House again in Committee.

Schedule 3 [Supervised community treatment: further amendments to 1983 Act]:

43: Schedule 3 , page 58, line 31, at end insert—

“In section 121 of the 1983 Act (Mental Health Act Commission), after subsection (4) insert—

“(4A) The Secretary of State shall, after consultation with the Commission and with such other bodies as appear to him to be concerned, direct the Commission to keep under review the care and treatment, or any other aspect of treatment, of all patients in hospitals, independent hospitals and in such other settings as he may decide who are subject to sections 4A and 4B of the Mental Capacity Act 2005.

(4B) Where the Commission has good cause to suspect that a patient who is neither liable to be detained under this Act, nor subject to safeguards under sections 4A and 4B of the Mental Capacity Act 2005, is being deprived of his liberty as a consequence of admission to a hospital or an independent hospital, it may—

(a) keep under review the care and treatment, or any other aspect of treatment, of that patient; and (b) raise any concerns with the appropriate authority.””

The noble Lord said: I shall speak also to Amendment No. 44.

Section 120 of the Mental Health Act 1983 empowers the Mental Health Act Commission to,

“keep under review the exercise of the powers and the discharge of the duties conferred or imposed by this Act so far as relating to the detention of patients or to patients liable to be detained under this Act”.

The commission’s powers of visiting, interviewing patients in private and demanding access to documentation stem from this overarching remit. I should note for the benefit of noble Lords unfamiliar with the detail of this legislation that “liable to be detained” refers here essentially to patients who remain subject to the detention powers of the Act but who have been given leave of absence from the detaining hospital. Therefore, the commission’s monitoring remit and visiting powers are at present limited to patients who are subject to the detention powers under the 1983 Act.

From the very start of the commission’s existence, the situation has thrown up uncomfortable problems for its visiting commissioners. In the course of undertaking their statutory duties in visiting hospitals to interview detained patients, Mental Health Act commissioners will frequently become aware of matters of concern relating to informal patients. Although aware that the Mental Health Act Commission remit does not extend to informal patients, commissioners are understandably loath to ignore unlawful, negligent or abusive practices that are apparent to them. Therefore, the practical problem for the MHAC and its commissioners is how legitimately and effectively to raise concerns about vulnerable patients who may be denied legal rights or protections, or are subject to abuse or neglect.

The most frequently encountered cause of concern is that of unlawful deprivation of liberty of informal patients, sometimes called de facto detention. I will outline two of many examples that I could give to illustrate the sort of situations that commissioners encounter. First, on a visit to an independent hospital that predominantly cared for learning disability patients, a Mental Health Act commissioner found that many staff did not know which patients under their care were detained under the Act and which were informal. The commissioner met with and interviewed two patients at the unit who were not detained before she realised their legal status. Some 37 patients, of whom 21 were legally detained, resided at the hospital in locked apartments, either as sole occupants or in groups of up to six patients. Patients left these apartments, in some cases even to go to the smoking room, only under staff escort.

It was apparent that the majority of staff were inexperienced and had received little training in the legal aspects of their role. The clinician in charge of the patients’ treatment made it known to commissioners that he viewed detention under the Act as unnecessary and stigmatising for his patients. Yet those informal patients whom the commissioner had interviewed by mistake showed an alarming lack of understanding of their rights. One patient’s compliance with medication and general care was questionable, but he had little understanding of his rights regarding consent to treatment. Another patient, whose Section 3 detention had recently been rescinded after more than a decade of uninterrupted detention under the Act, said that she was “excited” that the section had been removed, yet the commissioner gained no sense that she appreciated how her rights might have been different, or that she was treated now any differently by the staff.

My second example involves a commissioner who walked past a locked area containing a single informal patient who was isolated from patients and staff, despite a risk assessment recommending that he receive two-to-one nursing care. The area in which he spent his time was without furniture or apparent means of stimulation or activity. He appeared to have been given a makeshift rattle for diversion. The commissioner noted that inside the room there was an open drain and neither a toilet seat nor soap, towels or even a door to the toilet area. The toilet and bedroom area were cold and smelt of urine and faeces despite, according to the ward manager, regular cleaning. The service manager reported that he was unaware of the situation until we brought it to his attention. This example is just over one year old.

Those are just a couple of situations with which, according the commission’s remit, it has no business to be concerned. In such cases, commissioners may choose to raise their concerns directly with the clinicians or hospital management, who are responsible, although commissioners may not do so officially under Mental Health Act Commission powers. On a very basic level, it may be difficult for a Mental Health Act commissioner to ascertain the facts behind the situation that appears to be of concern. Many hospital managers welcome any comments or observations about their services and may be co-operative in clarifying the situation of patients when asked. However, a recent addition to the Mental Health Act Manual, a reference book to which every Mental Health Act practitioner regularly refers, states:

“Ward managers should be advised not to engage in discussions with commissioners about the circumstances of patients who are not detained under the formal powers of the Act”.

So we have to walk past people such as those I mentioned in the examples.

The Mental Health Act Commission has a concordat agreement with the Healthcare Commission to share relevant concerns and information, and the latter is empowered to visit and investigate. However, not only does that cause delay and duplication of effort; the Healthcare Commission staff are not as expert as commissioners on the workings of the Act. Furthermore, while the Healthcare Commission may choose to follow up on the limited information that a visiting Mental Health Act commissioner might be able to pass on to it, the Healthcare Commission is not primarily a visiting body in the sense that the commission is.

The law currently prevents the Mental Health Act Commission, as a visitorial body, dealing on the spot with issues of basic human rights such as those that I outlined in my examples. Indeed, with a quite dreadful irony, the law at present appears to require Mental Health Act commissioners to walk past those patients who may be incarcerated unlawfully in dirty, cell-like rooms on the grounds that formal powers under the 1983 Act have not been applied to deprive that patient of his or her liberty in a lawful manner.

I shall provide the Committee with a further example of this dreadful irony from the Healthcare Commission’s investigation into Merton and Sutton learning disability services, published today, which noble Lords may have seen reported on the front page of the Guardian. One of many examples provided states that,

“one man who had no speech, sight or hearing was tied to his wheelchair or bed for up to 16 hours a day”.

The 2003 Mental Health Act Commission biennial report stated that learning disability patients, among others, might be most likely to be subjected to this kind of mechanical restraint. But the commission also pointed out that many of these patients are not formally detained and therefore are not subject to oversight from its visiting commissioners. The safeguard of the Mental Health Act Commission is therefore extended to those who are lawfully detained but not to those who are unlawfully detained. My amendment seeks to change that sorry state of affairs.

My amendment is simple in its effect. First, it would extend the Mental Health Act Commission’s remit to cover patients whose hospital treatment is subject to the new legal safeguards proposed under the Mental Capacity Act by the Bill. This would mean that the commission’s visits to hospitals would be able to keep under review the exercise of powers and duties in relation to all patients who are formally deprived of their liberty, whether it is under the Mental Health Act or the new Bournewood provisions of the Mental Capacity Act.

Secondly, it would allow that when the commission has good cause to suspect that a patient is being deprived of his or her liberty unlawfully—that is, without the use of either the Mental Health Act or Mental Capacity Act powers—it may also keep that patient’s care and treatment under review and raise its concerns with the appropriate authority, whether that is the hospital managers, the Healthcare Commission or any other body. For the purposes of keeping under review the care and treatment of all these patients, the amendment will specifically enable the commission to visit and interview patients in private and to inspect documentation.

I should emphasise that the amendment does not propose that the Mental Health Act Commission’s visiting activity be widened to include care homes, although there would be scope for such widening of the remit within the discretionary powers given to the Secretary of State. The intention behind this amendment is, rather, that the commission would be able to concern itself with de facto detained patients and Bournewood patients encountered in the NHS and independent-sector hospitals that it currently visits.

Finally, the Minister will no doubt know from his brief that the particular extensions to the Mental Health Act Commission’s remit called for here could be achieved within the discretionary powers already provided to the Secretary of State within Section 121(4) of the 1983 Act as it stands. It is now over 20 years since the Mental Health Act Commission first requested that the Secretary of State exercise those existing powers.

Over the past two years the Mental Health Act Commission has been in detailed discussions with the Department of Health, which has been broadly supportive, subject to legal advice, of widening the remit of the commission to include de facto detained patients. Unfortunately, this has not resulted in any change, as they have been unable to find the time to deal with the matter because of other pressing business. I understand that the Department of Health has been rather busy considering various changes to the 1983 Act over that time and that the Minister would want to consider my amendment in the light of other changes being made to the overall legal framework. My amendment may therefore serve as a model of one way to go about this. If the Minister prefers a different approach, the passage of the Bill is a good opportunity for that to be debated in Parliament and, if necessary, tested according to the will of this House and another place. I beg to move.

45: Schedule 3, page 58, line 31, at end insert—

“After section 121 of the 1983 Act insert—

“121A Mental Health Act Commission: notification

(1) Hospitals and independent hospitals in which patients are liable to be detained under this Act shall notify the Commission of every hospital admission to specify—

(a) the age and sex of the patient; (b) the ethnic group to which the patient belongs; and (c) the patient’s religion. (2) The notification shall specify whether the patient is admitted voluntarily or subject to this Act, or if, subsequent to voluntary admission, the patient is detained under this Act.

(3) Hospitals and independent hospitals in which patients are liable to be detained under this Act shall notify the Commission of every discharge—

(a) from the provisions of this Act, or (b) from the hospital. (4) In the case of notifications under subsection (3)(a) above, the notification shall specify whether the patient is subject to a community treatment order and where the patient is subject to a community treatment order the hospital shall notify the Commission when this ends.

(5) Hospitals and independent hospitals shall notify the Commission of the death of any patient liable to be detained under this Act or subject to supervised community treatment detailing—

(a) the cause of death; (b) the age and sex of the patient; (c) the ethnic group to which the patient belongs; and (d) the patient’s religion. (6) Further notification requirements may be specified for the purposes of this section by regulations made by the Secretary of State.

(7) Before making any regulations for the purposes of this section the Secretary of State shall consult such bodies as appear to him to be concerned.””

The noble Lord said: I want to explain to your Lordships the background reasons for this amendment. It may surprise the Committee that there is no notification process for admissions, detentions and discharges for people detained under the Mental Health Act. That gives me great concern, given the implications for individuals of losing their liberty under civil powers without the benefit of court sanction. All detentions occur locally without independent oversight from a monitoring or inspectorate body. I am sure that if the Minister were to set up a new mental health monitoring body today, he would undoubtedly wish to give it this oversight.

Despite the resource constraints, the Mental Health Act Commission interviews 6,000 patients every year out of some 46,000 detentions. Clearly the majority of detained patients—40,000—do not benefit from a check on the legality or probity of their detention. Even the 12,000 or so second opinions that the commission arranges every year do not ensure the wider protection of the fundamental rights and freedoms of all patients.

Of course, some discharges, following a mental health review tribunal hearing, are recorded. But that affects only a minority of patients. Surprisingly, the MHRT does not keep information on the ethnicity of patients who come before it, so it is not possible to assess any differential impact of MHRT decisions, despite that being contrary to the DCA’s own duties under the Race Relations (Amendment) Act. As I said on Second Reading, the lack of a notification procedure means that we have little information on the impact of the Act on any patient group, especially those with heightened vulnerability, such as children, old people and people from black and minority ethnic groups. I shall deal with them briefly in turn.

Ensuring that the rights of service users—especially children and older people—are protected demands that we know where patients are, how many there are, their ethnicity and their specific health needs. The first but crucial step towards ensuring this protection, and with it the ability to monitor the provision of appropriate care, is the notification of all formal admissions to the MHAC. In addition, a statutory notification of all deaths of patients, whether detained or not, will provide much needed and accurate information on unexpected deaths. I remind the Committee that there are approximately 380 deaths per annum of detained patients when in care, of which about one-quarter are “unnatural deaths”—suicide, other suspicious circumstances, and so on. Despite inquiry after inquiry—for example, that into the death of David Bennett—every year there are still one or two patients who die while being physically restrained. When will we learn the lessons from those unnecessary deaths?

We have had much debate during these sittings on the needs of children and young people. The detention in hospital of any young person must be a cause for concern, and yet we have no way of knowing exactly how many children are detained. What we do know—and this is from a voluntary monitoring arrangement that the MHAC had in place for the past three years—is that at least 1,308 young people, some as young as 12, were detained on adult wards. That equates to around 370 each year, which is probably a considerable underestimate.

When speaking to Amendment No. 27 I expressed in great detail my concern about those young people and the appalling level of service they receive, especially young girls, 80 per cent of whom were placed on mixed adult wards where they were vulnerable to sexual and physical assault. Nearly 27 per cent of the young people detained on adult wards were from black and minority ethnic groups—at least three times what we might expect from demographic statistics. Evidence from a survey that the MHAC undertook found that 62 per cent of all children and young people admitted under the Act were placed on adult wards. These children were not only placed in an inappropriate environment that did not cater for their basic educational, recreational and social needs; they were in places where they were liable to be bullied, have illegal drugs forced on them, and where they undoubtedly had to witness some distressing and violent scenes.

Older people are one of the most vulnerable groups in the mental health care system. They—especially those with dementia and learning disabilities—are often subject to unacceptably low standards of care that result in abuse. This group is the most likely to be de facto detained without the benefit of the protections of the Mental Health Act. We have just discussed these issues under Amendment No. 43. Again, we can be effective in looking after this group of people only if we know how many older patients are detained in hospitals and independent facilities. Currently we do not know.

Finally, I remind the Committee of what I consider to be one of the most significant remaining scandals in the health and care system, which I spoke about on Second Reading and which I will continue to raise. I refer to the significantly disproportionate rates of admission and detention of people from black and minority ethnic communities in our mental health settings. In preparing for the introduction of this Bill, the Department of Health undertook a race equality impact assessment as required under the Race Relations (Amendment) Act. Although I chaired the advisory committee on that impact assessment, the committee was not responsible for the resultant report. As noble Lords know, that report has been much criticised within the black and minority ethnic community because it did not reflect some of the more serious concerns about the operation of the present Act, concerns which can be clearly understood when we consider the disproportionate rates of admission and detention. Because of the lack of a notification procedure, in 2005 the Mental Health Act Commission with the Healthcare Commission set up and implemented “Count Me In”, the first national mental health and ethnicity census. We also undertook one in 2006. This annual census, which I devised, is expected to be repeated each year up to 2010.

The census confirmed extremely worrying statistics on the disproportionate admission and detention rates for black and minority ethnic patients. For example, black African and black Caribbean people are 300 to 500 per cent more likely to be admitted to mental hospitals and 30 to 40 per cent more likely to be detained under a section of the Mental Health Act. The group termed “Other Black” is most worrying. They are most likely third and fourth generation young black men and are 14 to 18 times more likely to be admitted than white men of the same age range.

We are becoming all too familiar with these appalling statistics. A number of noble Lords have already referred to them, but they are not the whole story. Although figures for the black community have been most publicised, nearly all minority ethnic groups have disproportionate rates of admission to some extent. For example, people of Irish descent and those from Bangladesh and Pakistan are approximately 30 per cent more likely to be admitted than white British. People of mixed heritage and the “Other Asian” group are 150 to 300 per cent more likely to be admitted. In fact, recent research by my team at the University of Central Lancashire confirms that young south Asian, particularly Muslim, men are beginning to replicate the experiences of young black African and Caribbean men. If we do not resolve this, in a few years we may find that we have another group with extremely disproportionately high admission rates.

For the Chinese community and, to a lesser extent, the Indian community, admission rates were significantly below average—much lower than might be expected for Chinese people. In this case, the implication is that our mental health services are not responding adequately to the needs of the Chinese community.

The variation in these figures goes to the heart of the requirement for a comprehensive notification process, especially in relation to religion and first language. Let us not forget that the “Count Me In” census is a one-day snapshot. It is expected to take place annually for only the next three years and is not intended to make up for the lack of a statutory notification system. Despite the fact that ethnic monitoring has been a mandatory requirement for all in-patients since 1995, the overall state of collection, recording and use of data are disgraceful. We know from the Mental Health Act Commission’s regular visiting that the collection, recording and use of data are not being sustained on a day-to-day basis at ward level. Yet the census managed a 98.9 per cent collection of ethnic monitoring data by providing training, advice and support to providers. So we know it can be done. A statutory notification procedure would have the same effect—getting providers to do what is required of them—and thus would ensure that the information on which to base service developments is available.

Over the past three years the Department of Health has implemented the mental health minimum data set, and that must be welcomed. Unfortunately, it is neither comprehensive nor accurate. Ethnicity recording still falls far short of the census: it does not provide the data we need on deaths of patients or include much of the information required for adequate patient monitoring, such as information on language and religion. Even if such information were provided, provision is not statutory. A statutory notification procedure would enable us to track and analyse what is happening to the young and the elderly and to all vulnerable groups. It would act both as an early warning system and as a catalyst for further action. I beg to move.

47: Clause 31, page 31, line 40, at end insert—

“( ) In section 70 (applications to tribunals concerning patients subject to hospital and guardianship orders), at the end insert—

“(2) An application under subsection (1) may be made on the patient’s behalf by his nearest relative.””

The noble Earl said: I will also speak to Amendment No. 48. Under the Mental Health Act 1983, the nearest relative is one of the major safeguards of the patient’s rights. The person who is identified as the nearest relative has extensive powers in relation to the detained patient in both civil and criminal cases. Where a patient has been admitted to hospital for compulsory medical treatment via the courts or via prison, the nearest relative has the power to apply to the mental health review tribunal on his behalf. This is an important safeguard, especially where the patient lacks capacity or is simply too unwell to exercise his rights to appeal against detention.

However, this does not apply to restricted patients, who under the current Act have no nearest relative. This means that many restricted patients who fail to exercise their right to appeal to the tribunal will not have their cases legally reviewed for three years, which is the point at which the Home Secretary has a duty to refer them to the tribunal. Only restricted patients lack the safeguard of having a nearest relative and I believe that there is a strong case for putting them in the same position as other Part III patients. That is what Amendment No. 47 seeks to do.

The purpose of Amendment No. 48 is to give the mental health review tribunal the power to order the transfer and leave of absence of restricted patients. That proposal originates from a recommendation made by Professor Genevra Richardson’s expert committee. She said about the current arrangements:

“Our concern first sprang from our awareness that it was a considerable inhibition on moving patients across or down levels of security within the hospital system … we now have a tribunal that can order the discharge of someone with a restriction order but we do not have a tribunal that can order the essential precursors to discharge, the leave and the transfer. So we felt that there was a potential problem there with compliance with Article 5(4)”.

At the moment, the power to order transfer and leave of absence rests solely with the mental health unit of the Home Office. That is an administrative body whose decision-making has been widely criticised for rejecting the risk assessments made by professionals and for over-estimating levels of risk leading to patients being stuck in inappropriately high conditions of security. Many feel, and I am one, that it would be more appropriate for such decisions to be taken by a judicial rather than an administrative body.

Underlying that is the desirability of providing an enforceable right to treatment in the least restrictive environment, consistent with the needs of the patient and the need to protect the public. The problem of patients stuck in inappropriately high conditions of security is long standing and, while it is welcome that the Government plan to increase the provision of medium and low secure facilities, the decisions surrounding these transfers are of such importance to the individual’s liberty that they really should lie in the hands of the mental health review tribunal.

The tribunal is best placed to make decisions about the level of security that a patient requires, having heard all the medical evidence with representations from the patient. So I put it to the Minister that it is both wasteful and unjust not to allow the tribunal to act on that information. Of course I do not say that the Home Office should not continue to have oversight of the individual restriction order cases. The Home Office is the place where the continual history of a long-term dangerous patient is located and it should retain that oversight role. However, the decision-making arrangements need to be revised. I hope that the Government will be sympathetic to these amendments and I beg to move.

49: Clause 31 , page 32, line 4, at end insert—

“( ) In section 78 (procedure of tribunals), after subsection (9), insert—

“(9A) The Lord Chancellor shall provide for membership of Mental Health Review Tribunals to include the following groups of people—

(a) service users; and (b) carers; and to take full account of issues of diversity including ethnicity, gender and religion.””

The noble Earl said: This amendment and Amendment No. 50 deal with the membership of the mental health review tribunal, which rarely includes people who have experienced a mental illness or others who may have a lot to offer from their experience of mental illness and mental health services. There is a strongly and widely held view that as a matter of principle the lay member of the tribunal should wherever possible have experience of mental health services as a user or carer or a volunteer or employee who works with and can represent any of those groups.

That would be consistent with, for example, employment tribunals, which contain representatives of both management and employees. It would also be consistent with increased service user and carer involvement in the provision of mental health services. For example, many mental health trusts such as the South West London and St George’s Mental Health NHS Trust are recruiting and employing service users in clinical teams.

I also propose that tribunals should include members from the black and ethnic minority communities. If we think it important, as I am sure it is, that the tribunals are able to take full account of a person’s culture and circumstances, I suggest to the Minister that that idea should be adopted as standard practice. Cultural differences can create difficulties between patient and clinician and thus cause problems in diagnosis and treatment. In some black communities symptoms of mental illness might be manifested through the suggestion that there might be possessing spirits or that inexplicable misfortunes have occurred. Tribunals need to take full account of a person’s culture and circumstances and the language in which they most often communicate.

BME representation on the tribunals can therefore be extremely helpful, wherever that is appropriate. That is especially important when we bear in mind that at present, African-Caribbean people are more likely to be detained and receive higher doses of medication than the population as a whole.

It is worth reminding ourselves that the Government’s action plan Delivering Race Equality in Mental Health Care includes among its goals for 2010 less fear of services among BME communities, a reduction in the rates of compulsory detention of BME service users, and a more active role for BME communities and BME service users in the planning and provision of services. Appropriate BME representation on tribunals would play a significant part in meeting those goals.

Tribunals should also specifically contain at least one person of the same gender as the person whose case is being heard. There are particular gender issues to consider, including, in respect of medication, sexual functioning, menstruation and risks to a foetus during pregnancy.

Equally, where a tribunal meets to consider the needs of children and young people under 18, it surely must include the expertise required to determine those things. As has been said already, children and young people under 18 are not adults; they process and react to issues in a different way. Normally they are dependent on adults for their daily living arrangements, and very often those adults are their parents. Practitioners who specialise in child and adolescent mental health will have the ability to assess the young person’s developmental level and social circumstances and be aware of their educational needs when determining whether the young person requires compulsory treatment or should be discharged.

Where the child or young person is subject to aftercare under Section 117, at least one member of the tribunal should have specialist knowledge of child and adolescent mental health services and children’s services and what should be made available to under-18s when placing conditions prior to discharge.

I hope that the Minister will look constructively on these proposals. I beg to move.

51: After Clause 31 , insert the following new Clause—

“Referral to tribunal by hospital manager

After section 66 of the 1983 Act insert—

“66A Referral to tribunal by hospital manager

(1) Where a patient who is admitted to hospital in pursuance of an application for admission does not exercise his right to apply to the Mental Health Review Tribunal under section 66(1) above, the managers of the hospital shall, before the expiration of the period for making such application, consider whether—

(a) the patient lacks capacity to decide whether to make such an application; and (b) there is any good reason why such an application should not be made. (2) In considering whether there is any good reason why an application under subsection (1) above should not be made, the hospital manager shall have regard to the wishes of the patient.

(3) Where the hospital manager reasonably believes that the patient lacks capacity and that there is no good reason why an application under subsection (1) above should not be made, he shall refer the patient’s case to the Tribunal unless an application has already been made.””

The noble Earl said: The purpose of the amendment is to address a significant gap in the mental health review tribunal system in respect of patients who do not apply for review of their cases because they lack the mental capacity to make their own decisions. Although such patients enjoy a right of appeal to the mental health review tribunal, in practice the right is not exercised because the patients themselves fail to appreciate the options available to them. In certain cases this has meant that mentally incapable individuals have received inappropriate treatment or endured wholly disproportionate restrictions without the benefit of effective review because no application was made on their behalf.

The amendment seeks to remedy this protection gap by imposing a duty on hospital managers to assess patients who have not exercised their right to apply to the tribunal and determine if there is any reason why an application should not be made, having particular regard to whether the patient has the mental capacity to take such a decision themselves. The draft clause creates a presumption that hospital managers should refer such cases to the tribunal unless there are good reasons not to. The duty on managers to assess non-appealing patients, together with the presumption that referral should be made, would help to ensure that patients lacking capacity would enjoy the benefits of the tribunal review. At the same time, the use of a presumption would also avoid the dangers of automatic referrals of all patients lacking capacity as there may well be circumstances when a patient lacking capacity has none the less clearly expressed a wish not to undergo the appeal process and its associated assessment procedures. I beg to move.

52: Before Clause 35 , insert the following new Clause—

“Obstruction

After section 129(2) of the 1983 Act insert—

“(2A) Any person who offers any inducement or makes any threat with a view to improperly influencing any decision required to be made by a person under this Act shall be guilty of an offence.””

The noble Earl said: The purpose of this amendment is to extend the scope of the offence of obstruction of persons performing functions under the Act to include inducements or threats, if made with the intention of improperly influencing a decision. The rationale for this broadening of the offence is that it would strengthen the position of approved mental health professionals in resisting pressures from managers or more senior colleagues to act in a particular way. The pressure would have to be improper. In other words, it would not preclude the strong expression of legitimate professional opinions, but would include any threat to the AMHP’s job security or promotion prospects.

This is part of a wider issue about the independence of AMHPs. There is a widely held view that recruitment of NHS-employed health professionals as AMHPs will further exacerbate the erosion of independence that AMHPs should have from the hospital and the doctors, a process that is already occurring as a result of the secondment or transfer of approved social workers to mental health trusts. The ASWs are, technically, still employed by the local authority while acting in their statutory role, but in many cases their managers have also been seconded or transferred to the trust, so the independent role of local government in the compulsory admission process, which has been a basic element of that process since 1959, is becoming largely a fiction.

As a result, the process no longer meets the current human rights standard for the making of decisions involving loss of liberty, in that the two most powerful decision-makers, the ASW and the consultant psychiatrist, may well be close colleagues in the same team, both of them responsible for the trust that runs the hospital to which the patient would be admitted. The Government acknowledged that at the beginning of the review of the legislation in 1998, and their solution was to require all initial decisions to be confirmed by an early tribunal hearing. Now that this proposal has been abandoned, it is essential that corrective action is taken to ensure that the process meets accepted standards for impartiality and objectivity.

As part of that, the legal position of AMHPs needs to be strengthened to protect them from improper influence from trust managers or more senior trust colleagues. The Government have dismissed that concern, but, having spoken to members of the Mental Health Alliance, I have no doubt whatever that it is a real issue. The amendment would ensure that AMHPs are, and are seen to be, independent of the doctors and the hospital, that their decisions cannot be overruled by the local authority and that they are able to exercise their professional judgment, free of improper influence. I beg to move.

Of course, it is a different matter if a healthcare professional or other NHS or local authority employee seeks to influence decision-making improperly through bribes or threats, but existing legislation makes such behaviour an offence. Such incentives would amount to misconduct under an employee’s contract of employment and could lead to disciplinary action. It could also amount to harassment under the Protection from Harassment Act 1997. Behaviour intended to stop an AMHP, or any other professional, from making the independent decision that they are required to make under the Act could contravene Section 129(1)(d) of the Mental Health Act. That prevents someone obstructing a person in the exercise of their functions under the Act. Clearly, there are already legal provisions that make the improper influence of a public servant an offence. In addition, such behaviour would be extremely bad practice and should be properly addressed in employers’ behavioural standards and professional codes of conduct.

I note the concerns of the noble Earl about independence. We believe that training for key professionals will address the independent decision-making functions of individuals under the Act. Training for approved clinicians, who will take on the current functions of the responsible medical officer, will cover the role of the AMHP, and particularly the AMHP’s duty to make an independent decision about whether an application should be made. The training and approval criteria for AMHPs will stress the important skills required to express an independent view.

The noble Earl spoke of the circumstances under which professionals who consider whether a patient should be detained should work in the same team. I noted his concerns. The code of practice for England will state that an AMHP should not be in a direct line-management relationship with either of the examining doctors; but to say that they must all work in separate teams goes against years of attempting to try to integrate services and could lead to unnecessary delays in assessing a patient.

Social workers increasingly work within combined social services health teams. In future, teams are likely to be combined in other ways, such as in-patient and crisis services. One of the advantages of broadening the professional groups that can become AMHPs is that it will be easier for crisis resolution and home treatment services carrying out an urgent assessment to progress that to Mental Health Act assessment, without having to involve a professional from outside the team, which can cause distressing delay and repetition of assessments for patients. In addition, requiring the AMHP and examining doctors to work in different teams could make it more difficult to identify appropriate assessors, causing distressing delay for patients.

I believe that the Mental Health Act and the wider legislative framework, in conjunction with professional codes of conduct and employers’ behavioural standards, are sufficient to guard against improper influence of professionals making decisions under the Act without the need for additional legislation. Therefore, I invite the noble Earl to reconsider the amendment.

53: After Clause 36 , insert the following new Clause—

“Right to move hospital

After section 19 of the 1983 Act (regulations as to transfer of patients) insert—

“19A Right to move hospital

(1) All patients and their families must be informed that a patient can apply to move from one hospital to another if there is a good reason to do so, taking into account their family, cultural or medical needs and wishes.

(2) All applications by patients shall be recorded.

(3) If an application is refused reasons shall be provided to the patient in writing and, subject to the wishes of the patient, to the nearest relative and any relatives (as defined in section 26) as he shall specify.””

The noble Earl said: The amendment brings us back to an issue to which we have referred a number of times during Committee; namely, the particular difficulties encountered by mental health patients from black and ethnic-minority communities. Inequality in mental health services between black people and the majority white population has been the subject of debate and study for decades. It is well documented that people from BME communities, African and Caribbean people in particular, fare worse under the British mental health system than under many others. Most ethnic minorities tend to live in cities, but patients from ethnic minorities are often transferred to hospitals in rural areas, where there are very few black staff, which often leads to black patients feeling alienated.

A black patient who has lived in an urban area all his life and who is then transferred to a remote rural hospital could well find it alienating and frightening, especially as staffing in rural areas is rarely diverse. Recommendation 19 of the report of the David Bennett inquiry stated:

“All psychiatric patients and their families should be made aware that patients can apply to move from one hospital to another for good reason, which would include such matters as easier access by their family, a greater ethnic mix, or a reasoned application to be treated by other doctors. All such applications should be recorded. They should not be refused without providing the applicant and their family with a written reason”.

The Government accepted this recommendation and made it a priority policy area in their response to the Bennett inquiry report and in the Delivering Race Equality in Mental Health Care action plan, published in January 2005. However, since its publication, the action plan has been beset with controversy, not least because the £16 million allocated for the implementation of the programme has not reached targets set out in the report. Prompted by the Mental Health Alliance, I therefore propose that this provision should be set out in statute to ensure that it is prioritised by policy-makers. It is also crucial that the right to move hospital is clearly stated in the Mental Health Act to ensure that clinicians and hospital managers are left in no doubt that it has statutory force which must be followed.

The Government’s response accepted in principle that every request should be considered carefully and receive a reasoned response that takes into account the needs of the service user and their assessed best interests. A BME patient's wish to be close to their family, or to be cared for in a more ethnically mixed environment, should be listened to, recorded and met unless there is a good reason not to meet it. It is good practice for refusal to be explained in writing. That is the simple purpose of this amendment. I beg to move.

54: After Clause 37, insert the following new Clause—

“Places of safety

(1) Section 136 (mentally disordered persons found in public places) of the 1983 Act is amended as follows.

(2) In subsection (2) for “72 hours” substitute “24 hours”.

(3) After subsection (2) insert—

“(3) Notwithstanding subsection (1), a police station must not be used for a place of safety under this section unless the circumstances of the case are exceptional.

(4) Where a police station is used as the place of safety the person must be—

(a) as a matter of urgency examined by a registered medical practitioner and interviewed by an approved mental health professional and necessary arrangements made for his treatment or care; or (b) transferred to another place of safety for that purpose.” (4) After subsection (2) insert—

“(5) The patient may be taken by, or by a person acting on behalf of, a constable or approved mental health professional, from one place of safety to another but the total period of detention must not exceed 24 hours.””

The noble Earl said: We come now to a matter of considerable concern to many in the mental health community—the use of police cells as so-called places of safety. Under Section 136 of the Act, the police have a power to take a person who, in a public place,

“appears … to be suffering from mental disorder and to be in immediate need of care or control … to a place of safety”.

One definition of a “place of safety” under the Act is a police station. A person can be held under that power for up to 72 hours. He need not have committed any offence, but simply to have behaved in a way to give the impression that he was mentally ill and a danger to himself or to others.

The main concern here is that a police station is not a therapeutic environment for someone experiencing acute mental health problems. The police have little training or expertise in looking after people in this condition, especially people who may be unpredictably suicidal. There is often no ready means of keeping detained individuals under observation and a person’s state of mental health can deteriorate quite quickly. There is also the widespread feeling that police stations, with their implication of wrongdoing, are inappropriate places for the management even of very disturbed mentally ill people. That feeling is reflected in the National Service Framework for Mental Health, in the current code of practice and in numerous Mental Health Act Commission reports.

The problem is that, although everyone agrees that it is a bad idea for police cells to be used for this purpose, they nevertheless are being used in that way regularly. In fact, it is estimated that police cells are used in about 80 per cent of occasions when Section 136 powers are invoked. That statistic is especially relevant to the African and Caribbean communities. Black people experiencing mental health problems are more likely to have contact with the police than people from other backgrounds are. The reasons for that are not straightforward; in some areas, part of the blame lies in poor levels of co-operation between the police and the NHS, and the failure of the NHS to take responsibility for such situations.

The results are troubling. Nick Hardwick, chair of the Independent Police Complaints Commission, estimates that 50 per cent of deaths in police custody have involved people with mental health problems. There are, perhaps, three key points that the IPCC made in its evidence to the Joint Committee. First, it said that police stations should be used as places of safety only as an absolute last resort under wholly exceptional circumstances. Secondly, it said that a duty should be placed on the relevant health authority to assess need and provide appropriate facilities. Thirdly, it said that 72 hours is far too long a time to be in a police station before a medical assessment is carried out.

The Police Federation would like to remove police stations from the legal definition of places of safety altogether. I unfortunately do not think it possible to go that far, but the Act should include a requirement that the place of safety must, wherever possible, be a psychiatric hospital or other therapeutic environment. Where a police station is used, there ought to be a clear requirement in the Act either to arrange an assessment or else to transfer the person to hospital within the shortest time possible. The amendment suggests a 24-hour maximum.

The Act does not currently allow patients to be moved from one place of safety to another, which seems quite extraordinary. The consequence is that vulnerable people experiencing acute mental distress are left languishing for hours while the police locate two doctors and an approved social worker to undertake a Mental Health Act assessment, even if a hospital bed is available. At the very least, the law ought to be made clearer on this point, because the ambiguity in the wording of the Act on the legality of transferring patients between places of safety has given rise to uncertainty.

I need hardly tell the Minister that there is also a human rights dimension to all this. In 2002, the Joint Committee on Human Rights had some pretty trenchant things to say on the subject and recommended that healthcare trusts should have a statutory duty to take responsibility for and look after people detained under Section 136.

The case for these changes is, I believe, very strong. I hope that the Government will look constructively on the amendment and, accordingly, I beg to move.

56: After Clause 37, insert the following new Clause—

“Ill treatment of patients

(1) The 1983 Act is amended as follows.

(2) In section 127(3)(a), leave out “six” and insert “twelve”.

(3) In section 127(3)(b), leave out “two” and insert “five”.”

The noble Baroness said: This is a very brief point, which has been proposed to me by patients’ groups, who feel that the penalties for ill treatment are derisory. As noble Lords know, prosecutions for ill treatment of mental health patients are very rare. We understand that this is because of the numerous factors that go into producing an abusive situation, particularly in institutions, which we are all too aware of in light of the Orchard House report.

Occasionally there is indeed one person at fault. I have seen many cases where these people have been self-selected into working with vulnerable people because of the power that they can exert over the lives of the vulnerable. Some quite horrendous cases come to light. Then there are the exceptional cases which really must be prosecuted. It seems to patients’ groups that we should have realistic penalties. These people need rooting out, particularly from services, before they can do harm. They are people for whom prosecution is appropriate and for whom real penalties are needed. I beg to move.

57: After Clause 37, insert the following new Clause—

“Repeal of section 141 of the 1983 Act

Section 141 of the 1983 Act is hereby repealed.”

The noble Baroness said: This amendment calls for the repeal of Section 141 of the 1983 Act and it is strongly supported by the Disability Rights Commission and the mental health anti-stigma charity, ok2b.

Section 141 currently discriminates against MPs with mental health problems in that it contains a power to remove them from their job on mental health grounds. It provides that, if an MP is detained under the Mental Health Act, the Speaker of the House has to be notified and, and as the noble Baroness, Lady Murphy, pointed out, the MP has the distinction of two doctors specially appointed by the Royal College of Psychiatrists being sent to examine him or her. If the MP is still detained after six months, his or her seat becomes vacant. However, if an MP is unable to attend Parliament or hold constituency surgeries because of treatment for a physical illness, no such provisions apply.

Under the employment and office-holder provisions of the Disability Discrimination Act, it is unlawful to sack someone simply because they have undergone a period of hospitalisation. If someone is experiencing mental distress, the correct approach is to make reasonable adjustments—for example, to give them time off and allow a gradual return to work. MPs are excluded from the office-holder provisions of the legislation but we should surely ensure that the same process applies.

The current provisions are not only discriminatory but they make it harder for MPs to be open about experiences of mental health problems, which reinforces stigma. That is not only damaging for them—living in fear of others discovering a mental health problem causes unnecessary fear and stress—but it also means that the opportunity to act as a role model for others with mental health problems, showing that it is possible to attain leadership positions, is missed.

In 2005, the well-being charity, Together, conducted a survey of MPs' experiences of mental health. It concluded:

“Sir Winston Churchill experienced depression, referring to it as his ‘black dog’, and nevertheless led Britain effectively through the Second World War, but contemporary politicians are still likely to fear ridicule and discrimination if they talk about their own mental health problems. It is perhaps not surprising that no sitting Westminster MPs have felt able to speak publicly about experiencing mental ill-health, even though our anonymous survey shows that several MPs—perhaps as many as 60—have had mental-health problems”.

The organisation ok2b has inquired of the House authorities whether Section 141 of the 1983 Act has ever been used. It would appear that it has not. In the circumstances, not only is the section out of keeping with modern thinking about how best to support people with mental health problems but it also appears pointless.

I am of course aware that the draft mental health Bills proposed revised provisions for MPs, which would have extended to Members of the devolved legislatures. They offered some improvement of the current provision but could be considered equally discriminatory. I hope that the Government will revisit this issue in discussion with the DRC, ok2b and other stakeholders and that they will undertake to reform the 1983 Act to remove this outdated provision. I beg to move.

58A: After Clause 37 , insert the following new Clause—

“Places of safety

(1) Section 135 of the 1983 Act (warrant to search for and remove patients) is amended as follows.

(2) In subsection (3) for “72 hours” substitute “24 hours”.

(3) In subsection (6) for “residential accommodation provided by a local social services authority” substitute “any other suitable place the occupier of which is willing temporarily to receive the patient”.”

The noble Earl said: I want very briefly to raise a couple of additional points about places of safety.

Section 135 of the 1983 Act is concerned with the situation where a person with a mental illness is living somewhere where he is being ill treated or is neglecting his own care. A power is given to the police to obtain a warrant to enter the premises and remove the person to a place of safety. As in Section 136, a period of 72 hours is specified as the maximum time in which a person can be so detained. For the reasons I gave earlier, I believe that this ought to be a much shorter period. I am suggesting 24 hours.

However I also want to flag up what appear to be rather odd provisions in Section 135(6). A place of safety is defined here as, among others,

“residential accommodation provided by a local social services authority under Part III of the National Assistance Act 1948”.

That description is one which is normally applied to care homes for the elderly. A care home is not the right environment for someone experiencing an acute psychotic episode. I therefore wonder whether it is time to look again at this provision.

Similarly, I have doubts about the catch-all description at the end of subsection (6), which refers to:

“any other suitable place the occupier of which is willing temporarily to receive the patient”.

That also does not seem appropriate if we are trying to cater for someone with an acute health need.

Those are purely probing points at this stage. I should be interested to hear what the Minister has to say about them. If he has nothing to say now, I would of course be willing to accept a letter from him in due course. I beg to move.

60: Schedule 6 , page 73, line 4, at end insert—

“No charges for accommodation, care or treatment provided to P while deprived of liberty Where the managing authority deprives P of his liberty by detaining him as mentioned in paragraph 1(2) above, the appropriate NHS body or local authority which has authorised the detention shall make arrangements for the provision of the accommodation with care or treatment, and it shall be free of charge.”

The noble Baroness said: I cannot tell you how delighted I am to stand up at this hour and start discussing a matter so technical that only a very few people understand it, but that is my misfortune. The next few amendments refer to the Bournewood gap. In the Chamber tonight we have some of the few people in this country who understand what that means. It might help if I briefly explained what the Bournewood gap refers to, small and technical though these matters are.

The provision has come about as a result of a court case in which a person who did not have mental capacity went into care as a voluntary patient. When he attempted to leave, he was deemed not to have capacity to make that decision. He and his carers were unable to remove him from that deprivation of liberty. He took his case as far as he could and won. The court gave a judgment about deprivation of liberty. As those who took part in the many debates on this during the passage of the Mental Capacity Act will remember, we knew for some time that the Government had to bring in legislation to close that gap. He did not have rights equivalent to those of someone detained under mental health legislation.

The Government, to comply, have brought forward proposals amending this legislation and the Mental Capacity Act. The department has helpfully issued a code of practice seeking to explain what this is all about. Page 9 of the code defines the meaning of deprivation of liberty, quoting almost verbatim from the European Court judgment. It also contains a small section on how one identifies when there has been a deprivation of liberty. It is a particularly difficult matter. In its judgment the court said:

“It is not disputed that in order to determine whether there has been a deprivation of liberty, the starting-point must be the specific situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question. The distinction between a deprivation of, and restriction upon, liberty is merely one of degree or intensity and not one of nature or substance”.

I am not a lawyer, but that is a lawyers’ charter. It is well understood by everybody concerned that this matter will be determined over time by case law. Therefore, what I am going to say, and what others and the Minister may say, could be important to future decisions in court about this law and its interpretation. So, late as it is, I am afraid that we have to go through these matters.

The purpose of the amendment is to establish that where a person is deprived of his liberty in a care home under the Bournewood provisions, he comes under a care management scheme and the local authority or NHS body that commissions the care does not impose any charges for such care while the authorisation is in place. This issue is specific to those in care homes, because others detained under the Bournewood provisions are normally detained under the Mental Health Act or do not have sufficient personal capital, savings or income to pay for the care. Their care is usually free.

Those who are subject to a Bournewood authorisation in a care home, uniquely among those who are deprived of their liberty, should not be expected to pay for their care while they are under that detention. Their detention is subject to Article 5 of the European Convention on Human Rights—it is detention—and Article 14 prohibits unjustified discrimination in the application of any other articles, including Article 5. So while there may not necessarily be any difference in the conditions of somebody detained under the Mental Health Act or the Mental Capacity Act, there would be for those people.

I am perhaps going to pre-empt the Minister saying that she has every sympathy with me but that this could be quite expensive because of the number of people involved. That point has been made by other authorities. We on these Benches are of the opinion that there are two important points. One is that we should not set the precedent in law that those who are deprived of their liberty should be made to pay for their care. That is a dangerous precedent. But the second and perhaps most important point is to make sure that when old people—and it is largely older people who lack capacity—are taken into care homes, a proper care planning approach is taken and care is ordered in such a way that it does not deprive them of their liberty. We should aim for good practice where people are not unnecessarily prevented from going out as they wish and are able. This measure is in part about principle and in part about good practice. I beg to move.

61: Schedule 6 , page 76, leave out lines 19 to 28 and insert—

“( ) Any person may make a request for a standard authorisation where it appears to him that the relevant person is likely—

(a) at that time, or (b) at some later time within the next 28 days, to meet all the qualifying requirements.”

The noble Earl said: In moving the amendment I shall speak also to Amendments Nos. 63 and 64. As currently drafted the Bill states that wherever the managing authority of a hospital or care home identifies that a person who lacks capacity is being or risks being deprived of liberty it must apply to the supervisory body for a standard authorisation of deprivation of liberty. I believe that there is a strong case for extending the right to apply for such an authorisation to anyone who becomes aware that a person who lacks capacity is being or risks being deprived of liberty. Deprivation of liberty is a serious matter. As soon as anyone becomes aware that it is taking place it should be assessed and authorised or refused as quickly as possible. That could best be achieved by extending more widely than is currently envisaged the pool of people who are entitled to request an authorisation.

Hospital and care homes may not always be best placed to judge whether people in their care who lack capacity are being deprived of their liberty. It is not always obvious that a deprivation of liberty is taking place and a hospital or care home may believe wrongly but in good faith that one of their residents is not being or does not risk being deprived of liberty. In such cases a request for an authorisation would not be made. Widening the pool of people who can call for an authorisation to other interested parties such as inspection bodies, family members, friends or advocacy groups who may become aware of a potential deprivation of liberty before a hospital or care home does would provide an important additional safeguard.

Few cases of deprivation of liberty are likely to involve deliberate abuse. However, I have concerns about the implications of leaving the right to request an authorisation of deprivation of liberty solely in the hands of the bodies responsible for the deprivations of liberty in the first place. Where a deprivation of liberty is taking place but is not justified and would not be authorised, the supervisory body would refuse an authorisation and rule that the deprivation of liberty is unlawful. Some hospitals or care homes may seek to avoid such a ruling by failing to request an authorisation. While the deprivation of liberty might well come to light eventually, it would do so more quickly if independent third parties had the right to request an authorisation. Such a right would also be a disincentive to hospitals or care homes which might otherwise avoid requesting an authorisation.

Amendments Nos. 63 and 64 are designed to ensure that third parties which request a standard authorisation are informed of the result of their request. I beg to move.

61A: Schedule 6, page 78, line 33, at end insert—

“Request refused: supervisory body to make recommendations (1) This paragraph applies if—

(a) a request is made for a standard authorisation; (b) the supervisory body are prohibited by paragraph 50(2) from giving the authorisation; (c) all assessments except the best interests assessment are positive; and (d) on the basis of the information taken into account in carrying out the assessment it appears to the supervisory body that there is, or is likely to be, a deprivation of liberty. (2) The supervisory body shall make recommendations on how a person’s health and social care needs can be met in their best interests without depriving that person of their liberty, and shall monitor the implementation of these recommendations after a period of 14 days.”

The noble Baroness said: The two amendments in this group would have been supported by the noble Lord, Lord Rix, if he were here. They both try, from slightly different angles, to address the same question. When the supervisory body refuses to authorise the deprivation of liberty but believes that an unauthorised deprivation of liberty is taking place, it informs the relevant people, including the police and the relevant inspection body, that that is happening. The purpose of these amendments is to find out from the Minister what steps will be taken once a deprivation of liberty has been identified but not authorised. The Bill does not contain any provision to ensure that the relevant inspection body is informed once the supervisory body has identified that a deprivation of liberty is taking place. Where something is wrong, but it has not been deemed to be a deprivation of liberty, who does what to make sure that that situation does not persist? That is, in essence, the question that lies behind this amendment. I beg to move.