering other patients.
This is, of course, a challenge. We are doing better and we will continue to improve in the future. But this situation cannot be resolved by the waving of a magic wand. The acceptance of a new clause will not deal with these problems overnight.
I am grateful to the Minister for his customarily courteous and full reply to the amendments. As regards his reply to Amendment No. 30, I think the Government are ducking an issue which has faced us for many years. Our already overstuffed prisons are going to contain a higher and higher proportion of people who are mentally ill and we face the prospect that, within a few years, we will be using prisons as a surrogate for psychiatric hospitals. That position is not acceptable to me and my noble friends and, in my view, it ought not to be acceptable to the Government.
I certainly accept that progress has been made, the most obvious being the transfer of responsibility for health in prisons to the National Health Service. But that has not produced a proportionate result in people who are mentally ill being transferred out of prison into mental health establishments. That is the issue I was addressing earlier and which leads me to the view that prisons will soon be a surrogate for psychiatric hospitals.
In relation to Clause 29, I say, with great respect, that the Minister’s last point was a false one. He is suggesting that if the Government were to accept the amendment, mental health trusts would go running to the Government and effectively pass the responsibility for decision-making to them. That misses the point of the amendment, which is designed to avoid a real situation that—despite whatever improvements there have been—arises in Crown Courts up and down England and Wales on a regular basis, certainly on a weekly basis, possibly on a daily basis.
One of the aims of the amendment is to ensure that mental health trusts would understand clearly that they have a duty to respond to sound case management by judges. On the whole, judges exercise rational decisions about how to progress cases. If a judge requires a particular form of report relating to the mental condition of someone who is appearing before him but finds that that intention is frustrated by no hospital being made available to deal with that intention, then nothing less than compulsion on the National Health Service to answer the judge’s questions is satisfactory. It would make for far better case management.
I hope I can explain a little more why I thought it might lead to a perverse consequence. I would have thought the temptation for the courts would be to seek intervention from the Secretary of State on a large number of cases. The impact of that would be that the Secretary of State would in many cases be directing issues that, in the end, have to be resolved at a local level. I would be concerned about doing anything that took away the actual responsibility of the local mental health services to resolve those issues.
The noble Lord really has missed the point. The idea that judges would expect any response from a request for intervention from any Secretary of State is, frankly, ridiculous. Judges know perfectly well that if they ask that sort of question, they are likely to receive nothing for a very long time.
The aim of this exercise is that when a judge sees a potential Mental Health Act disposal but is frustrated by services to the extent that no one is prepared to provide the facilities for that disposal, it should be compulsory. I would have thought that was a simple and straightforward point. It is designed to meet what is now called the “overriding objective” in all criminal cases that there should be a just disposal of the case.
I will withdraw the amendment, but in a sense of frustration, and in the hope that the Minister will look at this as a practical and simple question that could be answered without introducing that great swathe of changes to the law in the 2004 Bill in relation to the criminal justice system. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 30 not moved.]
31: After Clause 20, insert the following new Clause—
“Warrant to search for and remove patients
In section 135 of the 1983 Act for subsection (1)(a) and (b) substitute—
“(a) may be in need of care or treatment for his mental disorder and is living in any place within the jurisdiction of the justice, (b) access to that place is necessary for the purpose of establishing whether or not he is in need of such care or treatment; and (c) it has not been possible to gain such access without a warrant”.”
The noble Earl said: Amendment No. 31 takes us into some outdated and antique corners of the law. Sometimes it is necessary for the police to obtain a warrant in order to gain access to someone who is believed to be suffering from a mental disorder and to be in need of care and treatment. Section 135 of the 1983 Act is intended to deal with that situation. However, it is quite obvious when you read the first subsection of it that it comes from a bygone age. It is based on the equivalent provisions in the Lunacy Act 1890 and the Mental Deficiency Act 1913, and neither its language nor its criteria reflect the world we live in today. The amendment would remove some pretty stigmatising and inappropriate language and bring the criteria in line with the rest of the Act. It would also make it clear that the provision should be invoked only when attempts to obtain access without a warrant, using non-forcible means, have failed.
Non-forcible entry is the subject of Amendment No. 34, which is grouped here. It seeks to provide a right of non-forcible entry into private premises for an approved mental health worker, doctor, police officer and ambulance personnel where this is necessary in order to effect an assessment for possible compulsory action under the Act.
I believe that the noble Baroness, Lady Barker, will be speaking in greater detail about the amendment. I simply record my full support for it. I beg to move.
I endorse the comments made by the noble Earl, Lord Howe. As I understand it, the only way you can operate Section 135 on the ground is if the magistrates are willing to bend the law. I am sure the Minister would not wish to continue to put magistrates in that position. On that basis, I strongly support this fairly technical amendment.
I want to clarify the purpose of Amendment No. 31. As the noble Earl, Lord Howe, said, it concerns giving ASWs, AMHPs, police officers and ambulance crews vital access to carry out assessments. It is assumed that Section 115 of the 1983 Act gives that right, but that section applies only to the inspection of premises in which a person who is already known to be mentally disordered is living. In addition, in recent years it has become obvious that police forces are rather uncertain about their rights of entry into private premises without a warrant when they are requested to accompany an ASW. The comments of the noble Baroness, Lady Meacher, reflected that.
The amendment clarifies the position. It is a small technical amendment which may appear rather inconsequential compared with the big issues that we have been debating, but it is probably one of the most important. I have debated this Bill outside the Chamber with many people. One of their biggest fears about mental health legislation is the way in which it plays out practically and, particularly, how it plays out in relation to ASBOs and people in their neighbourhoods who behave dangerously. They see the police being reluctant to take action. Although the amendment is very minor and somewhat technical, it covers an important public safety point that may be misconstrued. Therefore, I hope the Government will look on it with some sympathy.
I support Amendment No. 31. I believe that its merits are self-evident—the Minister should not require my intervention to see them. However, we have heard much in the course of our debates about the stigmatising effect of being made subject to the powers of the Mental Health Act. Here is an opportunity to include a small measure that could ease the stigma of the Act.
The Mental Health Act Commission drew attention to the stigmatising language of Section 135 of the 1983 Act in its last biennial report to Parliament. The amendment seeks to render into modern language the current formulation of the criteria for a warrant, which at the moment contains the unnecessarily offensive notions of “mentally disordered persons” and,
“kept otherwise than under proper control”.
If the Minister is minded to reject the amendment, I ask him what is “proper control” of a person suffering from a mental disorder, and who is entitled to exercise it. It seems to me that the notion of proper control is both outdated and inexact and should be replaced.
As my noble friend Lady Murphy, an eminent historian of the history of psychiatry, knows better than I, and as the noble Earl, Lord Howe, has stated, the origins of many of the 1983 Act’s provisions can be traced back to the Lunacy Acts of the 19th century, if not to older measures. The phrase “proper care and control” can be found in Section 13(3) of the Lunacy Act 1890.
There is nothing necessarily wrong with the continuance of key powers in this way. After all, mental health legislation always serves the same basic purpose of determining rules about coercive interventions. However, it means that we have to be careful that we are not unwittingly perpetuating 19th century attitudes towards mental disorder. Many changes have been made to the wording of provisions as they have been translated from one Act to its successor over the past century. For example, we no longer have,
“alleged lunatics wandering at large”,
as the 1890 Act would have them. That is a good example of a piece of Victoriana that now needs to be put aside.
Amendments Nos. 31 and 34 concern a right of access to individuals in private premises. I shall deal first with Amendment No. 31.
Under Section 135 of the 1983 Act, a magistrate can issue a warrant based on information supplied by an approved social worker—approved mental health professional—which authorises a police constable to enter premises, using force if necessary, to remove a mentally disordered person to a place of safety for assessment. The purpose of the assessment is to establish whether the person needs to be detained in hospital for assessment or treatment, or whether other arrangements need to be put in place for his treatment or care. When the police constable executes such a warrant, he must be accompanied by a doctor and an approved social worker—approved mental health professional. If the person is removed to a place of safety, he can be kept there for no more than 72 hours.
I have sympathy with the intention of the amendment as outlined by the noble Earl, Lord Howe, which is to update the language of Section 135. I certainly accept that some of the existing wording, as the noble Lord, Lord Patel, described, is outdated, indeed stigmatising. However, the effect of the amendment may not be what noble Lords envisage. On the one hand, it would broaden the group of people to whom Section 135 could potentially apply. This is because it would dispense with the current criteria of neglect, ill-treatment, lack of proper control or an inability to care for oneself, and replace them with a condition that there should simply be an indication that the person was in need of care or treatment for a mental disorder. On the other hand, the amendment would narrow the circumstances in which the intervention of a police constable would be appropriate. This is because it specifically links the need for care or treatment to the person’s mental disorder. Under the existing provision, the ill-treatment, neglect, lack of proper control or inability to care for oneself need not be linked to the existence of the mental disorder from which the person is suffering.
The use of Section 135 involves a considerable interference in the mentally disordered person’s home and family life. The noble Baronesses, Lady Meacher and Lady Barker, spoke about the uncertainty surrounding rights of entry, but I am not aware of any concerns that the Bill operates in such a way as to make it difficult to get help to people who appear to need it. It would not be desirable to amend it unless there is a compelling reason to do so. I am not convinced that Amendment No. 31 would result in an improvement for patients. Indeed, it may have unforeseen repercussions because of its material effect on the wording of Section 135. However, having listened to the views expressed today, I shall take away the amendment for further discussion, although I do not promise to move my position on it. I will discuss it further, because what was said about the wording being stigmatising is important.
Amendment No. 34 would allow an approved mental health professional, and any other person whom they ask to accompany them, to enter any premises to interview a patient before deciding whether an application should be made to admit the patient to hospital under the Act. Section 115 of the 1983 Act already gives an AMHP the power to enter a patient’s premises if they have a diagnosed mental disorder. Amendment No. 34 would provide a similar power where it is not clear that the patient has a mental disorder. Section 115 does not allow forcible entry, but nor would the power proposed by the amendments. However, as in the amendment, a person obstructing an AMHP using the power under Section 115 would be committing an offence.
I have real concerns about a power that would allow an AMHP, and any other person that he or she identifies, to have the legal right to enter premises when there is no reliable evidence that the person has a mental disorder. Requiring a person to give entry to their home is a serious matter and it should not be allowed on the basis of insubstantial evidence of its necessity.
If an AMHP needs entry to premises to interview a person without a diagnosed mental disorder, they can ask for permission to enter. This would clearly be the most appropriate and professional way to tackle the problem. If access is refused, and it is necessary to enter premises forcibly, a warrant can be sought from a justice of the peace under Section 135 of the 1983 Act, to which I referred earlier. The provisions of Section 115, in conjunction with those of Section 135, are sufficient to provide AMHPs with the powers that they need to enter premises for the purpose of interviewing a patient, while safeguarding the right to privacy of an individual, who may not even have a mental disorder.
As I mentioned, this amendment would also give a police constable, a doctor or any other person whom the AMHP asks to accompany them the power to enter premises to support the AMHP in interviewing a patient. I recognise that at times an AMHP will need to enter premises where there may be a risk to themselves if they go unaccompanied—for example, when the patient is reported to be acting aggressively. However, there is already provision under Section 17(1)(e) of the Police and Criminal Evidence Act 1984 for a police constable to enter premises without a warrant if such action is required to save “life or limb” or to prevent “serious damage to property”. Alternatively, a warrant could be sought under Section 135.
We must strike a balance between enabling the professionals to carry out their functions in safety and the rights of an individual to privacy and security in their own home. I do not believe that it would be appropriate for a potentially wide range of people to have a right of entry to private premises on the say-so of an AMHP, without any evidence that a person has a mental disorder and without a warrant. I therefore ask noble Lords to reconsider the amendment.
I am grateful to the Minister for her response on Amendment No. 31. I hope that she will have a careful look at the wording. The noble Lord, Lord Patel, was entirely right to draw attention to that wording, which I did not read out. I am glad that he did, because I genuinely think that this is something that needs changing—if not in the precise way that we propose, then in a similar way.
As for Amendment No. 34, I confess to being disappointed, since in recent years police forces are more and more uncertain about their right to enter private premises without a warrant when they are asked to accompany an approved social worker, either to protect the social worker or anyone else during the assessment, or to assist with an admission at a hospital. If there is confusion of that sort, we surely want to iron it out. It has resulted in a number of instances in which requests for help have been refused or warrants have been issued inappropriately under Section 135. The purpose of the amendment was to clarify the position. The intention was not to extend the rights of the police inappropriately. However, I note what the Minister said. Clearly, this is a matter that we shall need to consider. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
32: After Clause 20, insert the following new Clause—
“Duty to inform nearest relatives of rights
(1) Section 13 of the 1983 Act (duty of approved social workers to make applications for admission or guardianship) is amended as follows.
(2) After subsection (5) insert—
“(5A) After making an application for admission or guardianship, the approved mental health professional shall have a duty to take all practicable steps to inform the person (if any) appearing to be the nearest relative of the following rights within 7 days—
(a) to apply for admission for assessment under section 11(1) above; (b) to apply for admission for treatment under section 11(1) above; (c) to apply for guardianship under section 11(1) above; (d) to be informed of an admission for assessment under section 11(3) above; (e) to object to an application for admission for treatment or a guardianship application under section 11(4)(a) above; (f) to be consulted before an admission for treatment or guardianship under section 11(4)(b) above; (g) to require a local authority to make arrangements for an approved social worker to consider the patient’s case and to be given written reasons if an application is not made under section 13(4) above; (h) to discharge the patient from detention or guardianship under section 23(2) below; (i) to apply to the Mental Health Review Tribunal under section 66(1) below; (j) to be informed of the intended discharge of a patient under section 133(1) below; (k) to be involved in aftercare planning under section 117 below; and (l) to be furnished with a copy of information relating to community patients under section 25 of the Mental Health Act 2007.””
The noble Lord said: I assure the Minister that I do not move this amendment with a deep sense of frustration, which is a phrase that I have heard around the Committee today. Not at all! Monday was deep frustration day, but this is Wednesday.
I recognise that if Amendment No. 40, which is grouped with Amendment No. 32, is agreed, the definition of “relative” and “nearest relative” would be amended, giving the patient the right to nominate, if he or she so wishes, a named person who could fulfil the role of nearest relative. But subject to that—and I realise that the noble Baronesses, Lady Barker and Lady Neuberger, will speak to Amendment No. 40 later—I shall concentrate on the substance of Amendment No. 32.
The reason for this amendment is that nearest relatives are rarely aware of their important rights under the Mental Health Act 1983, which are one of the safeguards in relation to compulsory treatment. I am sure that the Minister shares my view that it is important that the duty to inform nearest relatives should work well and should always be respected. At present, no statutory body has responsibility for providing information to nearest relatives, so this amendment puts a specific duty on the approved mental health professional to take all practical steps to provide the information within seven days. I should perhaps declare that, last year, I was a nearest relative for quite a number of months, so I have a little personal experience of it.
It may be thought that the list of points in the amendment is rather fulsome, but I wish to give the Minister the opportunity to comment on whether he views it as reasonable to cover them all and, if so, how best to achieve that. I beg to move.
I support what the noble Lord, Lord Williamson, has said, but I will speak to Amendment No. 40. In the 2004 Bill, the Government were going to allow patients to nominate someone to act as their nearest relative. One reason for that was that the nearest-relative provisions in the 1983 Act are quite complex—this is one of the commonest areas for mistakes around the Act. Also, the person who is the nearest relative is not necessarily the person who has been nominated by the patient. Given that the 2004 Bill was going to deal with this by allowing patients to nominate someone, it is rather a surprise to see now that the only change from the 1983 Act is to add the patient to the list of people who can apply to displace the nearest relative. That really is not good enough.
First, what if the patient and the nearest relative do not get on? That has been known. In the Bill as drafted, the patient has to prove that the nearest relative is unsuitable. Suitability is rather a strange test to use, particularly where what might be going on is to do not with suitability but simply with an inability to get on—the two just do not like or possibly even trust each other. Secondly, in order to change the nearest relative, the patient has to go to court at a point where they are ill and, possibly, vulnerable, and may well be rather dependent on the nearest relative concerned. Thirdly, I am also considerably worried that the cost of applying to the court for this could be something like £500, which, for many of these patients, might well have to be found from their incapacity benefit, as they are largely living on that. So there are rather a lot of questions to be answered by the Minister on why the provisions in the 2004 Bill are not in this Bill.
Another point worth making is that, in all the time that we have looked at the legislation before us, we on the Liberal Democrat Benches have been at pains to say that we think that public safety is important. If we want patients to really trust the system, we have to allow them to nominate the person whom they want to act as their nearest relative. We would argue that if they trust the system—and can make that nomination—they will feel more at ease within the system, which will be safer for all of us.
I add my support to Amendments Nos. 32 and 40, but I will speak mainly to the latter, as the noble Baroness did.
Since 1997, the Mental Health Act Commission has highlighted distressing stories concerning patients and their families. The rigidity of the 1983 Act regarding the nearest relative has often meant that, in addition to the interference, however necessary, with their private lives, patients have also had to put up with professionals blundering, however reluctantly, into difficult or painful family dynamics. In some cases, this has placed people at risk. For example, in the case of JT, the European Court of Human Rights finally told the Government in 2003 that enough was enough. The rigidity of the Act has meant that adult patients who were estranged from their parents and alleged past abuse by one or other parental figure have had that estrangement curtailed by mental health professionals, because it was perceived to be a requirement of the law that the parents were automatically seen as the nearest relative.
The identification of a patient’s nearest relative through a hierarchical list without reference to the wishes of the patient, and without giving any choice to a patient who is mentally competent to exercise a choice, is both discriminatory and plain wrong. There is no compelling reason why patients who are detained or subject to any other coercion under the Mental Health Act powers should be subject to such blanket discrimination. The effect of this is to deprive them of choice in identifying a relative or friend with whom they want to be recognised as having a special relationship. All other patients in hospitals may nominate their next of kin; it is not imposed on them according to who the oldest and closest surviving relative is, or according to any other criteria, as long as they have the capacity to make a choice.
I am pleased to note the amendments to the Mental Capacity Act that seek to provide safeguards for people who are incapable of giving consent. These affect any patient who retains the mental capacity to exercise a choice over the identification of their representative, whose powers and role reflect those of the nearest relative in many respects. Yet, in this Bill, the Government propose that patients will continue to have a nearest relative imposed on them, with the result that patients will be put in the invidious position of having to explain why that person is not suitable to act as the nearest relative. The draft code of practice states that,
“a nearest relative cannot be rendered unsuitable on the basis that another person is deemed to be more suitable”.
That sits uncomfortably with the intent to address the unwarranted interference with patients’ private lives, as identified in current law by the European Court of Human Rights.
I am also concerned that the failure to recognise choice in the selection of the nearest relative may be even more exacerbated in the case of people from different ethnic and cultural backgrounds. In such situations, the risk to the patient can be further compounded if they do not speak English.
Whatever the circumstances, this surely will not do. We have waited six years since the Government settled a legal challenge out of court by promising action on this matter. After all that time, it is debatable whether the Government’s current proposals even address the outstanding incompatibility of the law on this with Article 8 of the European Convention on Human Rights. This law is discriminatory and the Government’s proposal to loosen it is discriminatory. Frankly, it astounds me that here, again, is an example where better provisions are proposed under the Mental Capacity Act for Bournewood patients than will exist for people affected by the Mental Health Act.
The amendment would do what the Government should have done a long time ago, by giving priority to a competent patient’s wishes over the inappropriate and outdated hierarchical list currently used to identify nearest relatives. I do not know why the Government have resisted for so long this apparently straightforward solution to the problem. If the Minister is minded to reject the amendment, I would be very interested to hear how he will explain what the difficulty is.
I support the amendment proposed by the noble Lord, Lord Williamson of Horton. All he is really asking for is that the nearest relative or carer, who is often ignored until the patient is to be discharged, should have a serious conversation about what has happened and what their rights are. That seems to be entirely practical and gives patients’ relatives, who have serious responsibilities under the legislation, some statutory involvement.
The business of the nearest relative is a complete nightmare. If you section someone in London who is looked after by their brother next door but has an older brother in Edinburgh, the brother in Edinburgh is classified as the nearest relative. It is as simple and as stupid as that. You have a long list that you carry around in your pocket, which you tick off to identify the nearest relative. Social workers have found that a nightmare and it is about time that it was changed.
I know that there has always been anxiety over those patients who nominate the next eccentric person on the ward as their nearest relative. That happens in special hospitals all the time; they say, “I will have that one”, or they choose the next person through the door who offers the next set of drugs that they would like. We have included in the amendment a clear way around this, so that it cannot happen. The nearest relative has to be someone who is seriously involved in the patient’s care. We now have a flexible approach to recognising what is a family and who is the next of kin. That is the case when you go into hospital for anything else, so why not for our patients?
It has been a very interesting debate. The noble Lord, Lord Williamson—who I am delighted to hear is not frustrated so far today; we will see what we can do—and the noble Baroness, Lady Neuberger, have asked for detail on this matter, and I am glad to respond. The noble Baroness, Lady Murphy, put her finger on it when she asked why the Government are continuing with the concept of the nearest relative. I shall talk about that shortly.
The role of nearest relative is an important one, enshrined in legislation. It has important rights and powers which provide significant patient safeguards. It is my responsibility to explain why the Government have decided, in the context of this legislation rather than the 2004 draft Bill, to retain the concept. The concept of the nearest relative provides an independent counterbalance to the authority and powers of the approved mental health professional to detain a patient and compel him or her to stay in hospital. Where the AMHP is considering the admission of a patient, the nearest relative must be involved where it is practical to do so. If the patient is to be admitted for an assessment, the nearest relative is to be advised of this. If the admission to hospital is for the treatment of a patient under Section 3, they are given the opportunity to object. When they object, the admission cannot proceed. The nearest relative can also object to an application for guardianship.
As the code of practice makes clear, the AMHP must provide the nearest relative, before he or she exercises what on any count is an important power, with any information about the patient that the nearest relative needs to make an informed decision about whether they wish to object. Guidance in the code states that where a local authority is asked by the nearest relative to apply for admission of the patient but the local authority, based on the AMHP’s consideration of the case, does not do so, the local authority will inform the nearest relative of that fact. It will also advise him that he can make his own application. There can be no doubt whatever that the nearest relative should be informed of his right to apply for admission of the patient at this early point. The Act already provides that nearest relatives are consulted, notified and advised of their right to object to an admission for treatment, even before any application for admission is made—not after the admission, as in the amendment.
The duty to provide information to the nearest relative after the patient has been admitted currently falls on hospital managers. We think that that is the right thing to do. The individual AMHP, who provides the assessment and applies for admission of the patient, may not necessarily have a future role in the care and treatment of that patient. Requiring the AMHP to perform this function might often be inappropriate. Except where the patient objects, the nearest relative is to receive a copy of the information provided to the patient, and this will include that the patient can be discharged by his nearest relative. My department has produced a template leaflet that hospital managers can use or adapt which is specifically addressed to the nearest relative about his rights.
I also refer noble Lords to paragraph 30 of Schedule 3 to the Bill. This introduces a new Section 132A to the Act providing for hospital managers to inform patients of the effect of a community treatment order whenever a patient is placed on to supervised community treatment. We will discuss such treatment in a moment. This information will be shared with the nearest relative—again, subject to the consent of the patient. We believe that that is consistent with the existing provisions for sharing information with the nearest relative at the time of admission and at the time of discharge.
One problem that we have with the amendment of the noble Lord, Lord Williamson, is that it shows no such caveat allowing a patient to object to personal information being shared with the nearest relative. We consider that to be a problem in relation to confidentiality and privacy. Obviously, there will be times when impracticability provides that an unsuitable nearest relative who has not been displaced need not be consulted. In addition, the patient can currently prevent his nearest relative being given information at the time of his admission. However, the noble Lord’s amendment would provide no such privacy or protection to the patient in those circumstances. We think that the Act provides sufficient and appropriate provisions for the nearest relative to receive information about his powers when it is needed.
Clearly, there is an issue of practice, and that is what we think the code of practice exists to do. The code is still in draft, so we are welcoming suggestions and clearly the debate in your Lordships’ House will also heavily influence the wording of the draft code. We think that that is the best way to deal with that problem.
I turn to Amendment No. 40, to which the noble Baroness, Lady Neuberger, spoke. In the majority of cases, her amendment would place the powers of the nearest relative in the hands of a patient-nominated representative. However, we think that it is inappropriate for a patient nominee to exercise the powers of the nearest relative under the Act. As I have just explained, the powers of nearest relatives mean that they are not just patient representatives, although most nearest relatives very effectively represent their patient relatives. I know that the noble Baroness referred to the intention of the 2004 Bill, but of course that Bill did not replicate the nearest relative at all. Introducing an independent legal body which authorised compulsion changed the whole business of compulsion. We considered then that there was no longer a need for an independent counterbalancing role, as exercised by the nearest relative. Given that we have constructed this Bill to be incorporated within the essential framework of the 1983 Act, we think that the independent relative continues to have a valid role.
We also think that, in order to exercise his power, the nearest relative must be free to act in a way that represents his understanding of the best interests of the patient. Sometimes that might mean that the nearest relative will use, or not use, his powers in ways that do not concur with the wishes of the patient. Of course, many people chosen by the patient would feel duty-bound to act in the way that the patient wished, but the powers of the nearest relative have not been designed to work in that way.
The noble Baroness, Lady Murphy, raised a point about the safeguard. I think she said that the person chosen must know about the patient; it cannot be a frivolous choice. None the less, someone might be chosen who will simply carry out the wishes of the patient. Given the role, the nearest relative needs to be able to act, as I said, in a way that represents their understanding of the patient’s best interests and not simply to carry out the patient’s wishes. That is the problem with the second amendment.
Will the Minister explain why that should be the case in mental health treatment any more than it is in any other form of health treatment? Like many others, I have been involved with the care decisions of people on life-sustaining and life-threatening treatment. Why is there any more reason to believe that a person nominated by someone subject to mental health legislation would be any more likely not to act in the best interests of the patient? I do not follow the Minister’s argument.
Why has the Minister not taken on board the extent to which family dynamics can affect the issue? As my noble friend Lady Barker said, there is an important point of principle regarding why patients with mental illness should be treated differently. But there is also a point about families and family dynamics, which often come to the fore in cases of mental illness. The noble Lord is assuming that different circumstances apply here, but I fail to see how he has made that argument. There is a further point. We have occasionally been quoting the Scottish legislation with approbation. The right of choice is in that legislation.
The context in which both the Scottish legislation and the 2004 Bill operate is entirely different from the framework that is set out in the 1983 legislation. We have decided to stick with the essential framework of the 1983 legislation in the amendments that we have now put in place.
I turn to the Bill’s provisions allowing patients to apply to the courts for the displacement of the nearest relative. It is worth making clear that they will be able to make such applications on all the existing grounds as well as on the new grounds that the nearest relative is not a suitable person to act as such. This is an important balance to the debate that we have just had. It will be for the court to determine whether a nearest relative is otherwise not a suitable person to act as such.
It would be helpful if I outlined what the Government have in mind in establishing this ground for displacement. We do not believe that a person is unsuitable to be the patient’s nearest relative simply because the patient may be upset with the nearest relative over a trivial matter. We know that suffering with mental disorder is often a distressing and difficult time for the patient and that it is no less so for those who love and care for the patient. In that environment there can be potential for disagreement between a patient who may not wish to go to hospital, for example, and the nearest relative who reluctantly accepts that that is the best course of action. Such a disagreement should not in itself be grounds for removing important powers from the nearest relative.
We have in mind situations where a nearest relative’s occupation of that role and its powers under the Act poses a real and present danger to the health or well-being of the patient. Where a nearest relative has abused the patient, for instance, he should not be allowed to exercise the rights of the nearest relative. It is not important how recently the abuse took place. If the patient or others who know or are close to the patient have a genuine fear that the abuse may be repeated—or even that a relationship with a formerly abusive nearest relative may cause the patient distress—we intend that such a person should be considered unsuitable to act as the nearest relative of the patient. These applications will be heard, as they now are, in the county court. The court will not be asked to sit in judgment of any of the past actions or deeds of the nearest relative. Its role will be to determine whether the nearest relative is otherwise unsuitable to act as such.
The opinions and views of the patient will be very important and we fully expect that they will form part of the court’s deliberations. However, we do not wish the court to feel that it is prevented from displacing a nearest relative it deems unsuitable, even where the patient would wish that person to remain as their nearest relative. I would instance cases where the victim of an abuser actually acts to protect the abuser, either out of fear of the abuser or through a form of identification with him. We do not wish the court to feel constrained in such circumstances in displacing a nearest relative it finds unsuitable.
The noble Baroness, Lady Neuberger, mentioned the issue of cost. The regulatory impact assessment sets out the cost, and legal aid would be available. I hope that meets some of her concerns.
I have covered a lot of the ground on patients’ relatives. I hope noble Lords will understand that the Government’s position is that the nearest relative continues to form an important role. It is clearly important that they are informed in the way described. The legislation, backed by the code, will allow that to happen. But there is a distinctive role for the nearest relative.
I refer the noble Baroness to Section 26 of the 1983 Act, which says:
“In this Part of this Act ‘relative’ means any of the following persons: -
(a) husband or wife;
(b) son or daughter;
(c) father or mother;
(d) brother or sister;
(g) uncle or aunt;
(h) nephew or niece”.
It goes on to give other examples.
I am grateful to the Minister for his reply. Although the two amendments are different, he covered the points quite clearly. My amendment was headed “Duty to inform”, which is the point that I was raising. I recognise that, as he said, some of the points listed in the amendment may not be appropriate for the approved mental health professional—the reference to local authorities, for example. I also accept that it would be possible to achieve what I want by the strict operation of a code of practice. My objective is to make sure that that happens. On Amendment No. 40, I am sure—given the strong views expressed—that the noble Baronesses, Lady Barker and Lady Neuberger, will reflect on what has been said. That is a matter for them. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
33: After Clause 20, insert the following new Clause—
“Effect of application for admission
In section 6(1) of the 1983 Act—
(a) for all references to “applicant” substitute “NHS trust responsible for hospital provision”; and (b) for “convey him to the hospital” substitute “convey him to the hospital identified by the trust as being able to receive him”.”
The noble Earl said: This amendment brings us back to the process involved in admitting a mental health patient to hospital and focuses on a real difficulty that is often encountered. Under the present Act, the approved social worker is personally responsible for the custody and transporting of the patient, which of course carries with it a responsibility for the patient’s safety and the safety of anyone else with whom they come into contact until they are finally accepted on to a hospital ward. However, quite often there are difficulties in getting prompt or adequate assistance from police and ambulance staff. Not uncommonly, beds are scarce, with offers of beds being withdrawn when the patient is brought to the hospital. In those sorts of situation, the ASW is extremely exposed, both personally and legally.
The converse of this is that, because trusts do not become legally responsible for the patient until he or she is actually received on to a ward, there is little pressure or incentive on management to resolve the difficulties. The amendment would transfer legal responsibility from the approved mental health professional to the trust from the moment the application is signed. It would also provide for the application to be made to the trust rather than to a named hospital, which would prevent the application from being invalidated if it was necessary to admit the patient to a hospital other than the one originally planned. It is perhaps worth adding that this need not affect the way in which an admission is carried out. The trust could appoint the approved mental health professional as its agent and then authorise him or her to convey under Section 6(1), but the key point is that the trust would remain ultimately responsible in law. I beg to move.
As the chairman of a mental health trust, I am very aware of the difficult position in which approved social workers in this process of detention find themselves under the Mental Health Act. I endorse the comments made by the noble Earl, Lord Howe, many of which I would have made but now will not do so.
One of the main issues is that police and ambulance personnel do not have unlimited time. Police officers are often under pressure to move on to another commitment, yet their presence is absolutely essential in most of these cases, if they are called at all, to ensure the safety of the patient and of the professionals involved.
As the noble Earl, Lord Howe, said—the Mental Health Alliance has made this point strongly, too—beds are incredibly scarce these days. We are increasingly facing the situation where all this work is being done—two medical recommendations are obtained, and the doctors, ambulance staff and police are there—but no bed is available. It is not difficult to imagine the position of the approved social worker, fairly junior in the hierarchy, with this undoubtedly very disturbed patient in an ambulance, kicking around and making life difficult for everybody through no fault of their own, having nowhere to go. That is the position that we are faced with.
Amendment No. 33A makes some constructive proposals on the role of the primary care trust. However, nothing is ever as straightforward as it seems. In speaking to these amendments, I make it clear that, particularly in the new world of foundation trusts, the question of a trust’s financial responsibility for a patient becomes an issue. If responsibility is transferred from an ASW to a trust, as I believe it should be, it will need to be made very clear, probably in regulations, that the relevant commissioning bodies—currently primary care trusts, but we do not know what they will be in the future—will have to be responsible for commissioning services to cover patients detained by one trust when in fact they are the responsibility of another.
Let me give an example. A patient from Cumbria may come down to London for the weekend and find themselves in an A&E department and placed under section. It may not be feasible to transfer that person back to Cumbria immediately. The local trust will need to be reimbursed with the cost of detaining the patient—if that is what happens—until the transfer can be arranged.
I do not want to take up more of the Committee’s time. I say only that I strongly support the principle of placing with a trust the responsibility for, in particular, the custody of someone in the difficult position of having been detained. However, I want to make it clear that I understand that that is not entirely straightforward and that regulations would be needed to work out a method of dealing with these issues, in particular the financial ones.
I shall speak to Amendment No. 33A. I had not intended to take part in this Bill as I consider that I know nothing about mental health and the arrangements. However, I was prevailed on by various social workers who felt that it contained gaps and that this was one of them. I undertook to support the amendment on the basis that the noble Baroness, Lady Finlay, or the noble Baroness, Lady Meacher, would take it over. I found the noble Baroness, Lady Finlay, first and she agreed to speak to it. However, she cannot be here today and has passed the responsibility to me with a heap more points that she has worked out and that I would never have known about. I am afraid that noble Lords will therefore have to listen to her comments.
I cannot see that the principle is very different from that in Amendment No. 30 tabled by the noble Earl, Lord Howe. We are both aiming at the same thing and the idea is to put the matter before the Committee for consideration. Why is the provision needed? The code of practice exhorts the relevant authorities to agree joint policies and procedures at a local level, but the degree of co-operation is variable. Even where agreements exist, they are often ineffective in practice as they are purely voluntary and tend to be overridden by other operational priorities. The amendment would put these voluntary arrangements on a statutory basis in a form capable of being monitored by the relevant performance review mechanisms.
I quote from an approved social worker:
“Our trust is in breach of Section 140. We can try and arrange a bed in advance but on a regular basis they are withdrawn. We have been refused access to wards, with a patient in our custody, because the bed previously identified as available was no longer available. We have no default position. The trust will not identify a site to which we may bring our detained patients in an emergency”.
Despite the duty on the primary care trust to let local social service departments know where urgent cases should be taken, few perform it. This leaves users, carers, professionals and the public at risk in volatile and difficult situations with no bed available and nowhere to go with a distressed, unwell patient.
Last year, a survey by the Association of Directors of Social Services into the approved social worker service found that nearly 60 per cent of local areas reported problems with accessing police and ambulance support. Indeed, the noble Baroness, Lady Meacher, referred to that. More worryingly, a significant number reported that the more serious the case, the longer the delay might be. A current survey of approved social worker needs in London found that assessments needing tactical or firearms officers can sometimes be booked only on alternate weeks and can be cancelled at short notice.
There are many committed officers, including at senior level, in both the police and ambulance services. However, when operational procedures change, too often little thought is given to the impact on mental health. Support to mental health therefore becomes rationed to some specified times or days. Yet such delays can result in the patient deteriorating and presenting an escalating risk to others.
In some areas, the ambulance will not attend unless the police are present, occasionally even when they are not needed, leaving the approved social worker with a patient becoming increasingly agitated and distressed. One recent example was of a four-hour wait which meant that the detained person absconded and could not be found for several days. Worryingly, such delays may affect people from ethnic minorities disproportionately. Some social workers have even reported delays running into weeks from the time when a request for an assessment that needs police presence is made to the time when such an assessment has been successfully completed.
Imaginative solutions may need to be considered. For example, one mental health trust has a “total transport policy”, which includes the transporting to hospital of most patients detained under the Mental Health Act, thus avoiding delays and preventing ambulances from being tied up unnecessarily. Equally innovative policies with the police may need to be considered. Only a small number of the assessments that approved social workers undertake each year need the support of the police and an even smaller number need the response of armed units. Yet when they do it is essential for all concerned that the support is available swiftly and in a way that is appropriate to the needs of the service user, their family and public safety. Timely interventions prevent situations that place people at unnecessary risk and decrease the possibility of patients being picked up by the police because they have gone on to offend.
Conflicts between services around conveyance arise too often, leaving the approved worker trying to negotiate between the ambulance and police services. The amendment, coupled with the amendment to Section 6(1) in the names of the noble Baroness, Lady Meacher, and others, is designed to ensure that the issue is given appropriate weight and authority to ensure that the current problems experienced around the country are resolved as far as humanly possible. I place those facts before the Committee and it is for the Government to view the matter in the light of the comments made on the amendments and the Bill.
Amendments Nos. 33 and 33A both address how local services work together to ensure patients’ safe and efficient admission to hospital, including patients requiring urgent admission. Amendment No. 33 concerns the responsibility for conveying to hospital a patient who is admitted under the Mental Health Act. The Bill leaves that responsibility with the person who made the application for the patient’s admission. That will almost always be an approved social worker or, in future, the AMHP.
Amendment No. 33 would transfer responsibility for conveying the patient to hospital from the AMHP and place it with the NHS trust or someone authorised by the trust that contains the hospital to which the AMHP has made the application for admission. Currently, a patient for whom an application has been made is the responsibility of a named individual—the ASW—until they are admitted to a hospital. The Bill places accountability with another named individual, the AMHP. However, if we place the responsibility for conveying a patient with an NHS trust, we lose that individual responsibility and I fear that it will become more likely that a patient will not be safely conveyed to hospital, although I recognise the concerns expressed by the noble Earl, Lord Howe, about the responsibility placed on the ASWs. That does not seem desirable when the system that we have now better ensures the patient’s safe passage to hospital.
Any problem with the trust’s processes that results in a failure to ensure the patient’s proper conveyance could place the patient or others at risk of harm or neglect. It is therefore essential that we ensure a robust system with clear lines of personal accountability, which is what the Bill provides for in the form of an AMHP. The skills that an AMHP brings will be well suited to the job of conveying a patient in the least distressing manner, rooted as they are in a holistic perspective of patients’ needs. AMHPs will be highly trained in their role. The AMHP attends the patient to assess them before making the application, so they are normally already with the patient and should have already established a relationship with the patient. If the responsibility for conveying the patient lies with the trust-appointed person, there may be delays in identifying that person and waiting for them to arrive.
There is no suggestion in the amendment that there would be a change in the method or process. The AMHP, or the ASW at the moment, would still be the person responsible, and they will have the appropriate skills; there is no question about that. The problem is the availability for hours at a time of the police and ambulance services. They are not available indefinitely, so the AMHP or ASW is in an impossible position. We are not questioning anyone’s skills; we are pointing out the realities out there and the fact that we need someone with some power—that is, the trust—and some funding for the arrangement to work in practice, otherwise we are leaving people in a difficult position.
I understand that position and will come back to it. Essentially, we believe that these are service issues which need to be addressed, and while we all want to ensure that all patients and AMHPs have the services that are necessary available to them when they need them, we believe that it is not appropriate to address those issues through legislation.
The noble Earl, Lord Howe, suggested that the trust could appoint an AMHP as an agent. But if an AMHP is given responsibility for conveying by the trust, nothing would be different from the position at present. There would be the same requirement for them to secure services, such as from the ambulance service, police service and bed manager. Good local protocols setting out how these services will co-operate will still be key.
More substantively, the Bill allows an application to be made for a patient’s admission only if there is appropriate treatment available. That is extremely important. I therefore believe it is right that if the appropriate treatment is available in a particular hospital, the application should be made to that hospital, not to any in the trust that may or may not be able to provide appropriate treatment.
The amendment is intended to address the important issue of the extent to which ASWs can rely on the co-operation of a trust in admitting a patient. I understand that a breakdown in this co-operation can result in unnecessary delays in securing a bed or an ambulance if one is needed, leading to distress for the patient and often their family, and avoidable difficulties for the ASW. The amendment seeks to address this by transferring the legal responsibility for conveying and admitting a patient to the trust. Of course I sympathise with the concerns that the amendment reflects, but I do not believe that a legal solution is the answer. It is a matter of good practice. General provisions under the National Health Service Act 1977 already require NHS bodies to co-operate with local authorities. None the less, despite this legal requirement, I acknowledge that ASWs can have problems accessing trust resources.
I hear all that noble Lords have said about the level of local delivery. It has been said before in this House that it is not appropriate to legislate centrally for local arrangements, and I agree with that view. What is needed here is better communication between trusts and local authorities and agreed protocols. It is not the Government’s place to say what these local arrangements should be. However, I will consider whether the codes of practice can be strengthened—I am sure that they can be—to make clear the duty on trusts to co-operate with AMHPs in providing an effective service for conveying and admitting patients in their area.
Amendment No. 33A would replace Section 140 of the Act, which currently provides that a primary care trust in England or a local health board in Wales must advise the local authority of all the hospitals that accept patients as urgent cases for the treatment of mental disorder. The amendment would replace the existing section with one that provides for a much wider-reaching duty. It provides for a duty on the PCT to work co-operatively with the police, local authorities, the ambulance service and NHS hospitals that provide in-patient services to develop and publish a protocol that covers a wide range of practice issues. It provides that such protocols must cover maximum response times for trusts, the police and ambulance services in urgent cases, arrangements for obtaining a bed and prioritising cases, conveying a patient safely to hospital, assessing urgent cases and ensuring the safety of all those involved.
The amendment describes what should be good practice. Throughout England and Wales, the police, local authorities, health authorities and trusts, including the ambulance services, have in place protocols and local agreements to address these issues. I understand that there are enormous pressures on services and that in some areas of the country there are concerns about local services co-operating effectively to ensure the safe and efficient admission of patients to hospital. Various surveys have been referred to, but, as I said in the context of Amendment No. 33, I do not think that legislation is the correct place to address these issues.
While we agree that it is good practice to develop, agree and publish local protocols such as those detailed in this amendment, the code of practice already provides guidance on this matter. As the noble Baroness, Lady Gardner of Parkes, explained, the code makes it clear that authorities should have joint policies and procedures on the conveyance of patients and that health authorities, trusts and local authorities should co-operate in ensuring that professionals meet regularly to promote understanding and to address issues. It also calls on social services authorities, health authorities and chief constables to establish policies for the removal of patients to places of safety. The code of practice states that local protocols on these matters should be in place, but it does not specify the details of what the protocols should contain. The protocols must be kept up to date to reflect changes taking place, as the noble Baroness said. We believe that it is right that the details of local arrangements should be a matter for local decision, taking account of local circumstances, and that they should not be dictated by central government. We therefore do not believe it necessary to include them in statute.
The issues raised in this debate must be addressed properly to ensure that services are available. However, we do not believe that the right way to address these practice issues is through legislation. We have to change practices, but that is a matter of ensuring proper implementation. In many ways, that is a matter of changing culture so that mental health services are no longer seen as Cinderella services and so that the urgency of mental health cases is properly addressed. I ask the noble Earl to withdraw his amendment.
We are under a self-imposed time constraint, so I do not propose to reply at length. I thank noble Lords who have taken part in this debate and I thank the Minister for her reply. I wish that we could get away from the myth that the Bill has nothing to do with service issues. It seems to me that the whole of Chapter 2 relates to service issues and the expansion of professional roles. We cannot get away from the improvement of services, and I do not accept that as a valid pretext for rejecting amendment after amendment. Nevertheless, I heard what the Minister said about considering how the code of practice might be beefed up to address the problems that we all acknowledge exist in this area. I hope that she and her officials will be able to do that. Between now and the next stage of the Bill, I shall consider carefully whether this is a matter on which we shall need to return. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 33A not moved.]
Schedule 2 [Approved mental health professionals: further amendments to 1983 Act]:
33B: Schedule 2, page 46, line 9, leave out “on their behalf” and insert “within a reasonable time having regard to the circumstances of the case”
The noble Baroness said: This amendment concerns the duty of approved mental health professionals in applications for admission or guardianship. It has two purposes. The first purpose is to guarantee the legal independence of the approved worker. That person is currently an approved social worker and under the new remit will be an approved mental health practitioner. The second purpose is to ensure that there is a duty on the local social services authority to provide an AMHP to undertake an assessment within a reasonable time.
The independence of the approved mental health professional is essential to the process of assessment. While two doctors or approved clinicians can, under the Bill, recommend admission, unless the AMHP agrees that there is no less restrictive way of providing the care or treatment needed, they can refuse to make an application and prevent compulsory admission. It is essential that AMHPs are able to make their decisions independently and free from even the slightest hint of being obligated to apply under pressure from some other body or person. They should, like the current approved social workers, be classed as an independent public body in law.
The current wording of the Bill compromises this independence by implying that the AMHP will be working “on behalf of” or “at the behest of” the local authority, with the implication that his or her decisions can be countermanded by the authority and influenced by the interests of the authority, which may be different from the interests of the patient. The amendment clarifies the point by making it clear that the approved mental health professional is expected to make an independent assessment of the person’s health and social care needs and carries individual responsibility for their decision, not that the local authority can direct that decision.
As regards the second issue, the noble Baroness, Lady Howarth, has already suggested that the wording of the amendment would be improved if it stated,
“to make an independent assessment”,
but she thinks that the part about,
“within a reasonable time having regard to the circumstances of the case”,
does not mean anything. But social workers believe that it might help them to cover cases which take an exceptional amount of time.
This will ensure not only the independence of the assessor but also the availability of an AMHP at short notice, if necessary, and around the clock. The present Act requires local authorities to provide “a sufficient number” of approved social workers, but this duty has been widely disregarded. A recent survey funded by the Department of Health shows that there is currently almost a tenfold difference between the best and worst performing authorities in the number of ASWs they employ per head of the population. I beg to move.
Amendment No. 33B seeks to amend Section 13 of the Mental Health Act which deals with approved social workers—under the Bill, AMHPs—making applications for a patient’s admission under the Act. The amendment removes the requirement for the AMHP to be acting on behalf of a local social services authority, LSSA. It also introduces a requirement that the assessment should be carried out within a reasonable time having regard to the circumstances of the case.
The Government are concerned to ensure that the case of a patient who may need to be admitted under the Act is assessed by an AMHP within a reasonable time. However, where a statutory duty is not carried out within a reasonable time it is already the case that this is likely to constitute a breach of that duty. Therefore, the duty to arrange for an AMHP to consider a patient’s case for application already implicitly includes the duty for a local authority to do so within a reasonable time. This will be explicitly highlighted in the codes of practice for England and Wales and we do not believe that additional legislation is needed to achieve the effect that the noble Baroness is seeking.
The second aspect of Amendment No. 33B would remove the requirement for an AMHP to act on behalf of a local authority when considering a patient’s case for admission. I note the concerns expressed by the noble Baroness that if an AMHP is said to be acting on behalf of an LSSA, the LSSA could in some way direct the decisions of the AMHP. But this is not the case. An AMHP is required to make an independent decision about whether to make an application. I can assure your Lordships that nothing in the Bill changes this.
Paragraph 5(2) of Schedule 2 to the Bill makes it clear that AMHPs must make an application only if they are personally satisfied that it is necessary and proper so to do. The decision cannot be overturned by the local social services authority for which they are acting. The AMHP acts independently and will continue to do so in their decision-making.
The Bill makes it clear that an AMHP carries out its functions on behalf of the LSSA. This underlines the independence of the AMHP from the trust that may employ the doctors who also examine a patient’s case for admission. It also ensures that the responsibility for providing that an AMHP service is in place still clearly lies with the local social services authority, whether or not it chooses to enter into arrangements with another body, such as a trust, to provide the service.
I hope your Lordships will agree that it is important that we maintain this line of responsibility to the local social services authority for providing the AMHP service. I therefore invite the noble Baroness to reconsider the amendment.
I thank the Minister for those comments. They will be very valuable to the people concerned, who were worried that they would not be seen to be independent. It is quite clear that the employer is the local authority, which carries the ultimate responsibility. I should mention that the noble Baroness, Lady Howarth, said I could quote her. She has been very helpful in discussing this issue.
The fact that those comments will now be on record in Hansard will in itself be valuable. It may be that the matter does not need to be pursued further. But that remains to be seen. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 34 not moved.]
35: Schedule 2 , page 46, line 32, at end insert—
“( ) After subsection (2) insert—
“(2A) Where the patient had a child under the age of 18 residing with them immediately prior to the application being made, the local social services authority must, as soon as reasonably practicable, make an assessment under section 17 of the Children Act 1989 and the local social services authority must also take reasonable steps to inform the child of the application process in light of the child’s age and understanding.””
The noble Baroness said: Amendments Nos. 35 and 37 relate to the children of mentally ill patients. The amendments are supported by Barnado’s, Young Minds, NCH, NCB and the NSPCC.
It is estimated that one-quarter of adults who are known to mental health services are parents. In at least one-third of families who are referred to social services due to concern about child protection, parental mental health or substance misuse plays a major role. Very often a child of a parent with mental health difficulties finds himself or herself as a main carer for the parent. Such children face a number of difficult or distressing situations that they have to overcome on their own. Severe mental health problems can have a serious effect on a parent’s ability to parent, especially if there are few other adults around to give support.
It is estimated that there are 175,000 young carers aged under 18 in the UK, a substantial number. Their average age is 12, but they can be as young as five. Twenty per cent of young carers miss school because of their caring responsibilities at some time or other. Generally, schools do not or cannot provide either counsellors or other means of support to help these very vulnerable and often isolated young people, and young carers themselves are often reluctant to tell teachers or social workers of their situation. The experiences of young carers obviously differ but they have one thing in common. As one Barnardo’s children’s services manager put it,
“The kids we see grow up fast. Young carers are adults”.
Because of their parents’ condition, children may find themselves affected by what we would regard as inappropriate behaviour; for example, a child being kept up all night to play by a parent who is in a manic phase of their illness, or a child having to look after themselves and get their own meals because of a parent’s depression. The child does the housework, the washing and anything else that needs to be done. Such examples were provided to me by Barnardo’s, and they show how vital support for such carers is.
Young people who are responsible for the care of their parents have enormous responsibilities not faced by other children of their age and can find their own mental health affected by their circumstances. Often they suffer from stress and have low self-esteem. Unfortunately, there is quite a lot of evidence that the needs of children who are carers are too often overlooked by our welfare services and that children’s and adult services do not work together to ensure that services provided to an adult are placed in the context of the wider family.
In research from a Joseph Rowntree report, published in 1998, children who had experienced parental health problems, domestic violence or parental substance misuse reported that they had no confidence that a professional would help them and that professionals often spoke to them in a way they did not understand. That experience is summed up by one young person who said, “I needed good age-specific information about my mother's condition and its consequences. And I needed someone to talk to who would listen in confidence and help me to express and explore the complex feelings and situations I was dealing with”. Equally, there is evidence in research by Kroll and Taylor in 2003 in a number of settings, not only mental health. They found that many professionals were themselves uncertain about making referrals to children’s and families’ social work teams in respect of parents and were often unsure about when or how to make a referral.
Section 5.6 of the National Service Framework for Children, Young People and Maternity Services refers to adult health services. It states that the safeguarding of children is a priority in any assessment or ongoing treatment of parents who may be unable to respond to their child's developmental needs. It also states that any care programme responding to an adult health or treatment need should include consideration of the needs of any child or young person. However, as currently drafted, the Bill provides no clear link between treating the adult and assessing the needs of any children in the household. Additionally, the Bill has no specific provision for an assessment of need for any children living in the same household as a person subjected to compulsory treatment. It may be that an assessment of a child, such as one under Section 17 of the Children Act, could take place when a parent is subjected to compulsory treatment. However, the Act does not require such joined-up action to take place.
The purpose of these amendments is to strengthen the current position by making it compulsory for the child to be informed of what is happening in an age-appropriate way and for a full assessment of the child’s needs to be made. I beg to move.
I am very much in sympathy with the amendments tabled by the noble Baroness, Lady Gibson. The needs of child carers are not often recognised in legislation. The Mental Health Bill as drafted provides no recognition of the needs of these young people. They are excluded, quite rightly, from the ability to act as the nearest relative for their parent and, as such, are therefore excluded from the right even to be informed that an application has been made in respect of the parent. The provisions on social reports in the Act provide no recognition of the need for a separate assessment to consider the needs of any children who may be affected by the application for compulsory treatment made in respect of their parent.
The amendment, as the noble Baroness said, aims to deal with that omission by providing children living with people with mental health problems with specific rights under the Act. That is in line with standards 2 and 5 of the National Service Framework for Children, Young People and Maternity Services. Standard 2 states that collaborative arrangements should be in place between services for adults and services for children and families. I am sorry to say that there have long been problems of poor co-operation between adult and children’s services. Changes to services since Section 14 of the Mental Health Act was drawn up have not put right those stresses and strains. The recent introduction of children’s trusts under the Children Act 2004 has meant that adult services have effectively been split from children's services. These amendments would ensure co-operation between adult and children’s services and ensure that the needs of children, particularly young carers, who are affected by their parent’s illnesses, are not ignored. I hope that the Minister will be receptive.
I have added my name to the amendments, because I am as concerned as the noble Baroness, Lady Gibson, that the Bill provides no clear link between treating the adult and assessing the needs of any children in the household. Although the framework for the assessment of children in need and their families may be used to determine whether a child is in need under the Children Act 1989, there is no requirement in this Act that such joined-up action take place.
The children’s charities which the noble Baroness listed are very concerned that, without an explicit requirement in the Bill placing a duty on both health and social services to look into this matter, vulnerable children could—and they do—slip through the net. The amendment would provide an additional safeguard to ensure that joined-up working between health and social services professionals takes place and that the needs of any children who may be affected by an adult being detained under this Act are automatically thought about within that process.
The Minister may feel that the amendment is unnecessary and that the matter is dealt with by the standards that the noble Earl, Lord Howe, mentioned and other legislation on children’s services, but I shall relate to him a few case histories from real life to illustrate that the current legislation and guidance are not working in every case. I hope he will feel that they back up our feeling that this needs to be made explicit in the Bill.
I turn to the first example. Last year, a single mother in a travelling community was seriously depressed. The mental health services and social services were involved with the family. Very sadly, the mother committed suicide at home in front of the children. The two young children were left in that home for two days with their mother’s body before relatives kicked down the door. Nobody knew that there were young children in a household where the mother was so seriously depressed as to be at risk of suicide.
In the second example, a mother was sectioned. The father was left at home with the children. When the mother was sent home from hospital, but still under supervision, the father simply could not take any more and left the family. The mother tried to manage, but in the end could not. The professionals were unaware that the children were vulnerable and at risk, so no referral was made. The children could not cope in school and eventually dropped out. One of them is now in youth custody, which indicates what can happen to a child’s life when they do not receive the assessment which the amendment seeks.
YoungMinds has told me about a single mother with significant mental health problems whose illness means that she is periodically unwell. She has no support in looking after her seven year-old son who has autism. So the family has double problems. Social services are involved, but they have told the mother not to ring the out-of-hours emergency social work number when she feels that she is becoming unwell. As a result, when she feels that she is becoming unwell, she goes to the accident and emergency department in her local hospital, because she knows that it will make sure that someone goes out to look after her son. Staff in A&E have now told her not to come to them, because they are not the correct place to deal with her, but she continues to go there simply because she knows that somebody will do something about her son.
The final example involves a mother who was sectioned. She had two sons, aged 11 and 14. No one made contact with the children or asked her about them. The 14 year-old son had significant mental issues and was extremely violent. The 11 year-old brother was at serious risk of being attacked by him. Both boys were alone for a whole week until an outreach worker discovered them. Social services had been involved with this family, and the boys were on the at-risk register, but social services seemed to be unaware that the mother had been sectioned. The health professionals had not been talking to the social services professionals.
These examples make it clear that the joined-up approach is not always working as we would like. However, there is nothing like putting a duty on someone to do something to make them do it. We need a clear statement about this in the Bill; it is entirely appropriate to put it in. Besides, it is surely of benefit to the patient and his or her treatment and recovery to know that the children are being well looked after.
The second part of the amendment provides for children to be given age-appropriate information about the process of assessment and detention of their parent and about their parent’s illness. Of course, since quite rightly children cannot be considered to be the nearest relative, they do not gain the right to be informed of an application made in respect of a patient. So there is a gap in the Bill for the provision of information to any children who may be affected. The amendment states that that should be provided, in the light of the child’s age and understanding, which is crucial.
Nowadays social services must take into account children’s wishes and feelings when decisions are being made about their care, but how can a child adequately express his wishes and feelings if he does not know the truth about his situation in the light of his parent’s mental illness? Proper information, given in an age-appropriate way, will also help a child to deal internally and emotionally with the turmoil that the illness of a near relative causes to him or her.
There are many very strong arguments for accepting this amendment, and I hope that the Minister will do so.
Amendment No. 35 would ensure that the needs of any child under the age of 18, residing with a patient immediately prior to an application for the admission of that patient, are fully assessed and that the child is advised about the application process. Amendment No. 37 similarly seeks to ensure that the needs of any child under the age of 18, residing with a patient immediately prior to their admission to hospital following an application by the nearest relative, are fully assessed and that the child is advised about the application process.
I pay tribute to YoungMinds, Barnardo’s and the NSPCC for the excellent work that they do with children who have mental health problems and the children of parents who have such problems.
It is vital that the needs of children in the household are considered when an adult is assessed and detained under the Act and that children are given clear information, appropriate to their age and understanding, about their parent or carer's illness and treatment. As my noble friend Lady Gibson of Market Rasen informed us, many of the children whom we are talking about are themselves carers; it is extraordinary that children as young as five are acting in that role. However, there is already a legal framework to ensure that children’s needs are assessed and met. Section 17 of the Children Act 1989 places a duty on local authorities to promote the welfare of children within their area who are in need. Therefore, repeating this within the Bill would be duplication.
The Framework for the Assessment of Children in Need and their Families outlines a framework for all those who work with children and their families to decide whether children are in need under the Children Act 1989 and how best to provide help. There are also duties under Section 10 and, particularly, Section 11 of the Children Act 2004, under the duty to make arrangements to ensure that functions are discharged having regard to the need to safeguard children, which are relevant to all agencies—health and local authority—that work with children or with adults who have children. The decision about whether to carry out an assessment under Section 17 of the Children Act 1989 should be based on the individual child and carer's situation. Work is already under way to increase the awareness of adult mental health practitioners about the needs of children in the household.
Indeed, we have to have much more joined-up working, as the noble Baroness said earlier, between social services and health to ensure that both services are aware of the situation of the family as a whole, not just those who are suffering from mental health problems. The noble Earl, Lord Howe, will not like my saying this, but that is a matter of best practice and ensuring that the services themselves work in the manner that we would deem to be proper.
I noted the very sad—indeed, terrible—cases raised by the noble Baroness, Lady Walmsley. Clearly at the moment not enough is being done to ensure that joined-up working or that the needs of children are properly being taken into consideration. However, I refer noble Lords to the report of the Social Exclusion Unit, Mental Health and Social Exclusion, published in June 2004, which identified at action point 16 the need for better support for parents and their children, and set out a detailed plan of action.
Last month, the three-year National Social Inclusion Programme, which co-ordinates cross-government implementation of the action points in the SEU’s report, provided an update on progress. The Action 16 group leading the family, children and carers work is working with the Social Care Institute for Excellence and the National Institute for Health and Clinical Excellence to develop cross-cutting guidance for health and social care adult and children’s services. It has also completed a national review of hospital contact and support arrangements.
In summary, we believe there is already a legal framework to ensure that children’s needs are assessed and met. However, we recognise that practice in this area must be improved, hence the need to cover it clearly in the code of practice—not just in the children’s chapter—and to continue policy development in this area. Indeed, we would welcome co-operative work with YoungMinds, Barnardo’s and the NSPCC to ensure that the code of practice is, in their view, adequate. I urge my noble friend Lady Gibson to consider withdrawing her amendment.
I thank noble Lords who have taken part in this debate. It was heartening for me to hear the spokespeople for both the Conservative and Liberal Democrat parties supporting this amendment.
My noble friend accepted that if there are safeguards in other Acts then they are obviously not working; indeed, the noble Baroness, Lady Walmsley, gave us important examples of how awfully they are not. However, I listened carefully to what my noble friend said and will obviously give this matter further thought before the next stage of the Bill. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 36 had been withdrawn from the Marshalled List.]
[Amendment No. 37 not moved.]
Schedule 2 agreed to.
Clauses 21 to 24 agreed to.
38: After Clause 24 , insert the following new Clause—
“Independent mental health advocacy
After section 125 of the 1983 Act insert—
“125A Independent mental health advocacy
(1) The appropriate authority must arrange, to such extent as it considers necessary to meet all reasonable requirements, for help from persons to be known as independent mental health advocates, to be available to qualifying patients.
(2) The help available under the arrangements must include—
(a) help in obtaining information about and understanding— (i) what medical treatment is being provided to the patient; (ii) why it is being provided; (iii) under what authority it is being provided; (iv) the requirements of this Act which apply in connection with the patient’s treatment; and (v) the rights which can be exercised by or in respect of him under this Act, and (b) help (by way of representation or otherwise) in exercising those rights. (3) An independent mental health advocate authorised by a patient or his nearest relative on his behalf may at any reasonable time, for the purpose of providing, in accordance with the arrangements, help requested by the patient or his nearest relative, meet the patient in private.
(4) The appropriate authority may by regulations provide that a person may act as an independent mental health advocate—
(a) only if requirements specified in the regulations are met in respect of him; (b) only if requirements specified in the regulations are met in respect of any person with whom arrangements are made for him to act as an independent mental health advocate; and (c) only in circumstances otherwise specified in the regulations. (5) In making arrangements under this section, the appropriate authority must have regard to the principle that the provision of help under the arrangements should, so far as practicable, be independent of any person responsible for the patient’s treatment.
(6) The following are qualifying patients—
(a) a patient who is liable to be detained by virtue of an application for admission for assessment or an application for admission for treatment under Part II of this Act; (b) a community patient; (c) a patient who is removed to a place of safety within the meaning of section 135— (i) in the execution of a warrant under section 135; or (ii) by a constable under section 136; (d) an accused person within the meaning of section 35 remanded under that section to hospital for a report on his mental condition; (e) an accused person within the meaning of section 36 remanded under that section to hospital for treatment; (f) a patient in respect of whom there is in force— (i) a hospital order; (ii) a transfer direction; (iii) a hospital direction; (g) a patient, not being liable to be detained under this Act, who is asked to consent to any form of treatment to which section 57 applies.””
The noble Lord said: In moving Amendment No. 38, I will also speak to Amendment No. 39. I believe these amendments, which relate to independent mental health advocacy, were originally tabled by a Labour Peer, the noble Baroness, Lady Morgan of Drefelin. She was subsequently promoted to be a government Whip so had to withdraw her name. I considered that the question of advocacy was most important, and that it was most desirable for the Committee to have an opportunity to debate it. I therefore tabled these amendments in my name, and the noble Lord, Lord Patel of Bradford, has added his to them. I am sure that the Minister will agree that the amendments are so good that it is no surprise that the noble Baroness, Lady Morgan, was promoted to the government team.
For good order, I just add that we have already debated Amendment No. 41. While I am not referring to it specifically again, it refers to advocacy for young people, and in the context of what we are discussing we should be aware that that amendment was tabled by the noble Baroness, Lady Howells of St. Davids, who spoke movingly on it earlier. So, there is a bit of a package even though that is not for discussion now.
The purpose of these amendments is to ensure, first, that the patients subject to compulsory powers under the Mental Health Act 1983 have a statutory right to an independent mental health advocate; secondly, that they are made aware of their right to independent advocacy when decisions are being made on their care and treatment; and, thirdly, that they can meet their advocate in private.
Amendment No. 38 also extends the definition of qualifying patients beyond the groups that the Government identified in the 2004 draft Bill. It would now include patients under Sections 135 and 136 of the Act, and those undergoing serious medical treatment such as electro-convulsive therapy. The “qualifying patients” definition is important. In this amendment, it would include particularly those subject to police powers; it goes without saying that a person who might find himself or herself in a cell or be subject to a warrant delivered by a policeman is, evidently, one who could benefit from the advice of an advocate. I wanted to cover that, so the amendment proposes it.
More generally, there are two reasons in favour of a statutory right for advocacy. First, there is the human element. We have all recognised in earlier discussions on this Bill that those admitted to hospital against their will are likely to be fearful and probably unsure or, in some cases, completely confused about why they are there and about their future. In many cases, the need for independent support is evident. Secondly, there is the protection of the interests of those deprived of their liberty. An advocate could concentrate the patient’s attention on communicating their interests and, where appropriate, allow them to exercise their rights—for example, on appeals. The basic point is that the advocacy for detained people is different from that in general or for informal patients. I beg to move.
I support the noble Lord, Lord Williamson of Horton, and will elaborate on some of his points. The Mental Health Bills of 2002 and 2004 were great freighters of legislation, aboard which there was much that may have been of dubious value and some things that were positively harmful. Many in the mental health field were relieved when they were scuppered. I see my job this afternoon as something like an act of reclamation, to bring up from the sunken hulks of these Bills their one real treasure—the promise of a statutory right to advocacy. That was a feature of the 2002 and 2004 Bills that many practitioners, quite rightly, viewed as one of the most positive proposals for a law fit for the 21st century.
The purpose of this amendment is therefore to ensure that all patients subject to compulsory powers under the Mental Health Act have a statutory right to an independent mental health advocate, that they are made aware of their right to independent advocacy when key decisions are being made in respect of their treatment, and that they have support if they allege abuse. The general case for advocacy for mental health service users is self-evident, and I shall not dwell on what is not a disputed matter. Although we must obviously not assume that mental disorder inevitably robs a person of their capacity to speak for themselves, psychiatric hospitalisation and its sequela is perhaps an unavoidably disempowering experience—especially when it is imposed through the coercive powers of mental health legislation.
The following evidence was given to the Joint Committee by James Hargreaves, a hospital chaplain:
“I have been working as a part time chaplain in a Community Health Trust ... I have often been struck by clients’ sense of bewilderment, confusion and anger during their first few days after admission. It seems to me that a comprehensive system of advocacy is vital particularly at this stage of treatment. There is a need for a greater depth of explanation of the direction the treatment is likely to follow, and of the implications of a section order”.
I add that the Mental Health Act commissioners continue, on their visits, to raise frequent questions as to whether, and to what extent, detained patients have been made aware of their legal status and rights under Section 132 of the Act. While the MHAC does what it can to make services fulfil their legal duties in giving patients information, even where services attend closely to that legal duty—and nurses are diligent in both explaining patients’ rights to them and providing written information—it can be no substitute for the potential empowerment of a good advocacy service.
With that in mind, this amendment is intended to achieve four important aims, which I will go through briefly. First, and most importantly, it will establish a statutory right to advocacy in the Mental Health Act. While the Government maintain that they are keen to increase access to advocacy through non-legislative means, this is not enough. Advocacy should play an important safeguarding role for detained patients and access to an advocate should be enshrined in law. There are a number of reasons for that: advocacy for detained patients is in its nature different from advocacy for informal patients, as it forms a safeguard against the improper use of powers against a person deprived of their liberty; an advocate can provide a means for the patient to exercise their right to appeal against decisions made about their care and treatment; and advocacy is a way of communicating their interests when they may lack capacity to do so for themselves. These are fundamental human rights, which surely must be upheld in law.
People admitted into hospital against their will are likely to be confused and fearful, distrustful of authority and feel out of control. At a point of crisis, the need for independent support is the strongest. It is logical that where government resources to invest in advocacy schemes are scarce, they are channelled into priority areas and to the most vulnerable patients. Therefore, a statutory right will ensure that advocacy is provided to patients at the point of crisis.
It is crucial that we tackle existing inequalities in the mental health system, particularly those relating to the significantly worse experience of people from black and minority-ethnic communities treated under the Mental Health Act. Providing advocacy is an important part of that solution. Culturally competent advocacy can improve therapeutic alliances and find culturally, socially and racially responsive resolutions to conflict where it arises. The Mental Capacity Act 2005 enshrines a right to advocacy for people lacking capacity through the independent mental capacity advocacy service, due to be implemented in April 2007. It is unacceptable for some patients lacking capacity to be awarded a statutory right to an advocate while those who lack capacity and are detained for their mental disorder do not have a similar statutory right.
Secondly, the amendment will ensure that patients are informed of their right to an advocate. The amendment specifies that there is a duty upon the appropriate authority to inform patients of their right to an advocate at various points during the period of compulsory treatment. It allows for the right to advocacy to be built into decisions made during compulsion, including treatment decisions, questions about the patient’s status as a detained patient and where the patient is particularly vulnerable, such as when he or she is detained in a police cell under Section 136, placed in seclusion, or is reporting abuse or a crime while in hospital.
For access to advocacy to be meaningful, it is crucial that patients are made aware of their right to engage an advocate. The right to advocacy must not be dependent on how conscientious individual members of staff are in informing the patient of the service. There should not be the opportunity to downplay the right to an advocate where staff feel that their time is short, or when the patient is strongly opposed to a proposed intervention and engaging an advocate might hold up decision-making. A right to be informed prevents advocacy being available only to people in the know or who shout the loudest, and avoids the potential for inequalities to emerge in accessing advocacy.
Thirdly, the amendment will extend the definition of a “qualifying patient” to include patients subject to police powers. Patients may be particularly distressed when they are taken from a public place, or after a policeman has entered their house with a warrant, and find themselves in a police cell or other alien environment under holding powers. An advocate in such an environment will be able to provide a friendly non-judgmental face, information about what has happened and what happens from that point on, information about the patient’s rights, and representation if the patient lacks capacity to express his or her wishes.
Fourthly and finally, the amendment will enshrine the right for patients to meet their advocate in private. As the chairman of the Mental Health Act Commission, whose major virtue is that we can and do visit and talk in private with detained patients at any reasonable time, I am very aware of the importance of a similarly statutory right of access for advocacy services.
Advocates should have the right to meet the patient in private, as set out in the 2002 draft Mental Health Bill, and as supported by the parliamentary joint scrutiny committee on the 2004 draft Bill. It is no good having statutory advocates who cannot get to their clients. I should note that, in its many years of visiting patients, the Mental Health Act Commission has not, to my knowledge, had any serious problem with the concept of a “reasonable time” to visit, although no doubt this has led to some lively discussions between staff and commissioners when we have appeared at night. It is important, however, that anyone vested with a statutory right of access should be bound to operate that right within reason.
I could go on, but noble Lords will be pleased that I shall not. I will finish by reminding noble Lords that the promise of a statutory right to advocacy, which has now been fulfilled for patients subject to the protections or powers of the Mental Capacity Act, addressed a demand of the mental health service user movement and of mental health groups and was seen as the most progressive aspect of past government Bills to enshrine a law fit for the current generation. We should fulfil that promise to the people who are the real concern of mental health legislation. Again, I wholeheartedly support the amendment.
I, too, strongly welcome these amendments, which seek to reinstate one of the best features of the 2004 draft Bill. The need for accessible, independent advocacy has been accepted in relation to mental capacity and it is crucial that it should be accepted in the field of mental health care. I have heard many moving stories, both from patients and still more often from their closest relatives, who may be the nearest relatives in the terms that we have talked about today or may be other close relatives—people who, when confronted by the bewilderment of mental illness, find themselves unable to cope or to understand. All of us who have had to care for people facing such a crisis, or who have faced such a crisis ourselves, know how bewildering and disorientating it is.
We also know how haphazard the care and advice provided in such circumstances is. Doctors and others who are responsible for the patient who is liable to be detained or to receive intrusive treatment are often unable to provide impartial advice in any way that will be heard by the patient. Time and again, the result is simply more confusion.
As we have heard, clergy are among those who are often called in at such times—hospital chaplains, police chaplains or parish clergy. We do our best and we can provide pastoral care, but that is no substitute for the independent advocacy that is sought by this amendment. It will provide support for vulnerable people to cope not only with their illness, but with a fear of authority, which may affect them deeply and lastingly into the future. I very much hope that we shall be able to add these clauses to the Bill.
It is like old times to be discussing independent advocacy, as it will be with patient and public involvement, which I look forward to debating with the noble Baroness, Lady Barker, in particular when the local government Bill comes to your Lordships’ House later in the year. I am grateful to the noble Lord, Lord Williamson, for allowing us to debate this matter. I should explain to him that my noble friend Lady Morgan has been sent to a centre for re-education and training, otherwise known as the Whips’ Office.
This is, of course, a very important matter. The speeches that we have heard were powerful and there is no doubt of the contribution that advocacy can make. It represents an important safeguard in helping to ensure that the patient’s voice is heard and that he is able to exercise his rights. The Government are committed to developing the advocacy services available to detained patients across the board.
We have included guidance to practitioners in the draft illustrative code of practice on the great value of advocates. It stresses the important help that advocates can provide to patients in understanding the questions and information being presented to them and in communicating their views to staff and practitioners. The draft illustrative code of practice also includes guidance on when and how practitioners should consult a patient’s advocate. Similar guidance will be included in the code of practice for Wales.
Also, there is no question but that we already have high-quality services and I pay tribute to those who work in advocacy services. Advocacy services are already available in all strategic health authorities, but I accept that there is work to be done to ensure that these services provide the right level of support to patients detained under the Mental Health Act. We have commissioned Durham University to develop a specialist training programme and standards for mental health advocates, as well as systems to support the commissioning of those services.
In answer to the right reverend Prelate and the noble Lord, Lord Patel—and my noble friend Lady Howells, who spoke to a similar amendment in a previous group—this work continues to take account of different needs and groups, working with advocates who specialise in working with children, older people, people with learning difficulties and people from black and minority-ethnic groups. Obviously, other groups may be identified in the future.
It is also being co-ordinated with current work to establish independent mental capacity advocates. Our intention was to develop, by non-statutory means, the vision of advocacy services for patients detained under the Mental Health Act. However, I recognise the strength of opinion here, so I will agree to consider the amendments over the course of the Bill’s passage. On that basis, I hope the noble Lord will agree to withdraw it.
I thank the Minister for that reply. We are always very grateful to hear that the Minister will give consideration between now and the later stages of a Bill. There will probably be quite a lot of time for that. We look forward to it; the longer it takes, the more likely we are to get what we want, I hope. I was very glad to hear that; the issue is sufficiently important to be thoroughly looked at. It has been on the table in earlier discussions, though not for this particular Bill. It is well known among those concerned with mental health that it is an important point in practice. However, in view of the assurance given by the Minister, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 39 to 41 not moved.]
Clause 25 [Community treatment orders, etc]:
[Amendment No. 42 not moved.]
On Question, Whether Clause 25 shall stand part of the Bill?
In Clause 25 and the other clauses and schedules grouped here, we have reached what is perhaps the final major area of controversy in the Bill: supervised treatment in the community. Before going any further I should say that the Minister need not be alarmed unduly by the fact that this is a clause stand part debate; it is not my intention to divide the Committee on this occasion. However, I think that a useful purpose would be served in Committee by avoiding a series of debates on a sizeable clutch of smaller amendments and concentrating instead on the broad issues of principle.
The Government’s intentions in promoting the concept of community treatment orders are, I believe, entirely honourable. They want to create a means of preventing re-admissions to hospital and to provide a less restrictive alternative to in-patient treatment. If we agree that those are good aims, there seem to be only two questions of any substance to be settled. First, will the policy have any unintended and unwelcome consequences? Secondly, will the policy work? As to whether it will work, the evidence for this is pretty thin. Such evidence as we have is, at best, inconclusive. The problem is that it is very difficult to draw comparisons between what happens overseas and what may happen here, as we are dealing with different mental health systems. In some countries where there are CTO arrangements in place, there is far greater support from community services than there is in Britain. Studies carried out in the USA, where CTOs are used in a number of states, prove very little. The conclusion of one major study said:
“There is no study that proves that a court order for out-patient treatment, in and of itself, has any independent effect on outcomes. No randomised clinical trials have examined the relative efficacy of involuntary out-patient treatment and assertive community treatment, the alternative with the best record of producing positive outcomes for people with severe mental illness”.
I am unaware of any other study that points to a more positive conclusion; the Minister may wish to correct me.
The point about relative efficacy is important. It could indeed be true that early intervention and assertive outreach are just as effective in achieving good outcomes as involuntary treatment. If so, those are surely the services we should be strengthening, rather than making patients wait until they reach a crisis and then forcing them to receive the services. There is a false logic at play here. Indeed, to the extent that service users found CTOs beneficial, it may in some cases have been because, as a result of the order, services were made available to them which they would have used voluntarily but were not given access to until they were compelled. If so, that is not a very good argument for the introduction of CTOs.
Do CTOs prevent readmission? A Cochrane meta-analysis of the data found no difference in readmission rates and calculated that it would take 85 CTOs to prevent one re-admission to hospital. A Canadian study reached a rather more positive conclusion. Another study in Western Australia found that CTOs increased the likelihood of readmission. Much depends on the attitude of the patient. Regrettably, in a further study, it was found that patients who lacked insight into their condition were less likely to consider community mandates to be fair and effective. Yet those are exactly the kind of patients targeted by CTOs, because they fail to comply with treatment.
If we need to worry about the evidence base for CTOs, we should be equally worried about their unintended down side. The first down side is that CTOs are likely to lead to an increase in the use of coercion. That, at least, is what the evidence currently suggests. It is a point of particular concern in the context of black and ethnic-minority patients. In Scotland, where CTOs were introduced with slightly different conditions, the anticipated total number of people who might need to be placed on a CTO was reached almost within six months of the provisions taking effect. Another recent study estimates, on the basis of the Scottish experience, that between 6,000 and 9,000 people are likely to have CTOs applied to them in the first six months. If that is right, the Government’s longer-term projections of use may underestimate the real numbers by a factor of two or three.
Unfortunately, the provisions in the Bill lead us to a very similar conclusion. They do not do enough to ensure that only a limited and strictly defined group of patients could be made subject to CTOs, which is what the joint scrutiny committee recommended. The criteria for making a person subject to a CTO are significantly wider than in other jurisdictions such as Australia and New Zealand, both of which have a much tighter definition of mental disorder and a broader range of exclusions. In Scotland, too, the definition is tighter.
By contrast, in the Bill we have not only a wide definition of mental disorder; we also have limited exclusions, a wide definition of treatment, wide entry criteria to a CTO and greater numbers of clinical staff, including occupational therapists, who can keep people under compulsion. If one adds to that what most of us acknowledge is a pervasive climate of defensive practice, the cumulative effect points to CTOs being used far more widely than Ministers are making out. We and many others wanted some clear reassurance in the wording of the Bill that CTOs would apply only to genuine revolving-door patients. But the Bill contains no such wording, and I cannot help feeling that that is deliberate.
It is not surprising that service users are fearful of these provisions. They see them as increasing their chances of being made subject to compulsion; they fear that compulsion will be used when people are not severely unwell; they fear that they will not receive what they need in the way of support; and, perhaps most of all, they fear that it will be difficult to come off a CTO because clinical staff will play safe to ensure compliance. The danger is that these realistic fears about CTOs will drive people further away from the services and treatment that they need. The delicate relationship between service users and doctors requires trust to keep it afloat. If the fear of CTOs is as I understand it to be, then the end result could be exactly the opposite of what we want to see—an increasing level of disengagement from mental health services and a higher risk of relapse and readmission to hospital.
I expect that the Minister will think me something of a prophet of doom, but I simply say to him that we have to base our thinking on the available evidence. Unless the Minister has some different evidence, the introduction of CTOs in the manner proposed seems to me to be a leap in the dark that carries huge risks. If the criteria for compulsion were narrower, and especially if we could somehow restrict the applicability of CTOs to revolving-door patients, I would feel a good deal easier. As it is, I have to say that the Government have further work to do.
I wish to add a few words to what has been said. In my view, the noble Earl has made a very strong case against the provisions for CTOs as they are described in the Bill. The Joint Committee set out its views very clearly at pages 70 to 72 of its report and I do not propose to repeat its conclusions here. I emphasise that the committee heard a great deal of evidence on this matter. We looked for evidence from abroad, and the evidence that we received supported the conclusions summarised by the noble Earl a few moments ago.
I emphasise the concern of the committee that, unless CTOs have some kind of finite time limitation, there is a real risk that patients will find it very difficult ever to be removed from a CTO. At lines 9 to 14 on page 19 of the Bill, subsection (3) of proposed new Section 20A makes it absolutely clear that community treatment periods may be extended initially for six months and then for a further period of one year. There is no particular objection to that, but it goes on to say,
“and so on for periods of one year at a time”.
That is precisely the kind of provision about which the committee was deeply concerned. It is precisely the kind of provision that could lead to the sort of cautious approach of which the noble Earl was speaking. We were not opposed in principle to CTOs with appropriate circumscription—that has already been discussed—but we invite the Minister to respond positively by saying that the Government will in some way revisit the possibility of CTOs being extended time without end.
I added my name to those who oppose the clause because I am concerned that the Committee is sleepwalking into compulsory community treatment orders without taking the evidence into account. As it is all on the record, I had better confess right at the start that I have changed my mind at least twice on these provisions. Like many others, I have at times thought that they might be a solution to a very restricted problem but, as they are currently outlined in this Bill, I do not support them. I hope that, in any case, Members of the Committee will appreciate that it is the mark of a proper scientist to change his or her view when faced with new evidence.
First, I want to talk about the problem that we are trying to solve. There are two possible reasons for supervised community treatment. The first is a belief that we will improve compliance with medication for the general well-being of people with severe mental illness. The second—let us face it, this is what the tabloid press would like us to do—is that we will reduce the incidence of violence and harm, specifically homicide.
The Government have already declared this to be a public safety Bill in part, rather than a mental health Bill pure and simple, so I shall talk about the violence issue. The Government may be surprised to hear that I find myself very near to their position on the importance of the violence and public safety issue. There is an association between violence and schizophrenia that is reflected not just in the homicide statistics but in the countless episodes of lesser violence and threats to family and others, which can ruin the lives of family and carers. What emerges from reviewing homicide inquiry reports involving patients with schizophrenia is an attitude problem by some general psychiatrists. I shall not be very popular with my colleagues for saying this but someone has to.
Violence in serious mental illness is like sex before Freud—we cannot talk about it openly and we want to dismiss or disown the risk. Service user groups do not like us talking about it either because it tends to heap stigma on the majority of innocent law-abiding, non-violent patients. So doctors sometimes use any lack of clarity in the law to avoid taking the initiative, even when there is a long history of previous violence and they are seriously worried.
I have had a case drawn to my attention in which a psychiatrist consulted his defence union about his personal position because he was worried about the risk that a patient posed, yet he did not request a Mental Health Act assessment. That patient went on to commit two stranger homicides shortly afterwards. There are plenty of other examples where there has been reluctance to intervene, despite lots of warnings. I have mentioned previously in Committee the desperate messages sent by the parents of Andrew Robinson to his psychiatrist and to social services about their son’s increasingly frightening symptoms in the weeks and days before he killed a young occupational therapist—calls for help that were totally ignored. These are not isolated cases.
The great progress in the NHS over the past decade, for which I congratulate the Government, is that mental health patients have been listened to more and their wishes have been respected. There is no doubt that there has been a dramatic improvement in services. But that can lead to team members feeling there is something wrong or improper about compulsion or coercion, even for those who really need it. The question, therefore, is not whether there is a problem but how best to fix it, and here I part company with the Government's approach as it is likely to be entirely counterproductive.
I know that the Government hope that, although supervised community treatment may not make much difference on its own, it may serve to change the culture and increase the confidence of doctors in intervening early when necessary. I would almost be persuaded by that if it were not for the fact that the enhanced care programme approach has not helped, supervised discharge—the 1995 new legal provisions—is almost never used, and guardianship is rarely tried. Why is that? It is because they require effort, a lot of intervention, increased resources and a focus on a few very difficult people, which can detract from services for other people. We need a real willingness to grasp when serious risk is present, but that is not the case at the moment.
I know that colleagues of mine, such as Professor Tony Maden, who is a supporter of these proposals, are pressing our college to formulate a violence reduction strategy. I heartily applaud that goal. The difference between us is whether these provisions will be different from any of the others without a substantial change of heart about the proper role of psychiatry. I would be better persuaded if there were evidence from elsewhere that they really helped.
Supervised community treatments are there to make sure that someone can be brought into a psychiatric unit to be given medication by force. There are no treatments that can be imposed on unwilling patients except injectable medications. The only injectable medications we prescribe in the long term in psychiatry are anti-psychotics. There are no compulsory pills, no oral liquids, certainly no compulsory psychological supports or interventions that we would consider ethical.
I want to dispose of the notion that we are dealing with anything except a limited number of people with schizophrenia. They are the only people we might catch. I shall talk about the homicide issue first because the evidence is clear that we are highly unlikely to reach sufficient numbers of the right people. Let us consider the marvellous report from Professor Louis Appleby and his colleagues in the excellent National Confidential Inquiry into Homicide and Suicide by mentally ill people. It is a splendid piece of work, published in November, which most of us will have looked at.
Every year about 50 mentally ill people commit homicide. Only 30 of those have a lifetime risk of schizophrenia and another 15 or so have depressive disorders. The rest have a wide range of conditions that would not be amenable to supervised treatment. Of the 30 a year that we are now talking about, a third have never been in contact with services and of those who have, only 10 have ever been compulsorily admitted. We are perhaps looking at about 20 people whom we might want to catch.
Obviously one cannot supervise the treatment of those who do not go to services. I remind the Committee that of those 20 whom we are trying to catch, two or three are already in hospital receiving medication. Another one or two a year will be young women who have killed their children during a period of puerperal psychosis. I suggest that they will not be on supervised community treatment. It is notoriously difficult to try to catch people very soon after giving birth to try to prevent that. Let us put aside the people whom we will catch.
The national confidential inquiry report is fascinating because it points out that of those patients in contact with services, many were not even receiving a formal care programme. Of those who were on enhanced CPA in the community there had been no effective interventions by services at the point of crisis which preceded the homicide.
I am sorry to go on but I hope the Committee will note that I have not intervened previously this afternoon. Let us look at the population figures. Normally in implementing a public health measure, which the new clause is, the Department of Health adopts an epidemiological rather than an anecdotal approach to policy. We shall consider only men for the moment, since it is predominantly young men who perpetrate homicides of the kind that we are trying to reduce and the violence that we wish to try to avoid. The one-year prevalence of schizophrenia in men of the right age—under 50—who are living with this condition in the population is about 10 per 1,000. That is about 600,000 people across the nation, from whom we are trying to identify the 20.
In any one year about 114,000 will be receiving care and about 500,000 will not. Of those who are not receiving care, about 200,000 will have been known to services at some point but will no longer be under supervision. Up to 300,000—possibly with rather mild conditions—will not be known to services, but there will be some who have not been brought to the attention of services.
I hope that I am getting across the message that identifying the “at risk” population is pretty difficult even if psychiatrists' risk assessments were rather better than they are. The accuracy of clinical prediction is low. For every six patients identified as at high risk of committing a violent act in the future, only one will go on to commit such an act. So, we are thinking of putting in place a measure, which in my opinion is likely to have no impact on rates of homicide or serious violence. Raising a bob or two on alcohol taxes would have a dramatically increased numerical impact on homicide rates compared with this. We will restrict an awful lot of people for dubious reasons. The epidemiological evidence that the Department of Health normally requires for implementation of a disease screening programme for breast or cervical cancer, for example, simply does not stack up.
I shall not repeat the evidence that the noble Earl, Lord Howe, outlined, except to add that I think there have been two randomised control trials—rather bad ones—including only about 400 people. They did not demonstrate any improvement in health service use, social functioning, mental state, quality of life, satisfaction with care or offending. Interestingly, the risk of victimisation felt by patients was improved, which was largely because of the improved delivery of services to those people, as has already been mentioned.
I realise that lack of evidence of efficacy is not the same as evidence of no efficacy. But what is proposed here is a measure on which the jury is still out. We have heard that it would take 85 orders to prevent one re-admission, 27 to prevent one episode of homelessness and 238 to prevent one arrest, although these are American figures and it is extremely difficult to know. It might take about 5,000 or 6,000 to remove one offence of serious violence or homicide. They will not be an effective alternative to good care. It is difficult to conceive of another group to whom we would subject these sorts of measures—to curtail the freedom of 85 people to avoid one admission to hospital or 238 to avoid one arrest.
Others have spoken today about the wide scope of these powers in relation to people who will derive no benefit from them and the fears that they engender in service users, particularly in black and minority ethnic groups. One thing that has convinced me that good services are the answer is the early intervention of services. The noble Baroness, Lady Neuberger, spoke about that some time ago when I had the great honour to chair this initiative for the King’s Fund. I witnessed the change in services that came about in Lambeth when we increased their acceptability. Services in Lambeth were improved by the provision of specialist, sensitive services that were much more usable by young black people who were more willing to take their symptoms to the community. It was a demonstration that services can be designed to attract and engage the right people.
In summary, if we are to have such measures we must accept that we are delivering a wild card, which may not be very effective. It may do no more than serve as a temporary reassurance. But when the next suicide report comes along, we will say, “Why wasn’t this person on a community treatment order? Why was he not receiving it?” The chances are that there is not a hope of getting someone on an order or very few will get on them.
If we are to have community treatment orders, we must make sure that they are difficult to get on to, that people on them have reliable services delivered to them, and that getting off them is at least a bit easier than it is now. Someone could carry on being on a community treatment order pretty well in perpetuity. We must remember too that 20 per cent of people with a first episode of schizophrenia will not relapse. One in five people who have a first breakdown will never have another. If people on a first breakdown are put on supervised community treatment, we have to be clear that we are not subjecting them long term to these horrible drugs without real benefit to the individual and society.
It is with some humility that I follow that speech. I pay tribute to the courage of the noble Baroness, Lady Murphy, in throwing down a challenge to some of her professional colleagues in that way. I am afraid, however, that I come to a different conclusion from the noble Baroness and other noble Lords on some of the evidence we have all seen. I continue to find it surprising that there remains so much opposition to the idea of supervised community treatment orders.
The idea totally adheres to the principle that people should receive the care they need in the least restrictive setting. The Bill introduces a change reflecting the fact that clinical practice has changed since the 1983 Act was passed. In 1983, most acute mental health services were provided in a hospital. The world has moved on, and we have a much wider range of community-based mental health services. Sometimes in this debate, I do not think the full extent of that change has always been acknowledged by some noble Lords.
One thing that has not changed as much as we would like, however, is the continuing number of revolving-door patients. They leave hospital, disengage from mental health services, do not continue with their treatment, their health deteriorates and they end up compulsorily detained in hospital. We may have differences of view about the numbers involved, but that is the cycle we are trying to deal with. If there is an alternative, we ought to use it. For reasons I shall go into in more detail, the supervised community treatment order provides an option.
Not only we, but other countries have discovered that there is an alternative. As I said at Second Reading:
“We also know that some form of compulsory community treatment is established in jurisdictions in New Zealand, Australia, Canada, Israel, Sweden, Belgium, Portugal and Scotland”.—[Official Report, 28/11/06; col. 656.]
Other countries, including parts of the United States, are also considering it. I am not arguing that they cannot all be wrong—although one might assert that—and I fully acknowledge that there is a mixed range of reports on this experience. A number of noble Lords have drawn attention to that fact that some of the reports are inconsistent—some are not so well founded as others—and different experiences are being reported from different countries. There is also evidence in some reports that the methodologies are somewhat suspect. I accept all of that but, if we look at the range of comparative studies, there is plenty of evidence of significant therapeutic benefits to patients, greater treatment compliance and some reductions in rates of hospital admissions. I do not want to overstate those reports, but that evidence is available. There is also evidence of patient and clinician support for these overseas developments and experiments.
Academics will no doubt continue to argue over methodologies. The one thing I learnt as a Health Minister is that plenty of academics will take a different view from other academics; if I may be unkind, that is sometimes how to develop a reputation. Whatever the detailed reservations about particular studies, they do not set aside, in any kind of meta-analysis of these studies, the clear positives I have mentioned. It is perhaps significant that other countries have not ceased using CTOs, and have continued to see benefits in using them.
I rather agree with those who argue that the net of compulsion in community treatment should not be cast too wide. The Government have listened on this, however, and tried to restrict the use to a clearly defined and clinically identifiable group of patients. They have put the group to whom CTOs apply in the Bill. If we believe that the drafting is not as good as it might be and can be improved, perhaps we should discuss that further. But it does not damage the underlying case for community treatment orders.
The Minister may want to say a bit more on that, but I shall confine the rest of my brief remarks to three key issues: safety, numbers of CTOs and resources. On safety, my clear recollection is that distinguished forensic psychiatrist Professor Tony Maden’s 2006 review of homicides by patients with severe mental illness concluded that there is a need for legal powers allowing compulsory treatment in the community for patients with a serious mental illness and a history of non-compliance with treatment. Common sense, expert opinion and overseas experience all point in the direction of some form of compulsory community treatment for a small, defined group of patients. It seems rather irresponsible of us, as legislators, not to face up to some of that evidence. I am not arguing that the net should be cast wide or that we should not try to improve the drafting of the Bill to get to the groups we are concerned about. However, the underlying thrust of the Bill—that we need community treatment orders for a group of patients—is in the interests of public safety and the evidence for it is pretty conclusive.
Some pretty high figures have been bandied about for the number of people likely to be affected. The noble Earl, Lord Howe, rightly raised this. It is important that we should not, as others have said, sleepwalk into a change where we do not know what the implications are in terms of figures. In my speech on 28 November, I said that the number of those subject to a CTO was likely to build up to, not immediately be,
“3,000 to 4,000 per year over a five-year period”.—[Official Report, 28/11/06; col.730.]
That is, by about 2013. That compares with 40,000 mentally ill in-patients a year and is substantially more modest in scale than the 15,000 or more that some have suggested. If in-patient services are so hard pressed and unsatisfactory, as has sometimes been suggested in these debates, I do not understand why proponents of that view should not also support a proposal likely to bring some relief to the in-patient area through CTOs. That is a logical consequence of this change.
Finally, on resources, it currently costs the NHS about £1,200 to £1,300 a week to keep a mentally ill patient in hospital. As I recall from my extensive earlier ministerial briefings, the cost to the NHS of a CTO is likely to be substantially under half that. You do not need to be an incredible mathematician on this: it seems more likely to free up resources for other patients and their treatments. Some have argued that CTOs will be funded by drawing resources from other community services, but I have seen no compelling evidence to support that view. It is more plausible that CTOs will free up in-patient costs for use in the community than the other way around. However, I accept that it will be important to be convincing at a later stage about how CTOs will work and how they will be carried out without detriment to other community services. I wonder whether the Minister can throw more light on this issue, probably not today but at a later stage.
I have tried to examine this issue from a variety of angles: the impact on patients involved, civil liberty safeguards, public safety, cost to the public purse and overseas experience. Taking these aspects in the round, there seems an overwhelming case for the Government’s measured approach to CTOs, although I do not doubt that with a bit more attention we may be able to secure some improvements in the drafting that give more reassurance. But the underlying case seems to me to be made, and in the public interest we need to pursue the policies and the approaches set out in the Bill.
CTOs could be useful for people coming out of prison or hospital who have a serious long-term illness such as schizophrenia if they are used to see that these patients take their medicines. This has happened in New York, where a directly observed treatment—DOT—system worked to stop drug-resistant tuberculosis. So often people who have been in institutions cannot cope when they come out into the community. They forget to take their medicines and disaster follows. Therefore I agree with what the noble Lord, Lord Warner, has just said.
This is the one amendment on which I want to make a short contribution. In principle I welcome the Government’s intention to introduce community treatment orders. I agree with the noble Lord, Lord Warner, that there are without doubt situations in which a community treatment order will be the least restrictive alternative open to a patient and thus in the patient’s best interests. There are other situations when a CTO would be justified on ethical grounds—the benefits of such an order having been weighed up for carers in particular, but also for the community, on the one hand; and the loss of quality of life, at least in the short run and maybe in the very long run, for the service user on the other.
In 1982 the debates on the Mental Health Bill as was gave much less thought to the needs and interests of carers than should have been the case. I was heavily involved at that time and I am now very conscious of the gap. I welcome this opportunity to redress the balance. I therefore wish to explain my support for this amendment. The noble Baroness, Lady Murphy, has spoken eloquently about the homicide issue so I will not touch on that directly. My starting point is that the Mental Health Act 1983 makes provision in Section 17 for the responsible medical officer to grant a detained patient leave of absence from hospital subject to conditions seen necessary by the clinician. This section is already useful in providing a graduated return to home life and as a trial release in which a patient’s readiness for discharge can be tested. Section 25, as we all know, is virtually not used. The problem with Section 17 of course is the lack of enforcement powers. If CTOs were eliminated from the Bill, the psychiatrists’ cupboard would not be completely bare.
The question we have to ask ourselves is whether it is more ethically sound for the psychiatrist and team to have too few powers at the time a detained patient is discharged from hospital, as at present, thus depending upon good community care to deal with risks, or whether it is preferable for those powers to be excessively wide-ranging—and that, I am afraid, is how I still see the powers as described in the Bill, despite the comments of the noble Lord, Lord Warner. Which of these two alternatives would be preferred? There are many angles to this argument. The noble Earl, Lord Howe, referred very effectively to the international evidence so I will not go into all of that. The key point is that CTOs apparently have not achieved the hoped-for results but rather the contrary, so it is perhaps not surprising that I and others involved in the mental health services have concerns that community treatment orders as envisaged in the amendment may adversely affect the development of community care. This is really at the root of the problem. Will these CTOs improve things for patients or will they actually make things worse?
I want to refer again to the Government’s national service framework and the valuable contribution being made by early intervention teams, crisis resolution teams and assertive outreach teams. The purpose of all these, as noble Lords will be aware—and I think they have been introduced in every trust across the country—is to enable service users to be assessed and treated in the community wherever possible, rather than being admitted to an in-patient hospital unit. More and more services are becoming available, such as crisis houses, where very intensive care can be provided for people day and night rather than having them in hospital. For these crisis houses you do not need a CTO or assertive outreach teams or anything else. I believe all this excellent work could be undermined by CTOs and for me this is the nub of the problem. I was challenged by one of the advisers to the Government recently asking what I would do if we were not to have CTOs. The answer is really good community treatment and services.
An important aspect of all this is the stigma associated with mental health problems and with the secondary mental health services. The Government have shown considerable determination to tackle stigma, largely through the work of their social inclusion unit and through these community teams. The last thing service users need is the new Sections 17A to 17G, which would inevitably put pressure on professionals to impose community treatment orders more than they would necessarily wish, and certainly more rather than less.
It will take only one tragic case to drive up the use of CTOs. If one service user is not placed on a CTO and subsequently commits suicide, this will result in the inevitable inquiry and public criticism of the professionals involved for not taking advantage of the legislation. Is it fair to ask professionals to risk this public criticism when the imposition of a CTO will protect their back? That is the crucial point about limiting the application of CTOs—to protect the professionals from the pressure they will be under to impose these CTOs when really it is not justified. The points made by the noble Baroness, Lady Murphy, are crucial here.
It is relevant to consider the very different approach to life-threatening physical illness. The Royal College of Psychiatrists pointed out that only 8 per cent of patients with potentially fatal heart disease take the statins that they have been prescribed, but no one criticises the doctors when those patients die. For mental health patients the decision not to take medication may be a very understandable one. The side effects of these drugs that people are required to take can be extremely unpleasant. If there is no risk to others, should we be critical of mental health professionals? Why should we criticise the medical professionals when somebody at home decides that they have really had enough? Of course professionals have a duty to prescribe and to encourage service users to take medication, but is coercion the right way to deal with this? The answer lies in high-quality community services that are being developed thanks to this Government. This is what the Government and trusts are working together to achieve. The Government are setting the strategy; the trusts are really working at it. Surely this is the way to prevent suicide. I understand that where there are risks to others it is a somewhat different matter.
In summary, my view would be to err on the side of limiting the professionals’ powers to those in the 1983 Act. My preferred option is a form of words which will find the right balance between the needs and interests of service users, carers and communities. I was very encouraged by the words of the noble Lord, Lord Warner, who was indicating that we have to find the right form of words to achieve the balance. I would therefore support a rewording of the CTO clause to include a requirement that a community treatment order be approved only if there is evidence that the service user has in the past persistently failed to comply with medication. It should not be just one admission—that may be the only one—but persistent failure to comply with medication. It should also be stated that the consequences of the failure to comply with medication have been so serious for the service user, their carers or their community that there really is a reason for imposing the CTO.
I want quickly to raise two further issues with new Sections 17A to 17G, and I am sorry that I have taken too much of the Committee’s time. The first is the assumption that a patient could be discharged from hospital and placed under a community treatment order by a responsible clinician and approved mental health professional, neither of whom needs to be trained as a psychiatrist. A patient would surely not be placed under a CTO unless assessed as needing to continue to take anti-psychotic medication. We are not talking about behavioural treatments or pills, as the noble Baroness, Lady Murphy, said. The CTO decision requires a full understanding of the long-term consequences of the medication prescribed, the likely side effects over time and possible alternative medication regimes, as well as the consequences of non-compliance. Those are all decisions for which psychiatrists—and, in my view, only psychiatrists—are trained.
Other members of the multi-disciplinary team will of course have important views and knowledge of the service user to contribute to the decision to impose a CTO and the conditions that it would be appropriate to impose under new Section 17B. What we need in the Bill is clarity: that if someone is suffering from a mental illness—we are not talking about learning difficulties or personality disorder—a CTO should not be imposed other than by the people who understand what they are doing; that is, psychiatrists.
Finally, I cannot agree with new Section 17B(3)(e) under which one of the conditions that may be specified by a community treatment order is that,
“the patient abstain from particular conduct”.
This language appears to be drawn from the ASBO legislation and does not belong in mental health law.
I ask the Minister to consider these matters and the cogent points made by other Members of the Committee. I hope he will agree to discuss amendments that will achieve the desired balance between the needs of the service user, carer and community a balance that would reinforce the progress made under the Government’s forward-looking national service framework policies and other radical new developments.
I have a couple of additional points. Most of the points have been made, but I want strongly to back the noble Baroness, Lady Meacher, on the history of non-compliance as regards medication. That issue is central. It does not appear in the legislation and, to the best of my knowledge, it does not appear in the code of practice.
I say to the noble Lord, Lord Warner, that the reason why there is opposition to the measure is twofold. First, treatment may be given in the least restrictive setting, but it is still compulsion. That is at the heart of much of the opposition. Secondly, the evidence base is unclear. He will know that for some months his former department has been sitting on a paper containing evidence of the effectiveness of community treatment orders which it has not published. The fact that the department brings forward such a serious and widely drawn piece of legislation that will have an impact on large numbers of people without its own evidence base is naturally a cause for suspicion. Can the Minister tell us when that evidence is likely to be published?
I want to mention the code of practice in two respects. Paragraph 12A.23 sets out the conditions as they appear in the Bill, but at the end there is a telling phrase. It states:
“The above is not an exhaustive list of conditions which may be applied—there may be others depending on the patient’s individual circumstances”.
Therefore, it is not just that we are going to compel people to abstain from certain conduct; it is that these CTOs may be widened, using the code of practice, in any way that clinicians see fit. It is a remarkable statement to appear in a code of practice.
Finally, under the code of practice there is a requirement on practitioners that if they are to grant leave of absence for more than seven consecutive days, the responsible clinician should first consider whether the patient should go on to SCT. Why? If the issue is about compliance, if it is based on the judgment of the clinician, why should they have to do that? There will be patients for whom leave of absence is the best therapy treatment; there will be patients for whom SCT may be the best therapeutic basis. The existence of that statement leaves one to suspect that there is a strong possibility that SCTs will become the preferred option for clinicians and that they will be allowed to get away with it whether or not it is appropriate.
Those are just a few of the very many reasons why this idea is probably one of the most unpopular that the Government have proposed in a very long time.
We have had an interesting and useful discussion and I am grateful to the noble Earl, Lord Howe, for proposing that we debate the Question on clause stand part in this way. It is an opportunity for all of us to reflect on some of the important issues raised. As my noble friend Lord Warner suggested, some of them fall to be discussed within the overall context of the Government’s wish to take community treatment forward. I will attempt to arrange before the Report stage an opportunity for Members of the Committee to meet our advisers to discuss CTOs and the way we expect them to operate. I am sure that we would all find that useful. As the noble Lord, Lord Carlile, suggested, it is one of the major pillars of the legislation and no wonder we are having an extensive debate today.
As my noble friend Lord Warner said, far from this being the negative measure that it has been painted, it brings mental health law in line with what has been achieved in modernising mental health services. I say to the noble Baroness, Lady Meacher, that far from seeing this as a conflict with the welcome developments in community services, we see it as marching hand in hand with them. The Government see it as one of the important elements in dealing with the revolving-door cycle—that of admission to hospital and treatment leading to improvement, discharge, relapse and readmission. There is no question but that, in terms of that extremely vulnerable group of people, anything we can do to provide the kind of support that will stop that happening must be seriously considered.
This is a difficult and complex area, but we are attempting to put in place a framework that enables professionals to treat patients effectively in the community while protecting their rights. There is no reason why the existence of community treatment orders should frighten people and make it less likely that they would seek treatment. Patients can go on supervised community treatment only after a period of detention in hospital. Therefore, such treatment is not an issue at the outset of illness. Nor do we see it as damaging the relationship between professionals, patients and the clinical team. We believe that supervised treatment will help to foster trust; it will help compliance with treatment in the community and make it easier for professionals to sustain a therapeutic relationship with someone if they remain well rather than if they keep relapsing.
The noble Earl, Lord Howe, asked about perverse incentives. I recognise that noble Lords have expressed a fear that the Government’s aim is to bring into place a system of compulsion at the whim of clinicians and that many more people will end up on supervised community treatment. That is not what we seek to do. It is clear that all of us have trawled in the same pot of evidence. We can sometimes find what we want to find, but there is no question but that there are examples of favourable perceptions of community treatment orders among clinicians and patients. The noble Baroness, Lady Barker, has referred to the work that has been commissioned by my department. I did not recognise what she said about the research being sat on. My understanding is that it is currently being peer-reviewed. I do not yet have a date when that is likely to be completed, but I will let the noble Baroness know when that date is made known to me.
As far as the numbers are concerned, the estimate that we have given is 3,000 to 4,000 over the next four or so years. These are estimates; an entirely new regime is being proposed. Decisions to place a patient on a supervised community treatment will be made at the discretion of the clinician responding to individual patients and their needs. Clearly, a large number of factors will influence the uptake of supervised community treatment, but we do not recognise the high figures that have been quoted by other organisations. It will be critical to monitor the use of supervised community treatment to assess its uptake in the first year of use, which will of course inform further guidance advice that may be given to the health service. We will certainly want to do that.
Some noble Lords have expressed concern that a community treatment order can be made too easily and that the criteria for supervised community treatment are too broad. That is not what we intend. We have set a high eligibility threshold. Patients must have been so ill that they have been detained in hospital for treatment under Section 3. That is not a hurdle lightly cleared; it goes further than what happens in other countries that have gone down the route of community treatment order-type approaches. Strict criteria must be met before a patient can be placed on a community treatment order. Among other factors, a patient must remain liable to recall to hospital and be subject to compulsory powers under the Act, so the decision-maker must be satisfied that the compulsion is necessary for the patient to receive the treatment that he needs. They must be satisfied that there are factors such as the patient’s previous history of non-engagement and non-compliance that make it unsafe to treat the patient in the community voluntarily, so that the only recourse if things go wrong would be to resection the patient under the Act’s powers.
I understand the debate about whether the definition used should confine the provision to what noble Lords have described as a “revolving-door group”. Of course we will debate that at further stages of the Bill, but it would be fair to say that, if one were to limit the availability in the way that noble Lords have proposed, that would discriminate against those patients experiencing their first period of compulsory treatment and whose condition had improved to the point where, although they still required treatment, they no longer needed to be detained in hospital. There is a genuine debate to be had if noble Lords propose a further tightening of the definition.
Let me make it clear that the patient’s responsible clinician cannot make this judgment on his own. An AMHP must agree that all the criteria are satisfied and that a community treatment order is appropriate for the patient. If the AMHP does not consider, for example, that the treatment order would work because of a patient’s family circumstances, he or she will not agree to it. The noble Baroness, Lady Meacher, expressed concern that a doctor would not necessarily be involved, in relation to the definition of a responsible clinician. We debated that point on Monday. A responsible clinician will be a highly skilled and experienced professional who has been approved and trained for that particular role; they will have been selected for the patient because they have the right skills to match the patient’s particular treatment needs. The responsible clinician will have the overall responsibility for the patient’s case and will have the best overall knowledge of the patient’s current condition. Of course, the patient will already have been through the process of detention under Section 3—
Does the Minister believe that a psychologist or a nurse could be adequately trained to assess a psychotic patient, the long-term effects of medication, the side effects and so on? If a nurse or psychologist had the training and experience that they would need in order to make or carry the responsibility for the decision about a CTO, they would in effect become a psychiatrist. Does he believe that a little training of a psychologist or nurse would set them up to make such decisions?
Of course, if such a decision were made arbitrarily without the benefit of advice or discussion with the clinical team as a whole, I could understand the point that the noble Baroness is raising. My point is that the purpose of a responsible clinician is that they are the person with overall responsibility for the patient’s case. Of course they will have access to other professional advice; I am sure that the noble Baroness would not think that it would be otherwise. The responsible clinician is the person with overall responsibility and that is why he or she is the person to make the initial judgment.
Some noble Lords have referred to restrictions. The measures are not designed to impose unfair and unjust restrictions on patients in the community. They set an essential framework for the clinical management of patients in the community and for the protection of patients and others from harm. Clearly the engagement with patients, families and carers is important. The code of practice sets out in detail what that means for patients subject to supervised community treatment. A strong and comprehensive package of safeguards is in place for the protection of supervised community treatment patients. The mechanisms to safeguard those patients are exactly the same as for those patients detained under the Act. In taking forward this provision, we believe that we have placed in the Bill the checks and balances that noble Lords are looking for. There is no question that patients will be trapped under compulsion; our proposals go hand in hand with service improvements and the development of community services in general.
This has been an extremely useful discussion. I hope that between Committee and Report we will have an opportunity to discuss these issues more informally. I hope, too, that I have reassured the Committee that, while we are convinced that this is the right way forward, we want to engage with noble Lords in making sure that we have this absolutely right.
I agree with the Minister that this has been an extremely good debate and I express my appreciation to all noble Lords who have taken part. It was evident from my earlier remarks that the worry that I have is of both principle and practice. On principle, the simple point that can be made is the comparison between those who are mentally ill and those who have a physical illness. The position for the mentally ill and the risk that they present is, I suggest, very different from the position for people with, let us say, TB. Patients with certain types of TB are a definite risk to the public; despite this, there is no power to treat them compulsorily. That is very different from so-called high-risk mentally ill patients, the majority of whom are still very unlikely to harm anyone. That thought colours my attitude to these proposals as a matter of principle in quite a major way.
We then proceed to issues of practice and evidence. A lot was said about the evidence; the noble Lord, Lord Warner, argued that CTOs have been shown to be effective. I would be very interested to see the evidence on which he bases that assertion, because I certainly have not seen it. I guess that it is to be expected that the Minister and the noble Lord, Lord Warner, would read the existing evidence somewhat differently from the way I and others would.
I am grateful to the Minister for that. If in doing that he can respond to the issue raised by the noble Baroness, Lady Barker, about the study commissioned by the department on the worldwide effectiveness of CTOs, that would be extremely informative. We understand that study to be complete.
No one has really mentioned the human rights aspect of this. The Joint Committee on Human Rights has expressed its concern about CTOs, particularly in relation to the power of the clinical supervisor to impose conditions without any power for the service user to object. I come back to the fears of patients, which I referred to in my opening remarks. There is an additional concern about the range of controls put on a patient who is to be subject to a CTO. I am thinking particularly about the power to require a patient to abstain from certain activities. The obvious questions are how that will be policed and who will have responsibility for the policing. Will that fall on the family? It is that, in part, that makes service users dub the CTO a psychiatric ASBO. That is a major worry that we need to bear in mind.
Perhaps not in that case, but there is a whole range of conditions that can be applied, as we have heard from other noble Lords, and that is where the worry centres.
The noble Lord, Lord Warner, suggested that the cost of the policy would be less than some commentators fear. I have my doubts about that. Purely as a matter of logic, it seems to me that all patients who are currently detained in hospital need by law to be there. Therefore, it follows that CTO patients will add to the numbers of those in hospital.
The logic flows along the lines that somebody might be released earlier under a CTO than they might otherwise have been under a Section 3 order. There is at least as much evidence for my view of how this will happen as there is for the contrary view. I suggested that there might be savings in in-patient care because people could be released at an earlier stage.
That is a very helpful clarification. As has been said, it remains to be seen how the policy will work in practice. I am sure that the Government will get their policy in the end, one way or another.
One part of the Minister’s reply was very revealing. He argued that CTOs should not necessarily be confined to revolving-door patients. He suggested that limiting the CTO to such patients would discriminate against the first-time-episode patient. I am concerned by that. Any measure designed to deal with revolving-door patients has to discriminate against patients on their first admission. If the noble Lord is talking about legal human rights discrimination, I think that he is simply wrong. It is not discrimination when you have two discrete sets of patients—the first-timer and the revolving-door patient—because they are different and have an entirely different status. I shall have to reflect carefully on that part of his reply.
The experience of CTOs in Australian jurisdictions, as shown recently in an Australian Senate report into mental health across Australia, is that the only things that make a difference are the quality of services and timely intervention. The need for services to be in place before a system of CTOs is put in place was emphasised by the experts from Australia and New Zealand at a recent London conference. We would do well to bear that point in mind.
I should like to conclude on a constructive note. Noble Lords referred to the views of Professor Tony Maden, and I think that those views should be explored. If the Bill were to provide for CTOs to be limited to a certain group of people, we might have the basis for a constructive dialogue. The conditions that I would look for, which I understand that Professor Maden is also advocating, would be threefold: that there should have been a history of serious violence in the patient; that there should have been a previous relapse because of the patient having stopped medication; and that the patient should be identified as a continuing high-risk patient. If the Government were prepared to look at that proposal, it might well be possible to find a way forward that will command broad support. I say that having taken on board everything that noble Lords have said in this debate.