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Mental Health Bill [HL]

Volume 688: debated on Wednesday 17 January 2007

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.

That was a very useful contribution; I am grateful to the noble Lord for making it. I would like to take this opportunity to pay tribute to the work of the Mental Health Act Commission in keeping under review the operation of the 1983 Mental Health Act. I would commend to the Committee the commission’s reports and general work.

I understand that the noble Lord has put this forward as a debating point. We could not accept the amendments as such. The essential point is that it is our intention, as announced by the Chancellor in his Budget Statement of 2005, to create a new regulator in 2008. This will build on the work and successes of the Mental Health Act Commission, the Healthcare Commission and the Commission for Social Care Inspection, working across the health and adult social care sector in England. I see the noble Earl, Lord Howe, thinking back to some debates we had on that matter quite a few years ago. No doubt he will remind me in due course of what I said then.

Regarding the proposals for amending the Mental Capacity Act, the Government are in full agreement with the noble Lord that an essential part of introducing those safeguards is monitoring how they are applied in practice. That is why we have taken a power in Schedule 6 to make an insertion into the Mental Capacity Act to give one or more bodies a duty to monitor and report on the operation of the Bournewood safeguards. Essentially, the monitoring bodies would have powers to monitor and report on the operational safeguards; visit hospitals and care homes; visit and interview people in hospitals and care homes; and require the production of an inspection report.

The monitoring would require the body to look at protocols and procedures in place for complying with duties placed on managing authorities and supervisory bodies; whether the guidance in the code of practice is being complied with—I thought noble Lords would be pleased to hear that; whether conditions attached to authorisation and requirements to request review of circumstantial change are complied with; and whether appropriate steps are being taken in cases where authorisation has been refused. It is intended that this monitoring body be an integral part of the overall regulation inspection regime for health and adult social care. We intend that the new body should monitor the use of deprivation of liberty provisions in the Mental Capacity Act in England. The deprivation of liberty provisions and the establishment of the new regulator are planned to take effect in 2008. In any interim period between the two coming into effect, the monitoring role will be undertaken by the existing bodies alongside their current roles. We are in very constructive discussions with the three commissions about how that might work in practice.

We are proposing to use the regulation-making power in paragraph 155 of Schedule 6 to require supervisory bodies and managing authorities to make information available to the regulatory bodies. I hope that that meets some of the issues raised by the amendments.

Amendment No. 43 would open the possibility of requiring the Mental Health Act Commission to visit all care homes to monitor the Bournewood safeguards. That is not something that we would agree to. Our interim arrangements will enable the Commission for Social Care Inspection, which already visits care homes, to undertake the monitoring of the use of the Bournewood proposals in that setting.

I turn to the wish of the noble Lord, Lord Patel, to give the MHAC powers to monitor patients whom it considers may be detained but who are neither subject to detention under the Mental Health Act nor subject to a deprivation of liberty under our proposals for the Mental Capacity Act. I say at once that I clearly understand the concerns raised by the noble Lord, but I think that an issue arises in law in saying that such patients, who in effect are illegally detained, should have their cases kept under review. I am clear—this was reinforced by the debate—that it will be for the regulator and, where appropriate, the courts to address these situations. With a single regulator, we want to ensure that quick action can be taken whenever such a case comes to the attention of staff who are responsible for visiting patients detained under the Mental Health Act or deprived of liberty under the Mental Capacity Act.

I will take the noble Lord’s comments into account when taking forward the proposals for a single regulator. Clearly, we will want to ensure that there is even better co-ordination between that part of the new body charged with regulating hospitals and the part that will inherit the responsibility for visiting patients who are subject to compulsion or deprived of their liberty. We will consider further the right range of powers for the new regulator, including how the regulator’s enforcement powers should apply. I hope that I have responded positively to some very real issues raised by the noble Lord.

I thank the Minister for his response and for his kind remarks about the Mental Health Act Commission. I genuinely believe that the amendments, or similar wording, would be a step in the right direction to stop the ongoing abuse and neglect of a number of vulnerable people in the mental health system who are falling in the gap.

I take on board his point about the new health and social care Bill establishing the new regulator, but perhaps I may ask him to reconsider having to wait another year before that Bill comes into place, with another year of abuse for these patients. A year is a long time and, having come to this House, I have learnt that things can change in a year: some Bills are introduced and some are not. Also, in the interim period he may wish to talk to the Secretary of State about the discretionary powers that exist and about whether there may be an opportunity for us to look beyond that and have a further debate on this matter. I believe that we need a further debate but, for now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 44 not moved.]

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.

The noble Lord, Lord Patel, makes a powerful case. I am afraid that my answer is essentially the one that I gave to the last amendment. He has clearly raised important issues of concern. We are consulting on the right regulatory body to bring forward the three commissions that I have already put together. Clearly, issues of powers and duties of monitoring in relation to the operation of the Mental Health Act need to be considered in taking that body forward. We will announce how and when we will make that further consideration in due course, and I will ensure that the noble Lord’s comments are taken into account. I take to heart his points about the need for information on various ethnic groups, the impact that such monitoring has on services more generally and the way in which those services are organised.

Amendment No. 45 would require notification of all admissions of voluntary patients. We see a problem with that in terms of the numbers—tens of thousands of patients with mental disorder were admitted voluntarily. We are yet to be persuaded that this would improve monitoring under the Mental Health Act, but I assure the noble Lord that we definitely see a need for improvements to the functions involved in monitoring mental health legislation, which we intend to realise through a new regulator working across the whole health and adult social care sector.

I thank the Minister for his remarks. It is important that the census of all in-patients in the mental health system should achieve what we want it to. It monitors them now quite easily without service providers having any extra burden. We managed to get a one-day snapshot study, but we need the situation to be monitored on a continual basis for several reasons. Not only would that monitor trends and provide important information and understanding on where patients who should be detained are not detained and where patients who should not be detained are detained, but surely any practitioner who wants to put together a package of care needs such basic information. If they were treating me, they would need to know that I am Hindu, that I am a Yorkshireman, how old I am, where I come from, and what makes me tick. This is very basic information, which it should not be a burden to collect and record. I think that undertaking the census has improved practice across the board. I urge the Minister to reconsider and have further debate on this area but, in the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 46 not moved.]

Schedule 3 agreed to.

Schedule 4 agreed to.

Clauses 26 to 30 agreed to.

Clause 31 [Organisation]:

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.

I am addressing these amendments because I have responsibility for the tribunal service within the Department for Constitutional Affairs and because the mental health review tribunal falls within my remit. In this context, I am also responding on behalf of the Home Office, for this falls fairly and squarely within its remit. I am grateful to the noble Earl for so succinctly putting the issues relating to Amendments Nos. 47 and 48 before us.

As the noble Earl said, the nearest relative provisions of the 1983 Act do not currently apply to decisions made in respect of restricted patients, so a question would automatically be prompted by the proposals in Amendment No. 47 about whether we ought to be looking to extend those principles to apply to the restriction order in all circumstances. It is a fact that the regime for the management of restricted patients is intentionally different from that for unrestricted patients. The noble Earl alluded to that in any event. Restricted patients are people convicted of serious offences whom the courts have found to pose a risk of serious harm to others, or if they are serving prisoners transferred to prison for specialist services. They are people who, instead of being required to serve a prison sentence, have been ordered to be detained in hospital subject to special restrictions for the protection of others. As the noble Earl also indicated, the decision on the discharge of restricted patients is made either by the Home Secretary or by the tribunal. He will know that the 1983 Act allows the tribunal to make that decision on the basis of a European Court of Human Rights decision, and that is accepted and part of our legislation.

It is not to me apparent that we would derive much benefit for the restricted patient in being able to divert to the nearest relative the rights of reply to the tribunal. I hear what the noble Earl said and, as ever, I will think about it. However, in the case of a transferred prisoner, the effect of a tribunal’s finding that he is not properly detained in hospital is return to prison. The nearest relative provisions are not relevant to the management of a restricted patient. These are patients required by law to be managed on the basis of the need to protect others from serious harm. I fear that we would not be able to achieve what the noble Earl wishes to achieve in Amendment No. 47. However, I will, as I have indicated, think about the issue in our deliberations between now and Report.

On Amendment No. 48, I acknowledge the work of Professor Richardson, but of course there is the recommendation of the pre-legislative scrutiny committee to allow the tribunal to be given the power over the transfer and leave of absence of restricted patients, which fundamentally alters the arrangements for risk management of restricted patients, taking away from the Home Secretary his sole responsibility for decision-making on the risk management of detained and restricted patients. As I understand it, the Home Office takes 2,500 decisions annually on the leave and transfer of restricted patients. I hear the noble Lord’s concern about the Home Office’s role, but in the majority of cases applications are dealt with and responses delivered within the target dates, which are three weeks for leave of applications and two months for transfers.

I am not entirely convinced that the tribunal, with due respect to its work, could improve on that performance without a vast increase in resources. It currently considers about 15,000 applications for discharge on a once-a-year basis. The management of restricted patients is complex. It is not an accident. It is the result of a balance between the rights of the public to be protected from serious harm and the rights of the patients. As I have indicated, the courts can divert restricted patients or offenders convicted in the courts from prison sentences to be treated in hospital. Diversion under a restricted hospital order means that there is no tariff to serve; there is no element of punishment in that sentence.

The function of the Home Secretary and the tribunal is, if I may describe it as such, a constructive tension. The Home Secretary’s responsibility is to protect the public, balanced by the tribunal’s power to discharge the patient from detention if it is not satisfied that that is justified by the patient’s disorder and the risks that arise from it. Checking the figures today with officials, I understand that 75 per cent of restricted patients are discharged.

The effect that we are conscious of is that, if the tribunal were given the additional responsibility to regulate the pace of the patient’s rehabilitation by being able to order, transfer and lead for the patient, we would be in danger of undermining the Home Secretary’s power to protect the public—the constructive tension to which I referred. We think that, because the Home Office is dealing with matters effectively, the current system works well, and that the tribunal’s ability at the end to be able to discharge the patient under the 1983 Act is the right way to go forward. I will of course consider the matter further with colleagues in the Home Office, but at this stage I believe that the balance is right. I hope that the noble Earl will withdraw his amendment.

I am grateful to the Minister. I take serious note of the points that she made, which in all conscience I must reflect on. I thank her for a full reply and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 48 not moved.]

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.

I support the amendments. In respect of Amendment No. 49, we have heard it stated many times in our debates on the Bill that the chance to review mental health legislation comes about every 25 years. We have also heard, especially from Ministers in relation to setting principles in statute, that over the course of these quarter centuries, societal values may change and statutory requirements become dated.

In the case of the statutory requirements relating to the constitution of the mental health review tribunal, we have a case in point. The current statute requires multi-disciplinary input to the lay membership of tribunals, with particular emphasis on such persons “with experience in administration” or “knowledge of social services”. I have no wish to suggest that persons falling within these categories are not important or needed—indeed, I fall into at least one of them myself—but were we to draft this today, it would be inconceivable that we would not specifically include, and give priority to, service users and carers, who are “experts by experience”.

Furthermore, given the over-representation of black and minority ethnic patients under compulsion and the widespread suspicion of services in the black community, this is a good opportunity to underline the importance of taking into account diversity issues in the appointment of tribunal members. I hope that we will grasp this opportunity to update the statutory language around this part of the Act.

In respect of Amendment No. 50, I can say with some certainty that noble Lords need no reminding of the quite shocking examples and statistics that have been provided throughout our debates about the widespread placement of children and adolescents on adult wards, with inappropriate provision made for their safe and effective care and treatment.

The Government recognise the problem that children and adolescents may be detained in adult facilities for want of an appropriate CAMHS bed, but it is a problem that has not yet found resolution. The amendment addresses one side effect, if you will, of the often inappropriate placement of child and adolescent patients.

Mental health professionals working on adult wards where children are inappropriately placed may find themselves disempowered by their own lack of skills and knowledge in child and adolescent mental health care. This can place children in an additionally vulnerable position when it comes to the deliberations of the mental health review tribunal, because the tribunal may not, in its dealings with staff at the detaining authority, meet with the relevant expertise that should be available to it at its hearings.

I therefore support the amendment, which aims to ensure that the determination by a tribunal of whether compulsion under the 1983 Act is appropriate for children and adolescents involves professionals with appropriate expertise in these areas.

I am very grateful to noble Lords who have spoken in this debate. As I indicated earlier, I am especially interested because the work of the tribunal service now rests with me within the Department for Constitutional Affairs. One of the things that I have been doing is reviewing the role of non-legal members of tribunals, and I have had the good fortune to meet more than 100 members who we classify as non-legal members—I am looking for a better term than that. Included in that description are medical professionals of one kind or another and those who sit on the Mental Health Review Tribunal.

I have the appropriate reactions of a Minister to statute—that it is very difficult to change it—so I do not want to accept this amendment, but I share the concerns of noble Lords. I looked at the minority ethnic breakdown in the statistics about those involved in mental health review tribunals, and the membership is 76 per cent white, 9 per cent Asian, 2 per cent black, 13 per cent not stated and 0.004 per cent Chinese. We need to think very carefully about the flexibility and membership of the tribunal service. One of my ambitions is to reflect the breakdown and mix of our society better in the tribunal service in terms of ethnicity and, going back to Amendment No. 49, the mix of those who use and understand the service. There is nothing between the Department of Health and my department on this issue—my noble friend Lord Hunt of Kings Heath is nodding. We want to achieve that mix. I do not want to put that in statute, but we will do the best we can.

Having chaired a health authority, I have a lot of experience of the issues and needs of child and adolescent mental health services and of trying to develop a good service right across the country to support children with these problems. Noble Lords will no doubt have talked far longer than I can about their questions and concerns. It is difficult to commit in statute that one could immediately get to the point of being able to put somebody with that expertise on the panel in the tribunal service on all occasions. I cannot do that. What I am prepared to commit to is that no child should appear before a tribunal unless he has been seen or supported in some way by someone with the expertise to reflect the fact that he is a young person, an adolescent, under 18 or so on. That might be done in the process of getting to the tribunal by having the opportunity to meet somebody from the service, it might be done by somebody on the panel or there might be other opportunities. My ambition is to get to the point where it is set in stone that that facility is available. I do not have enough people to be able to offer that now, but I will offer to make sure that from now on children who have not had the opportunity of that expertise do not appear before the tribunal. Noble Lords will appreciate that that is a huge commitment.

I ask the noble Earl to withdraw the amendment because I cannot put that commitment in statute. I also ask him to recognise that I share the ambitions in both the amendments in this group. I see that the noble Lord, Lord Newton of Braintree, who is president of the Council on Tribunals, is in the Chamber. He is the key person working with me on this, and we are committed to achieving it. I am sure that we can because behind the amendments are serious and important issues that we need to address.

That statement of intent from the Minister is very welcome. I am sure that the Committee is glad that she is marching with us on this one. It would be doubly good if, at some point, we could hear from her about how she and her officials plan to deliver that.

I am sorry to interrupt the noble Earl, but he is right to suggest that. We plan to produce a strategic document about the role and future of the tribunal service very shortly, and that will provide opportunities for noble Lords to come back to me on the commitments that I have made.

I am most grateful and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 50 not moved.]

Clause 31 agreed to.

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.

I am grateful to the noble Earl for raising this issue. Noble Lords will know from their deliberations on the Bill that all civil patients have the safeguard of a nearest relative. The nearest relative has the right to discharge a patient at any time and, where that discharge is barred, the nearest relative can apply to the tribunal to challenge that detention. The right of a patient to apply to the tribunal and the additional rights of the nearest relative to apply must be explained to the patient by the hospital managers. That is a statutory requirement under Section 132. However, if the patient does not use the right to apply to the tribunal, Section 68 provides the backstop for patients, ensuring that all unrestricted patients, not only those who lack capacity, have the safeguard of an independent review of their case.

We think the time periods within Section 68 are appropriate. They ensure that a civil patient who has not applied for a tribunal or otherwise been referred will be referred by the hospital managers after an initial six months of detention. We have expanded the group of patients to whom this applies to ensure that it includes patients who remain on a Section 2 by virtue of a County Court procedure to displace their nearest relative under Section 29. The period spent under Section 2 will, with the new provisions, be taken into account when calculating the six-month period to referral. This is an important move; the 28 days is part of the six months. In addition, all unrestricted patients will be referred to the tribunal every three years, as the noble Earl has indicated, if they are adults, and every year if they are under 16.

The Bill introduces the option to reduce these periods—which, in a sense, is what the noble Earl is after—so that the backstop safeguard of a tribunal for all patients who do not apply will occur sooner. The Secretary of State and the Welsh Ministers will use this power when they are certain that the resources in the NHS, local authorities and the mental health review tribunal can be made available without affecting the provision of mental health services to patients with mental disorders. The commitment we make is that we will achieve that through a combination of the Department of Health and the Department for Constitutional Affairs. It is our intention to reduce the time although I am not able at this point to give noble Lords a timescale for it.

The problem with the amendment is that we would almost certainly end up with a more or less immediate increase in tribunal referrals, which may or may not be wanted by the patients concerned, and require hospital managers to arrange for every detained patient who does not apply for a tribunal to be assessed to determine whether they have the capacity to make such an application. In other words, rather than relying on managers to keep an eye out for patients whose lack of capacity may require steps to be taken, it forces managers to assess capacity indiscriminately; and because capacity is, of course, specific to particular decisions, it is not the same as assessing the capacity to consent to treatment, for example. So it should not be assumed that this assessment will be carried out anyway as a routine part of patient care.

The noble Earl makes a good point about the length of time. We think the best way to address that is, within the provisions of the Bill, to consider reducing that time when we are able to do so—we commit to do that—and in that way achieve what the noble Earl wishes. However, it is important to ensure that we have safeguards for mental health patients, including those who lack capacity. We think the provisions in the Bill provide the most effective way of recognising our desire to reduce the timescale. I hope the noble Earl will feel able to withdraw his amendment.

Once again, that is a helpful reply. I do not doubt that the Minister is totally sincere in what she says, and that the Government intend to reduce that period when they can. I would welcome that. I bear in mind, however, that since 1983 we have had a provision in the Act to enable the Secretary of State to reduce the three-month period, and nothing has happened under successive Governments, so, with the best will in the world, intentions can fall by the wayside. Nevertheless, I shall reflect carefully on what the Minister has said, and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 51A not moved.]

Clause 32 agreed to.

Schedule 5 agreed to.

Clauses 33 and 34 agreed to.

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


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.

I am aware that the introduction of the new AMHP role and the loss of the requirement for the individual to be employed by the local authority have led to concerns that pressure could be applied to AMHPs acting on behalf of a local authority, but employed by the same trust as doctors carrying out mental health assessments or hospital managers dealing with bed shortages. I understand the rationale outlined by the noble Earl, Lord Howe.

The amendment would make it an offence for any person to offer an inducement or make a threat with a view to improperly influencing a decision made under the Act. That could include patients and their relatives acting inadvisably but in reaction to difficult circumstances. I am sure that noble Lords would agree that in most cases it would be inappropriate to criminalise that behaviour. Instead it should be dealt with sensitively on an informal basis by the professionals involved.

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.

That was a helpful reply, on which I shall reflect carefully. However, this is an area where theory sometimes tends to become detached from practice. The problem is that the professional status within an organisation of relatively junior employees—social workers, nurses and occupational therapists, for example—who are likely to act as AMHPs will be vastly less than that of the consultant psychiatrists, some of whom will carry senior management responsibilities. Many seconded ASWs already report that they have come under great pressure to act, or not to act, in a particular way. I suggest that members of health professions are likely to be more vulnerable to such pressure. Such things can be hidden; they do not necessarily come out; and it is very difficult to guard against them, whatever codes of practice are in place. Nevertheless, I take on board all the points made by the Minister and I beg leave to withdraw the amendment for the time being.

Amendment, by leave, withdrawn.

Clauses 35 and 36 agreed to.

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.

I have put my name to this amendment because the suggested change in the law would be an empowering measure for patients. It would provide a counterweight to the broad powers over patients that are given to detaining authorities.

It is not uncommon for a patient or relative to express a wish for a transfer between hospitals, whether this is to be nearer home or because of a preference for one hospital's regime over another. We should be mindful that it is current government policy that prospective patients across the rest of the NHS should be encouraged to express choices in hospital care and that they should be acted on. If we cannot extend this agenda around choice to psychiatric patients, even in this limited way, we risk further excluding them and increasing the stigma of psychiatric treatment.

The title of the proposed new clause is perhaps a misnomer as the “right” to which it refers is not the right for a patient to move hospital, but a right to have any request for such a move treated with appropriate seriousness by the detaining authority. There is therefore no reason for the Minister to reject the amendment on the grounds that it provides some form of positive right to treatment that can be exercised only at the expense of equitable provision within the NHS. That is not an issue here.

The Minister will forgive me for anticipating what may be in his brief for this part of the debate, but I do not believe that the amendment raises problems in relation to what might be termed “vexatious petitioners”; in other words, patients or relatives who make repeated and ceaseless requests for the same thing. I recall that the Minister was concerned about this issue in relation to Amendment No. 19. He was anxious over the staff time that might be spent on repeating the reasons why a request had been denied and the effect on some patients of having such a denial repeated endlessly back to them.

I think that these concerns are misplaced. Over the years, hospitals have learnt to manage such situations in relation to requests for managers' review of detention, when there are no limits on the frequency or number of requests that may be made for a hearing. If the managers have recently denied a request, giving reasons, and that request is repeated without any change of circumstances, I am sure that it is adequate to refer the patient or relative to the reasons already provided.

I support the amendment primarily because it is necessary to build some counter weights into the 1983 Act to compel the worst practitioners into treating patients with greater respect. We need not worry about overburdening good practitioners with unnecessary statutory requirements. If they are any good the statutory requirements will underpin practices that we already have in place. It is the law’s place in this area to establish minimum standards, and this should be one such standard.

I am grateful to noble Lords for tabling this amendment on the arrangements that govern the transfer of a patient from one hospital to another. I recognise the issues relating to BME patients as explained by the noble Earl, Lord Howe, and the noble Lord, Lord Patel. The amendment raises important issues of good practice and reflects one of the recommendations of the independent inquiry into the death of David Bennett, a mentally disordered person who died at the Norvic Clinic in Norwich in October 1998. We accepted recommendation 19, but we recognise that it is not being properly implemented. However, we do not think this amendment is necessary.

Transfers are arranged at the discretion of hospital managers, but patients and their families can make informal representations to hospital managers requesting a transfer, and hospital managers should consider any reasonable request. When doing so, they take account of such factors as the availability of beds and staff at the other hospital; the availability of suitable facilities there; and easier access for the patient to family and friends. These are just examples; there may be other relevant factors.

It would not be right to introduce a prescribed process for transfer requests of the sort that this amendment would result in. As I have said, this should be a matter of good practice. There is, of course, guidance on transfers in the draft version of the code of practice that will accompany the amended Mental Health Act, but it may be that there is more that can be usefully said. Indeed, I am certain that there is. We can certainly see no objection to giving guidance in the new version of the code about the possibility of transferring to another hospital; that all transfer requests should be recorded; and that written decisions should normally be issued in response to such requests. It would certainly be possible to list the sorts of factors that hospital managers should take into account when deciding whether a transfer is appropriate. The factors cited in this amendment will be relevant. But there will be others. We shall consult widely before drafting the relevant chapter of the code. Similar arrangements will be made in respect of the code of practice for Wales.

The range of factors that might be relevant in determining whether a transfer is appropriate is considerable. I agree that those mentioned in the amendment will be important, but there may be others in individual cases; for example, the level of security required may be a factor. By adopting the code of practice approach, it will be possible to get across to hospital managers more effectively than in legislation the range of factors that will be relevant.

I recognise that the amendment is extremely well intentioned and that it is necessary to ensure that recommendation 19 from the David Bennett report is properly implemented. However, in our view, the amendment would result in an overly bureaucratic and restrictive procedure, and we believe that the code of practice is much the best way to deal with these issues. Therefore, I ask the noble Earl to reconsider the amendment.

I thank the Minister for her constructive reply. I would certainly settle for a set of provisions in the code of practice that laid out the kinds of consideration to which I referred. I welcome what the Minister said on that front. I hope that some work can be done on that, but I am encouraged by her statement of intent that that will be so. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 37 agreed to.

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.

I support most strongly everything that the noble Earl, Lord Howe, has said and, with the permission of the noble Lord, Lord Stevens of Kirkwhelpington, who is not in his place, but was here earlier, I express his strong support, too. He had hoped to speak to the amendment, had we moved a little faster in the debate. Like Nick Hardwick, who was quoted by the noble Earl, the noble Lord, Lord Stevens, feels that whatever else a police cell is, it is not a place of safety for people with mental illness. Over many years, he and I have discussed the enormous problems that this situation has caused, with fragile, vulnerable and very sick people held in police cells for up to three days. The system for moving them to another place of safety is not in place. Therefore, I hope that the Minister will accept the amendment and acknowledge that we must do something.

Having worked for eight years with the Police Complaints Authority, I, too, strongly endorse the words of the noble Earl, Lord Howe.

If only I had a magic wand that could solve this problem. In fact, I have every sympathy with the points that have been raised. There is no question but that a police station is not an ideal place in which to detain a mentally ill person awaiting assessment, and that, of course, hospital-based facilities would be much more appropriate.

The issue that the Government have to deal with is that there may be occasions when a police station is the only available facility and when it is necessary, in some circumstances, to detain a person there for longer than 24 hours. For example, it may be impossible for a doctor and an approved mental health professional to get to the police station to examine the patient and interview him within that time, perhaps in a rural area. The person who is detained may be extremely agitated or be behaving aggressively or violently, and it might be necessary to take some time before an assessment can be made. The patient may not be co-operative. It may be difficult to get details of their identity and their family and friends. That is why we believe that sometimes it may be difficult to complete these things within 24 hours, particularly if the person is received at the police station late at night.

I understand that my answer will be frustrating for noble Lords. They may be tired of me talking about the development of good practice, but that is one answer to this problem. There are areas where there is adequate alternative provision. For example, the development of hospital-based facilities is reasonably advanced in some parts of the country. I endorse the Metropolitan Police policy whereby police stations are used only as a last resort. That approach is appropriate and is the kind of good practice that we want to develop.

I would bring some comfort to the noble Earl by saying that we are moving forward in facilitating that good practice. From April 2006, we have made available a capital package of £130 million for the improvement of the mental health estate—in particular, for the development of hospital-based places of safety. This money will facilitate an increase in hospital-based safety facilities and will reduce the reliance on police stations. We will enforce this in the code of practice that will accompany the amended Mental Health Act. The current code states that police cells should not generally be used. We plan to emphasise in the new version of the code that police stations should be used only as a last resort—for example, if nowhere more suitable is immediately available—and that assessments should be completed as soon as possible.

At the end of the day, we need to retain the ability to use police stations if necessary, and we have problems with the sort of test that the noble Earl has suggested by stipulating exceptional circumstances, which may well be over-restrictive. I was not aware of the ambiguity in the law that he suggested, and I would be happy to take that issue away and look at it.

In welcoming the latter assurance, as I certainly do, I must express my disappointment with the bulk of the Minister’s reply. I do not accept his explanation. If one reads the amendment, it is clear that I do not propose removing police stations altogether from Section 136. I am quite consciously not doing so; there is a clear exception built into the wording of the amendment. I accept entirely that there are situations where there is no other option than for somebody to be in a police station—for example, in rural areas or when somebody is very violent.

I do not want to delay the Committee, but the problem is the definition of exceptional circumstances and how they will operate. Clearly, we want to see a reduction in the use of police stations as places of safety, but I fear that the terms used in the amendment would not give enough discretion.

It would be defined initially both by case law and by the code of practice, I suppose. I know that the Minister has resisted this, but I do not feel that this is something that can simply lie totally within the code of practice; there has to be something in the Bill. I wonder if the Minister could look at this amendment to see whether it could be made more acceptable. I do not say that every aspect of it is perfect. It would be extremely welcome and would avoid our bringing the matter back at the next stage if the Minister could undertake to have a second look.

I have said that I will have a look at the ambiguity mentioned by the noble Earl. I can also consider the terms of the debate. However, I would not want to give him undue hope; it would be unfair to do so.

I understand. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 55 not moved.]

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.

I have considerable sympathy with the points raised by the noble Baroness and would be happy to take this back for consideration.

I was so surprised by the Minister’s response that I almost did not rise again. I thank the Minister for that very swift response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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.

I have said on many occasions that I believe that, if there are no other good reasons for the existence of this House, it is to speak up for those who cannot speak for themselves. On this occasion, I merely wish to congratulate the noble Baroness, Lady Wilkins, on providing a service to Members of another place who clearly are in that position.

I, too, congratulate the noble Baroness. Section 141 is about the most blatant piece of discrimination against mental illness as it is possible to imagine in statute. What message would be sent out if it were ever invoked? The message would be that mental illness is equivalent to gross misconduct, on which the Speaker would have no alternative but to take drastic disciplinary action. It would be equivalent to saying that being mentally ill makes you unfit to work and unfit to represent your constituency. I cannot believe that that is what we want the law to require the Speaker in the other place to do, so I very much hope that the Government will think again about Section 141.

I am grateful to noble Lords for raising this issue. However, the Committee may consider it better for the other place to have a go at this before we come to consider it again. The Government are not persuaded that we should change the legislation at the moment.

When the Speaker is notified that a Member is suffering from a mental disorder, as the noble Baroness intimated, he arranges for the Member to be examined by independent registered medical practitioners experienced in mental disorders—appointed by no less than the august person of the president of the Royal College of Psychiatrists, to whom we owe much in relation to our debate today.

I know that the provision reads as if it is stigmatising and discriminatory, because legislators suffering from serious physical illnesses are not covered by similar provisions in other legislation. I think that a case can be made for it in the sense that the nature of mental disorder could affect whether a Member thinks he can still adequately do his job. We are also talking about cases where the individual is not being treated informally with their valid consent but compulsorily. The individual is being treated in hospital, so their freedom of movement is reliant on their being granted leave. Their ability to come to the legislature, or to be brought there to participate and vote, is therefore not in their own hands. That is rather distinct from the type of physical illness that the noble Baroness mentioned.

It is true that Section 141 has not, to our knowledge, been used since the Act became law. However, if a legislator is still detained at the end of six months, it is not entirely wrong to suggest that their constituents—and we should think of the public interest; no one has mentioned the electorate or those whom the Member of Parliament is there to serve—should have the right to seek alternative representation. That could not be done without the legislator’s seat being vacated. Overall, however, I think it is a matter for the other place.

I thank noble Lords for their support for this amendment and the Minister for his response—which was extremely disappointing. I should like to reflect on the matter, and I am sure that the other place will equally reflect on it. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 58 had been withdrawn from the Marshalled List.]

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.

I apologise to the noble Earl. The reason I went off is that I thought when he moved Amendment No. 54 that he referred also to the content of Amendment No. 58A. Perhaps I could write to him in view of what he said.

I am grateful to the Minister and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 38 [Mental Capacity Act 2005: deprivation of liberty]:

[Amendment No. 59 not moved.]

Clause 38 agreed to.

Schedule 6 [Mental Capacity Act 2005: new Schedule A1]:

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.

I am grateful to the noble Baroness for giving us some of the background and for setting out the reasons why we are debating this issue. I urge noble Lords to take themselves back to those fabulous days when we debated at enormous length an important piece of legislation which I was very proud to take through your Lordships’ House and pay tribute to the noble Baroness, Lady Barker, and the noble Earl, Lord Howe, for the work they did in helping us to do that as effectively as we did. Other noble Lords know the part they played in this regard and I want to pay particular tribute to Lord Carter for the work that he did. Without him I am sure we would not have ended up with such an important piece of legislation.

I am very sorry the noble Lord, Lord Rix, is not with us. I know he is in hospital and doing well. I am sure noble Lords will join me in wishing him well and hoping he will be with us soon, certainly for Report stage, as I need to hear his voice in this debate.

We are in the Mental Capacity Act. The reason we are taking these clauses in the Mental Health Act is because, as noble Lords will recall, we were trying to find a solution that drew a consensus that dealt with the particular case, as the noble Baroness has said, of the Bournewood Hospital which kept someone described as an informal patient in hospital against the wishes of his carers. The European Court of Human Rights found that there had been a deprivation of his liberty in contravention of Article 5(1) and Article 5(4) of the European Convention on Human Rights. As a consequence the Government has moved to seek to address this problem in the most appropriate way.

Adults have the right to make their own decisions; in some cases they are not able to do so. The Mental Capacity Act set out some critically important principles about the issues to do with capacity and what we should do if a person lacks the capacity to take the decision themselves. We recognise that some people who lack capacity to consent—and I will return to this—need to be deprived of liberty but are not detained under the Mental Health Act. Additional safeguards are needed to protect the human rights of these people. They must be protected from arbitrary detention and given speedy access to the courts.

This is not about taking new powers to detain people. It is about giving safeguards to the most vulnerable in care homes and hospitals who need to have their liberty curtailed and considered and who, in some cases, need to be deprived of aspects of their liberty in order to keep them safe and protected and to provide the highest quality care. That is a fundamental issue which we need to address.

The noble Baroness, Lady Barker, rightly says that we have not tried to define it, but I want to say what I believe she is looking for in terms of what the European Court of Human Rights has identified in judgments in cases to date as contributing to the deprivation of liberty. Briefly, they are: restraint was used, including sedation, to admit a person who is resisting; professionals exercised complete and effective control over care and movement for a significant period; professionals exercised control over assessments, treatments, contacts and residence; the person would be prevented from leaving if they made a meaningful attempt to do so; a request by carers for the person to be discharged from their care was refused; the person was unable to maintain social contacts because of restrictions placed on access to other people; and the person lost autonomy because they were under continuous supervision and control. I hope that that sets out some of the areas, but we have determined that ultimately this is for the courts to decide.

I have made it clear that this is not about punishment and not about a deprivation in the wrong context. Looking at who should pay should be in the context of the well established principle of means testing, from which the Government have no intention of moving away. I know that noble Lords from other parties take a different view and we can debate at length the resources in the health service and the Government as a whole. Means testing has been a long-established principle. Therefore I do not have the sympathy for the amendment which the noble Baroness would have wished me to have. Hand in hand with it, there is a suggestion that the deprivation of liberty is negative; somehow being perceived as taking away from someone something that they would prefer to have. The whole basis of the Bournewood principle is that people are deprived of their liberty because they need to be made safe and secure and given high-quality care. I see no reason therefore to suggest that the means-testing element should be disapplied. If one accepts—and I do—the principle of means testing in these cases, it is in order to provide high-quality care. The principles behind the Bournewood provisions are precisely that.

Furthermore, I do not accept the care plan approach, although I understand why the noble Baroness is raising it. Indeed, I had the privilege of meeting stakeholders this morning when we talked around this issue. While it is important to ensure that the highest quality care plan approach is taken by those working with individuals who lack capacity, I do not think you would necessarily get that or get to the point of saying, “We won’t deprive them of their liberty because if we do we have to pay”. That is not the right way to approach this issue. I accept that the underlying issue is to ensure that the decisions and the approach to the deprivation of liberty should be made only where it is in the right and proper interest of the individual and the best interests assessor will have the responsibility for so doing. But it would be wrong to take the approach that says, “If you’ve got to pay for it, perhaps it is an incentive not to do it”. It is precisely in order to support and care for such people that we wish to do it.

I do not accept that as a principle and therefore would reject the amendment and hope that the noble Baroness will withdraw it. However, I understand the issues underlying it and hope that within the code of practice we can ensure that the highest quality care is always provided in order to support people who lack capacity and who for reasons of good high quality care need to have a deprivation of liberty to some degree or other. I hope that on that basis the noble Baroness will withdraw her amendment.

The noble Baroness replied with her customary fullness of detail and consideration and I thank her for that. One aspect that ought to be stressed is the different ways in which care for older people in residential homes is paid for. The difference between self-funders and those who have their care commissioned by local authorities is an important factor in all this. Perhaps the Minister’s reply underestimates the forces that might be at work in any case, depending on who is paying for the person’s care. That may be a big consideration in whether an authorisation is triggered in the first place. That is an important consideration.

It is important to say that detention and deprivation of liberty is more than a mere technicality. Just because people lack capacity—

I did not suggest for a minute that it was a technicality—I know that the noble Baroness is not accusing me of that. It is a critically important issue. The point I was making was that it is done in order to provide high quality safe care for someone, not as either some kind of punishment or detriment to their life. It is a necessity to keep them safe and secure to provide high quality care.

I fully accept that point and I apologise if I misrepresented what the Minister said, but she might concede that where there is a deprivation of liberty that is an evident indication that there is something wrong with someone’s care—

I do not accept that because if we think about some of the circumstances of care that one is providing for individuals, the deprivation of liberty might be in order to ensure that they are secure and safe—one can think not only of elderly patients who may suffer from dementia but also, for example, those with severe learning difficulties perhaps on the extreme end of the autistic spectrum—and be classified in a range of ways: to ensure that they are able to socialise; to eat effectively; to be able to go outside properly; and so on. I do not think that it is about the quality of the care being negative but about ensuring that patients obtain the highest quality care.

There we have a difference because I believe that it is likely to indicate that there is something inappropriate about the care being received. We have not yet discussed that the amendment as proposed would cover independent care homes. That is an important point that will need to be considered at any future stage. I fear that at this hour, no matter how long I bowl on this important point, I am not going to get anywhere. I thank the Minister for her consideration and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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.

I know that my noble friend Lord Rix wished to make a point about the case that generated all this controversy. It resulted from the carers in the Bournewood case drawing it to the attention of the hospital that they did not feel that the patient should be detained. Unless we accept the amendment and changes in the safeguards, the Bournewood problem will not be solved.

I am grateful to the noble Earl and the noble Baroness. I had a very useful discussion this morning with a number of stakeholders, including representatives from the care home sector and other organisations, who made the very point that the noble Baroness made on behalf of the noble Lord, Lord Rix. The care homes were equally concerned to make sure that we did not move to a point where it was not clear who had the statutory duty and where the responsibility lay. I hesitate to say it, but requests could be made in an almost vexatious way, with people constantly asking questions. They wanted clarity.

In statute, we must be clear that we are putting a duty on one body to identify anyone at risk of deprivation of liberty and to apply for authorisation. I do not say that to dismiss the concerns, but we must make sure that we have one body applying for authorisation and that we minimise the potential risks for individuals not to receive the safeguards to which they are entitled. That is why we have put it this way in the framework of the legislation.

Where families are concerned that an authorisation should have been applied for, they will draw that to the attention of the care home or the hospital. It is important to recognise the reality of legal redress; therefore, a request should not be taken lightly. Families can take action through the complaints procedure, but if the question cannot be resolved, there is the opportunity to apply to the Court of Protection. There is a package of measures available but, having said that, I have been thinking about this quite a lot today. I am happy to go away and think whether there are any further steps I can take that would allay concerns, not least those of the family in the Bournewood case.

I begin from the principle that one body needs to have statutory responsibility; it is a question of how best we can make sure that families, carers, and others are able to raise their concerns without muddying the waters in a way that would not help. I hope that on that basis the noble Earl will feel able to withdraw the amendment.

That was a very welcome assurance; I could not have asked the noble Baroness to do more. I hope that we can have constructive discussions between now and the next stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

As it is nearly 10.50 pm, we have seven groups of amendments left and we have to go to bed by 11 o’clock, may I propose that the House do now resume?

I am a little startled to have had this proposed without any notice whatever, particularly from a senior Deputy Speaker. If that is the determination, the noble Countess will have to move this to a Division. She knows perfectly well that if she moves a Motion and we have a Division on it, that takes another quarter of an hour, whatever happens. I request that the noble Countess does not do that at this stage. I have no intention, nor does anyone else, of going on ad infinitum, but we certainly have time to debate another group. I respectfully suggest that the noble Countess does not move a Motion to resume the House at this stage.

Can the Chief Whip assure me that the next group will not exceed the unusual retiring time of 11 o’clock on a Wednesday evening when the staff have to come to work at 11 o’clock tomorrow morning and there is still business to continue? Why do we not continue the next page on the next day?

I really do not think that we can negotiate the business of the House—it is already taking time to do so. I will say to the noble Countess—and it is farther than I would normally go—that I will talk to other members of the usual channels, including the Convenor of the Cross-Bench Peers, in the normal way. However, I strongly appeal to her to let us get on with this now and see where we get to.

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.

I shall speak very briefly to Amendment No. 65, which is designed to ensure that where the supervisory body refuses to authorise a 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. I have tabled the amendment more as a means of probing the Government than anything else. Once a deprivation of liberty has been identified but not authorised, it is important to know what steps would be taken next. It seems essential that where an unauthorised deprivation of liberty is taking place steps are taken as soon as possible to ensure that it stops. I see that in paragraph 44 of Schedule 6 there is provision to ensure that where it appears to the best interests assessor that there is an unauthorised deprivation of liberty and that the relevant person does not meet the best interests requirement then he must include a statement to that effect in his assessment, but it does not give any indication that that information should be communicated to the various people, listed in paragraph 58, who have to be given notice of any decision not to grant a standard authorisation. In any case, the list in paragraph 58 does not contain any inspection agencies. Once again, I hope the Minister will agree to look again at this point, which has been brought to my notice by the Making Decisions Alliance.

The noble Earl is right to point out the role of the best interests assessor, who has to give reasons in the report of his assessment for his conclusion that deprivation of liberty is not in the person’s best interests. We think that that is the best way for that to be dealt with because he, rather than the supervisory body, will be in close contact with the person, his family, friends and carers and with care homes and hospital staff and will be best able to advise on how deprivation of liberty should be avoided. The way that Schedule 6 is drafted provides for the person concerned or anyone with an interest consulted by the best interests assessor and any independent mental capacity advocate to be told that the authorisation has not been granted. They will therefore be aware that the deprivation of liberty is unnecessary and will be expecting changes to take place in the care plan that has been established. I share the ambition to ensure that appropriate action is taken when unnecessary deprivation of liberty is identified. We think we can achieve that through the arrangements that we are making for the assessor to recommend how the deprivation of liberty can be avoided and through the code of practice. I am inevitably happy to think further about whether we can do more to strengthen that in the context of the code of practice and whether we have this right in the Bill.

I thank the Minister for that reply. She will understand the strength of feeling that lies behind this and the need to plug the gap. I am heartened by her comments and I look forward to her department coming forward with proposals. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move that the House do now resume.

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

House resumed.

House adjourned at 10.55 pm.