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Lords Chamber

Volume 689: debated on Monday 19 February 2007

House of Lords

Monday, 19 February 2007.

The House met at half-past two: the LORD SPEAKER on the Woolsack.

Prayers—Read by the Lord Bishop of Coventry.

Lord Attenborough—took the Oath.

Office for National Statistics

asked Her Majesty’s Government:

Whether the public can have confidence in the statistics published by the Office for National Statistics.

My Lords, the Government’s aim has always been to deliver statistics in which people trust; for statistics to be, and be seen to be, produced to the highest professional standards and free from political interference. We are delivering on this aim. The public do have confidence in statistics published by the ONS. A key finding of the independent statistics survey Official Statistics: Perceptions and Trust was that the statistical quality of official outputs in the UK was considered to be generally good and to rival the best in the world.

My Lords, I am grateful to the Minister for that Answer. Is he not honestly ashamed to be the Minister responsible for an executive agency, set up 10 years ago and reporting to the Treasury, which, in its own report in 2005, found that more than 80 per cent of the public surveyed thought that official statistics were produced with political interference; 59 per cent perceived that the Government used the statistics dishonestly; and only 34 per cent felt that the Government’s figures were accurate? Given this miserable record, how on earth will the Bill in another place improve the situation if it still leaves Ministers and departments responsible for producing their own statistics? For example, 20 per cent of Home Office statistics—that is 32 out of 160 sets—are inaccurate. How will that ever improve the situation?

My Lords, the noble Lord overplays his hand somewhat. Of course the general public treat government statements and statistics with proper scepticism. We expect that from a mature and educated electorate. He will recognise, however, that not only did we come to power pledged to improve the quality of statistics but we acted on this in 2000 by the decisions we took on the independent presentation of statistics. The new Bill, which will be before this House in the very near future, enshrines the concept of an independent stance on statistics. That will add to the confidence which the statistics already enjoy.

My Lords, most noble Lords will be interested to hear that the Treasury never interferes with the preparation of the statistics. One is bound to ask why not. On the other hand, what has the Treasury been able to do in advance of publication? Has it ever made representations to the ONS? If so, have they been rejected or accepted?

My Lords, as my noble friend is aware, government departments have prior knowledge of any statistics that emerge and it is only right that they should do so. Ministers are answerable to the two Houses of Parliament for those statistics and the decisions taken on the basis of them. However, he will recognise that, not only have government departments been scrupulous about these matters in the past, particularly the Treasury, but the new Bill that will be before the House shortly will guarantee that that position is there in statute.

My Lords, those of us who have studied statistics remember our first lesson when we are told Mark Twain’s famous saying that there are,

“lies, damned lies and statistics”.

Perhaps the noble Lord means, “There are lies, damned lies and government statistics”. On a serious note, there is public scepticism and it is further accentuated if the statistics themselves are felt to be inaccurate. I urge the Government to go further than the Bill; will they do so?

My Lords, the Bill will provide a forum in which these issues can be discussed. We are aware that there have been one or two lapses. Parliament has drawn the Government’s attention to these lapses, which are regrettable. But they have been limited, and the overall position of statistics is as I reflected. Independent opinion considers British government statistics to be almost unrivalled in their accuracy.

My Lords, the Minister mentioned the need for Ministers to have prior knowledge. Why, if we are trying to make them free from political interference, do Ministers in this country have longer advance notice of statistics than their counterparts in any other country in Western Europe or the United States?

My Lords, we can discuss that issue fruitfully all in good time and we are only a matter of a few impatient weeks before we enjoin debate on this matter. It is reasonable. United Kingdom Ministers have a relationship with Parliament that is close and under the most vigorous scrutiny. It is only right that they have some access to statistics if they can be questioned on them the moment they become public.

My Lords, does the Minister agree that it is important for the arrangements for statistics to be independent of the Government and the Treasury? In the arrangements for the new Statistics Board, which Minister will bat against the Treasury when the question of resources comes to be debated?

My Lords, I assure the noble Baroness that, for the foreseeable future, the Treasury will remain part of the Government. Therefore, splitting the concept of the two is an odd one. I emphasise that the Treasury will have overall responsibility with regard to the situation, but the noble Baroness will recognise that most of the debates about statistics revolve around particular policy areas. The debates are enjoined most fruitfully in the specific areas of those departments.

My Lords, does my noble friend recollect that the Chancellor of the Exchequer handed over the setting of the bank rate to an independent monetary committee? Does he recall that its reports are received with universal acceptance?

My Lords, what is recognised universally is the wisdom of that move and the success of the running of the economy, to which that particular feature makes its contribution, over 58 quarters of growth.

Economy

asked Her Majesty’s Government:

What assessment they have made of the current economic cycle.

My Lords, as set out in the 2006 Pre-Budget Report, national accounts data together with the Treasury’s trend assumptions implied a small negative output gap in the third quarter of 2006. The Pre-Budget Report forecast showed the economy returning to trend in early 2007 and latest data for the fourth quarter of 2006 are consistent with this forecast. The Treasury will update this assessment in the forthcoming Budget.

My Lords, I am grateful to my noble friend for that reply. Three weeks ago the Institute for Fiscal Studies published a green budget and concluded that the public finances are healthier now than they were in the year when the Chancellor took over from Kenneth Clarke. So there was quite a successful changeover. However, there is still a current annual deficit. The 2007 spending round is being prepared and a considerable slowdown in the amount of both current and capital spending is anticipated. Should not the reduction of the deficit be the important matter that the Government need to take into account now?

My Lords, it is certainly an important matter, but I think that my noble friend will recognise that we are heartened by the extent to which the trend reflects our recent forecast. Although we have still to make an update in the Budget, as I indicated, the Treasury is nevertheless confident that it has accurately defined its analysis of economic trends; and of course the Budget will set the framework for the next stage.

My Lords, the Institute for Fiscal Studies pointed out that of 22 leading OECD countries, 17 have improved their structural budget balances more than the UK. In fact, Standard and Poor’s went further to say that the UK slipped from 14th to 35th out of 41 European countries and was the worst performer of the AAA-rated countries. What are the Government’s plans for dealing with this serious situation?

My Lords, I do not think that we consider the situation serious, but it will be watched carefully, and the noble Lord will recognise that the Chancellor will take these dimensions into account as he prepares his Budget. But the noble Lord should give credit where credit is due. Not only has the United Kingdom economy in recent years performed exceptionally well against all international standards, but the Treasury’s forecasting perspective has been remarkably accurate. On that basis, we can look forward to the Budget with confidence.

My Lords, on that point, will the Minister pass on to Gordon Brown our congratulations on inventing a truly amazing game? You do not know where it started or where it is going to finish—the only thing you are sure about is that he knows he is always winning. When are we going to get an independent referee to tell us when the cycle ends?

My Lords, I confirm to the House that the Chancellor is always winning—certainly. The noble Lord knows that the judgment on the economic cycle is complex, but he will also recognise that there are fixed points in that analysis with regard to trend. The reason for the somewhat jocular fashion in which I responded to the noble Lord, Lord Skelmersdale, is that we are nearing the point when the trend has been established and we can therefore go on to the next stage.

I am sorry, my Lords; I shall not compete with my colleague. Is it not true that the Government’s economic record of low inflation and high employment constitutes a 40-year record? In my recollection that has never been achieved by anyone on the opposition Benches for 100 years or more.

My Lords, I am coming to the question, and you probably won’t like it. Does my noble friend agree that the Government should be congratulated on that record, and that the Tories should be challenged to produce anyone who could achieve half as much?

My Lords, would that all questions were so challenging. I emphasise only that this House benefits greatly when Labour Back-Benchers speak with such clarity.

My Lords, I ought to take the Minister back to the economic cycle. Does he agree that the main problem is that the Chancellor has changed its beginning and end so many times that the golden rule, which depends on the length of the economic cycle, has lost all credibility? Can the Minister name one respectable economic commentator who thinks that we should now place reliance on the golden rule?

My Lords, confidence in the golden rule is based on the successful operation of public investment in recent years and the successful conduct of the economy. The noble Baroness indicates that she never knows when these things start or end. However, I say to her with the greatest confidence that we are near the end, so she will be able to define the terms.

EU: Active Citizenship

asked Her Majesty’s Government:

What is the justification for using Article 308 of the Treaty Establishing the European Community as the legal base for the European Union’s decision to promote active EU citizenship when that article permits the EU to act only “in the course of the operation of the common market”.

My Lords, the Europe for Citizens programme promoting active EU citizenship uses a joint legal base, Article 151 and Article 308. The Government’s position is that Article 308 does not require that every proposal using it as its legal base should relate in a narrow and restrictive sense to the operation of the Common Market. The civic participation aspects of this programme go towards meeting various Community objectives.

My Lords, I thank the noble Lord for that Answer, which refers to a new €235 million propaganda campaign. Is it true that the Government overrode the Commons’ scrutiny reserve on this initiative, making 181 overrides between both Houses in the past three years? If it is true, what is the point of the scrutiny reserve and, indeed, of the scrutiny committee? Secondly, are the Government really now saying, as the Minister appears to have just said, that Article 308 and other clauses in the existing treaties can be used to pass pretty well any integrating proposal in the Council, thus allowing the failed constitution to be put in place piecemeal and illegally, to the point where the proposed referendum in this country becomes superfluous?

My Lords, on the noble Lord’s first point, the Government take the role of the scrutiny committee seriously. The noble Lord will recognise that the Minister in the other place took steps to assure the scrutiny committee that what had happened in this case ought not to have happened and will not happen again. On the noble Lord’s second point, he extrapolates too far. We are talking about a general programme of citizenship and shared values. To suggest that because Article 308 has been used in this context such an initiative has created a basis on which the whole European constitution can be revisited, via Article 308, is a step too far.

My Lords, can the Minister explain why, like others, he is obviously puzzled that the noble Lord, Lord Pearson, is so obsessed by Article 308, a relatively innocuous article which was included in the original Treaty of Rome? We accepted that article when the United Kingdom carried out its very prolonged entry negotiations. It has been used occasionally for slightly wider but very innocuous purposes. Why is the noble Lord, Lord Pearson, concentrating on that instead of on the UKIP campaign to leave the Community, which is more important to the public? Was not the Minister also shocked that in the previous exchanges we had on this subject on 17 January, the Tory anti-EU spokesman objected to the Government not blocking the EU tsunami rescue scheme for third countries?

My Lords, I have many responsibilities but responsibility for the noble Lord, Lord Pearson of Rannoch, is not one of them. I want to emphasise that we do not regard Article 308 as the Trojan horse of the European constitution. It is being used in this context in a very limited way. The noble Lord, Lord Dykes, is right to refer to the previous circumstance in which it was used, with regard to tsunami relief, one which also commanded wide assent. Let us just reflect on the fact that it can be used only with the Council’s unanimous consent. Therefore, the idea that it would be used easily, readily and flippantly, or against significant opinion within the European Community, is quite wrong.

My Lords, does the noble Lord appreciate that it is not a question of whether anyone is obsessed with Article 308 but whether it is being used properly? Does he agree that it is plain wrong—and indeed unlawful—to use Article 308 to advance measures which are not in furtherance of the Common Market, and that that use cannot be made right when it is plainly wrong in law just because all the member states want to use Article 308 in a particular case?

My Lords, matters are a little more complex than the noble Lord has indicated. It is the case that with the Council’s unanimous consent, and I might say with Parliament’s approval, Article 308 can be used in association with Article 151 to give effect to this programme. Therefore, the legal basis is not Article 308 but Articles 308 and 151 combined. That is how the Government reached the decision that the basis was a proper and legal one for action and that has been supported across the Community.

My Lords, I congratulate my noble friend on answering 75 per cent of the current cycle of Oral Questions. However, is this not carrying the concept of active citizenship a little far?

My Lords, given that this is a complex matter, as the Minister has said, and that there is concern about how a treaty provision may be used in future, will he consider outlining in writing to the House, and putting in the Library, the criteria by which the Government believe that Article 308 should be used so that both they and the House can refer to that in the future?

My Lords, the noble Lord will recognise that that is exactly what my right honourable friend Mr Hoon did with regard to the Commons position on this issue. He identified why the action had been taken in these terms and the basis for it.

My Lords, what concerns me very much is the Government’s use or misuse of the scrutiny reserve. In 1990, it was made perfectly clear by Parliament, and by the House of Commons in particular, that nothing should be agreed until full debate had taken place in both Houses. However, the Government have used the scrutiny reserve 108 times, a misuse of the power that Parliament gave them. I wish they would get back to accepting Parliament’s rule that matters should not be agreed until Parliament has had proper scrutiny of them.

My Lords, as I indicated to the House earlier, an apology was given to the scrutiny committee in the other place because a mistake was made which pre-empted the position. It is not intended that such a thing should happen again in that way.

Railways: East Coast Main Line

asked Her Majesty’s Government:

Whether the past performance of train operating companies will be taken into account in evaluating the bids for the new east coast main line franchise.

My Lords, yes. Companies that wish to bid must provide comprehensive evidence of their ability to operate in a safe, reliable and sustainable manner. That evidence must include specific details of past, present and planned operational and commercial performance in either rail or other passenger transport services.

My Lords, I am grateful to my noble friend for that Answer. In the case of the GNER franchise, on which there will be an announcement soon, has First Great Western submitted evidence about its recent performance? There have been delays, cancellations and a lack of standing room, so you cannot even get on to the train, while 12 trains sit in a siding. Does my noble friend believe that such a track record would encourage people to travel from Edinburgh to London, perhaps standing all the way, when the company has parked up half its trains in the siding to save money?

My Lords, First Great Western’s performance problems are well known and have been well advertised. The department monitors those issues carefully. However, it is entirely open to First Great Western to enter the bidding process for the current GNER operation.

My Lords, can the Minister be much more specific? Is past performance taken into account when companies pre-qualify or when they submit their final bids? If it is when they submit their final bids, how is it valued in monetary terms?

My Lords, it is taken into account at all stages of the process. Past performance is extremely important, as I am sure the noble Lord will be aware; it must be fully and robustly assessed when the franchise is let.

My Lords, why have the Government insisted on using the minimum timescales allowed under EU law for the submission of bids for this franchise? Only 18 working days were allowed for the completion of all the necessary documents and for legal and financial preparation, so that only those companies that made failed bids last time were able to meet the deadline. That has ruled out several interested bidders and limited the number of bidders, particularly those that were unsuccessful as recently as three years ago.

My Lords, I am aware of some concerns about the bidding period, but it is right that we stick to that timetable. Companies were well aware of the process and will, no doubt, be well aware of the other stages of the franchise-letting arrangements. The system is well understood and should work well in this situation.

My Lords, I travelled down on the east coast main line this morning, together with several noble Lords, and benefited from at least some of the splendid catering, although not the Great British Breakfast. The catering on that line is well thought of. What account will be taken of the quality of train catering in looking afresh at the franchise?

My Lords, it might surprise the noble Lord to know that, when I was being briefed for this Question, I asked exactly the same question. Someone reminded me that I had answered a Written Question on that point some weeks ago. Of course catering is important. Franchise bidders will be required to provide a high-quality service at stations and on trains, but it will be for bidders to determine the appropriate level of catering offered on board. GNER has a particularly good track record in that respect, and I have enjoyed the Great British Breakfast on a few occasions.

My Lords, those of us who travel on Virgin trains envy the catering provided by GNER—or whichever company takes over the franchise. However, does the Minister accept that there is widespread belief in the railway industry that, since the Government decided to micromanage the franchises and the franchising procedure, all they are looking at is minimum service and maximum premiums? Can he say anything to disabuse the railway industry of that view?

My Lords, my noble friend is very knowledgeable on these matters; he touches on a subject that is obviously one for public comment and debate. I happen to disagree with his latter comments. I was drawn to conclude that GNER provides a better breakfast than Virgin, but that is just my personal view.

My Lords, will the noble Lord accept that there is a general appreciation of the quality of the service on the east coast main line?

My Lords, that is true, but we must continue to work to drive up the quality and standard of services. We will ensure that the franchising process delivers the highest quality of service that can be afforded on that line to maintain the improvements achieved so far.

My Lords, east coast passengers have been accustomed to a very high standard of service for a long time. Will that standard of service be protected in the franchise-bidding process?

My Lords, do we not want an excellent service throughout the country? Is the franchising system the best way of achieving that? After 10 years, is it not about time that the Government looked at the whole basis of the railway system in this country?

My Lords, we can always rehearse history, and in recent months the party opposite has begun to apologise for introducing rail privatisation when and how it did. However, we have a franchising system and it is our duty and obligation as a Government to get the very best from it. That is what we are achieving. More people are travelling on trains now than at any time since 1960 and more people are coming back to the rail network, having realised that it can provide high-quality services and speedy transportation.

Business

My Lords, with the leave of the House, at a convenient time after 3.30 pm, a Statement will be repeated by my noble and learned friend Lord Falconer. The subject is “House of Lords Reform: Voting Procedure”.

Delegated Powers and Regulatory Reform Committee

Merits of Statutory Instruments Committee

Privileges Committee

Constitution Committee

My Lords, I beg to move the Motions standing in my name on the Order Paper.

Moved, That Lord Faulkner of Worcester be appointed a member of the Select Committee in the place of Lord McIntosh of Haringey, resigned.

Moved, That Baroness Adams of Craigielea be appointed a member of the Select Committee in the place of Baroness Morgan of Drefelin, resigned.

Moved, That Lord Eames be appointed a member of the Select Committee in the place of Lord Browne-Wilkinson, resigned; and that Lord Woolf be appointed a member of the Select Committee.

Moved, That Baroness Quin be appointed a member of the Select Committee in the place of Lord Carter, deceased.—(The Chairman of Committees.)

On Question, Motions agreed to.

Government Spending (Website) Bill [HL]

My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.

Moved, That the order of commitment be discharged.—(Baroness Noakes.)

On Question, Motion agreed to.

Mental Health Bill [HL]

Report received.

1: Before Clause 1, insert the following new Clause—

“Guiding principles: incorporation in the 1983 Act

(1) Part 1 of the 1983 Act (application of Act) is amended as follows.

(2) Before section 1 (application of Act: “mental disorder”) insert—

“Guiding principles A1 Application of Act: guiding principles

(1) In the discharging of a function by virtue of this Act, a person shall have regard to—

(a) the importance of the patient participating as fully as is possible in the discharge of the function; (b) the present and past wishes and feelings of the patient which are relevant to the discharge of the function; (c) the principles of non-discrimination contained in— (i) the Sex Discrimination Act 1975; (ii) the Race Relations Act 1976; (iii) the Disability Discrimination Act 1995; and (iv) the Equality Act 2006. (2) After having regard to the matters mentioned in subsection (1) above, the person shall discharge the function in the manner that involves the minimum restriction on the patient that is necessary in the circumstances.””

The noble Earl said: My Lords, we begin our Report stage by returning to an issue that occupied us in Committee for several hours and which, of all our Committee debates, perhaps elicited the most support from around the Chamber. I refer of course to the case that I and others put for including a set of key overarching principles in the Mental Health Act.

The reasons for wanting to do that are very simple. First, we need a clear statement from Parliament about the values that should inform and guide those tasked with putting the Act into practice. Secondly, we need to reassure the public and those in receipt of mental health services under conditions of compulsion that the values and principles set out in the Act should permeate how those services are provided. Thirdly, we need to give greater clarity and certainty to the courts, which over the years have been asked to rule on numerous challenges to the Mental Health Act on human rights grounds.

A view expressed in Committee was that a good code of practice can be more effective in law than can principles in a Bill. Some people believe that practitioners will use the code more readily than the law. The code is indeed indispensable in that sense, but we are dealing with no ordinary legislation. This legislation provides for individuals who have committed no crime to be detained and treated under conditions of compulsion and to be subjected to procedures and treatments that are highly invasive. The inherent three-way tension in the Bill between the rights of patients, public safety and avoiding the excessive and inappropriate use of coercive powers makes it essential to have clarity about the underlying values.

Those considerations, above all, have led me and many other noble Lords to conclude that not simply the code of practice but the Act itself must enshrine a set of relevant principles to guide those who interpret and implement it. We know that practitioners regularly refer to the Act itself, and that the Act has a far greater influence on case law than the code of practice. Indeed, case law says that the code of practice can be departed from according to circumstances but that guiding principles are of general applicability.

In Committee the Minister made it clear that his objection to including principles in the Bill was not so much constitutional as a worry about their practical impact. I have never concealed my view that the principles are designed to have a practical impact; indeed, that is their whole point. It is clear from the Act as it is now that various principles are already implicit in it. The noble Lord, Lord Hunt, took us through those. I share his view that nothing should be done to the Mental Health Act that might detract from its clarity. I believe that his fears about possible unhelpful conflicts between what is implicit in the Act and what is explicit in the Committee amendment were overdone.

Since Committee, I have had the benefit of private discussions with the Minister, for which I thank him. I have taken careful note of the points he made about the possible risks involved in framing an amendment of this nature. I have also borne in mind the Government’s comments in response to the joint scrutiny committee indicating that a limited set of broad and general principles would be acceptable if properly drafted. I see nothing whatever difficult or contentious about the principles for which I argued in Committee. They are all important.

Nevertheless, this amendment is briefer and less ambitious than the earlier one. It is designed to enshrine four principles of general applicability, which I hope and believe do not conflict with the interpretation of the Act as it currently exists. They are: patient participation; the importance of having regard to the patient’s past wishes and feelings; the avoidance of unfair discrimination in all its forms; and the principle of least restriction.

I argued for all of those in Committee and do not propose to repeat the points I made then. Let me simply say this: the way to make the Mental Health Act work in its revised form is to give patients and service users maximum confidence in it by making them feel that they are still trusted and that their views matter, even if they are, at that very moment, being subjected to coercion. We know from reports by the Mental Health Act Commission that too many patients feel excluded from decision-making and that that feeling of exclusion exacerbates non-compliance. Equally, we have only to think back to our debates on the Mental Capacity Bill to remember that the wishes and feelings of the most vulnerable in society are of central importance to the way in which medical practice is now moving.

The Minister may criticise as legally superfluous the part of the amendment dealing with non-discrimination, but even something legally superfluous can have value. It has a declamatory value to a patient who has been on the receiving end of discrimination and prejudice in any of its forms and it also has a powerful symbolic value, reflecting the priorities of Parliament and the feelings of society more generally on mental health law. The fears experienced by black and ethnic-minority communities need to be in our minds most particularly. We know that discrimination towards patients from those communities is commonplace. The consensus in the BME Mental Health Network is that specific measures must be built into the Act to set the parameters of acceptable behaviour by mental health professionals.

Finally, there is the principle of minimum restriction. Minimum restriction should apply not only when detention has taken place but also at the earlier assessment stage, when practitioners need to think about whether all other alternatives to compulsion have been exhausted. The principle relates to how the powers under the Act are used; for example, in granting leave of absence or supervised discharge and in the form of treatment given. The way that those powers are used can, for good or ill, profoundly affect the patient’s recovery and his degree of engagement with mental health services in future. People who are subjected to coercive measures undergo dreadful trauma and deep humiliation, often at a considerable social cost. A principle that makes clear that such powers must only ever be used with the utmost care and discretion seems essential. I know that the Minister has given these issues a lot of thought since we debated them in Committee, and I hope that he will give us an answer that reflects those deliberations in a constructive and positive way. The case for the amendment is overwhelming. I beg to move.

My Lords, in Committee I raised the question of what mental health legislation is for. I return to that matter today. It goes to the heart of why we need principles in the Bill. Like the noble Earl, Lord Howe, I have been involved in detailed discussions since Committee about whether it is possible or desirable to include principles in the Bill. I have gone away from every meeting trying to answer the question of what difference it would make in practice. The answer came to me after I listened to two people.

The first person was Professor Appleby, the Government’s mental health adviser. On 30 January, in a meeting with a number of all-parliamentary groups, he talked about the role of mental health legislation. He said that it is possible to take one of two approaches: either you believe that mental health legislation is about enshrining rights and responsibilities—in which case practitioners are looking over their shoulders all the time to make sure that what they are doing is correct—or you believe that there should be a limited role for the law and that practitioners should be allowed to carry on and get on with the job of making people better. Those were perhaps overstated positions but they clarified for me the role of mental health legislation. It is about setting out, using the best knowledge available to us, what we believe is the ethical basis of legislation. This legislation governs the only form of treatment that can be given to a person compulsorily against their wishes—the only detention outwith the criminal justice system.

The second person who gave me some clarity on the matter was the Minister. In our discussions in Committee he talked about the 1983 Act. He said that it already contains overriding principles,

“albeit that they are inherent in its provisions and not separately spelled out”.—[Official Report, 8/01/07; col. 47.]

He went on to list six, one of which is the principle of least restriction. Twenty-three years on, arguments are still raging about whether that principle is enshrined in that legislation, and, if so, to what parts of mental health practice it applies. It is no wonder that practitioners look over their shoulders. There is a lack of clarity about the law.

I have listened very carefully, not least to the noble Lord, Lord Soley, who in Committee talked very convincingly about dealing as an MP with very difficult cases of people with a mental illness causing extreme problems for other people. However, I have concluded, for the reasons I gave, that unless we have not only a clear statement of principles in the legislation but also clarity about how the legislation and the code of practice work together, we will condemn practitioners and people subject to this law to continuing confusion. That, I believe, would be wrong when we have the chance before us to shed light on the matter.

My second point is, again, one that I raised in Committee. If we accept that there should be principles, what should they be? The noble Earl, Lord Howe, has explained why this time around the amendment, which stands in both our names, has been changed to accommodate some of the problems that parliamentary counsel outlined. I accept that we had to change the provisions, just as those of us who worked on the Mental Capacity Act did when we were trying to achieve the same ends. Parliamentary counsel explained that we could not use the standard equalities and diversity format that one would use elsewhere.

I want to return to the principles in the code of practice and to take issue with how some are written. The participation principle in the code of practice talks about care or treatment being provided in such a way as to promote patient participation, self-determination and personal responsibility to the greatest practicable degree. It is not clear exactly what that means.

In the “respect for others” principle, the code talks about people being treated with respect and the respect for wishes and feelings so far as they are known. At a later stage we will talk about the efforts which should be made to record a patient’s wishes and feelings and how practitioners need to take account of them.

The principle of minimum restriction in the code of practice is ambiguous. It talks about restriction and keeping the use of compulsory powers to the minimum necessary—“the minimum necessary” to do what? I hope that the Minister will accept that there is a case not only for including some principles in the Bill but also for an explicit statement about how they will interact with principles in the code of practice.

As the noble Earl, Lord Howe, said, the reason for that is not pedantry. It is perhaps one of the most important decisions we can take. The aim is to end up with legislation that not only appeals in that it has a principled nature but in practice offers security and clarity to those who will be subject to it and those who have to operate it, whose professional reputation rests on it. I believe that we have come to, if not a perfect compromise, a way forward and I very much hope that the Minister will accept that.

As we have said, we have an opportunity that comes but very rarely to Parliament to make legislation that will affect the lives of many vulnerable people. I hope that in doing so, we will pass legislation that is fit for purpose.

My Lords, first, I acknowledge the comments made by the noble Earl, Lord Howe. He has made a significant improvement on the original amendment, which I welcome. I do not know whether the Government plan to accept it or not. I still have some concerns. They are twofold.

First, if you ask a person exercising authority under the Mental Health Act to take into account the Race Relations Act, the Sex Discrimination Act, the Equality Act and so on, you are putting in their mind when they take a decision to discharge or admit that they may face a legal consequence under one of the linked Acts if they get that decision wrong. That is a problem. I do not think that most professionals in most areas read the full Act other than once or twice in their lifetime, so guidance is more important. At times in both this House and the House of Commons, we set ourselves a double bind. We call for less legislation, but we put things in Acts that require people to jump through even more hoops in order to take a decision. We must be aware of that balance.

To my mind, the key Act here is the Race Relations Act. In our previous debate, every one of us acknowledged that there is a major problem in the psychiatric area generally with the excessive treatment of people from ethnic minority communities. We must ask, first: do we deal with that by inserting a reference to the Race Relations Act in the Bill? Secondly, if doctors, nurses and others have that in the forefront of their mind, what effect will it have on their decision-making? It might result in them facing legal action. That is a problem for them.

I have felt for many years—I do not think that this will be deeply disputed—that part of the reason why we have an excessive number of ethnic minorities in psychiatric institutions is a lack of doctors from ethnic minorities, something that the medical profession needs to put right and pay more attention to. The other factor, which is deeply unquantifiable, is the extent to which the pressure on ethnic minority individuals in the community as a result of their being from an ethnic minority and perhaps experiencing extremes of racial hostility, may trigger or accentuate a medical condition that would not otherwise be picked up, or even be a problem. We need to focus on that area, rather than just saying that the doctor, nurse or whoever must be aware of the Race Relations Act. There is still a problem with that.

I would not lose too much sleep if the Government accepted the amendment in its current form, but I would be worried that in time we might find ourselves arguing that this should not have gone into the Act because it imposed a duty on professionals that was unreal and that perhaps tempted them not to take actions that they would otherwise take. It is a very real dilemma, and I have no criticism of the intentions of the other two speakers or of the other noble Lords who have added their names to the amendment. Indeed, I believe that we all share those intentions. It is, as always in legislation, a question of whether you deliver those intentions or whether you inadvertently put other barriers and hurdles in the way that cause a problem.

I hope that the Government will give considerable thought to the amendment before deciding whether to accept it, although I welcome it as a significant improvement on the other amendments in the list. There were contradictions in that list, which again indicates the problem; I suspect that if you trawl through the various Acts referred to in the amendment, you might find contradictions in them, too. We are passing something that must stand up not only in our opinion or in a code or guidance, but in a court of law, and under which a professional will have to decide whether they are in danger of being in breach not only of what will become the Mental Health Act but of one or more of the other Acts referred to therein.

My Lords, this debate and the whole debate on principles are about legal clarity. If the courts have legal clarity, they can enforce laws made by Parliament. If they do not have legal clarity, I am afraid that we will get laws made by judges, because they will be left to interpret opaque determinations by Parliament. The rule in Pepper v Hart enables courts to look particularly at ministerial statements made in debates such as this. Pepper v Hart discussions are a poor substitute for clear and enforceable law. The Minister will know that there is no area in which judges are more inclined to make or reinterpret law than in the area of judicial review. I urge him, when he responds to the debate, to take the view that the more clarity that emerges from this Parliament, the less likely it will be that judges, who can sometimes be naïve in their interpretation of that often hilarious concept—the intention of Parliament—will try to interpret what we have decided in a way that is far departed from our true intention, if we understand that intention.

I am sure we all agree in this House that it is essential that some people should be detained compulsorily. However, those who are so detained can face long detentions, sometimes for the whole of their natural lives. Those of us who have visited hospitals such as Rampton, Broadmoor, and St Andrews in the private sector, have seen very high quality care provided for mentally disordered people in those institutions. But it needs to be very high quality, because such institutions are accommodating them for a very long time. Furthermore, in many cases, they are accommodating people who do not understand why they are detained compulsorily or who are unwilling to be detained for as long as they come to be. I am sure we would all agree that it is essential that those who are detained should have a right to challenge that detention, which both they and the courts should understand with certainty. It is essential that the basis—the principles—on which they are detained are understood.

In 1999, which is seven and a bit years ago now, the expert committee chaired by Professor Genevra Richardson, now of King’s College London, not only recommended that principles should be set out in the mental health Bill that it was considering—the first version of a three-edition attempt to reform the law—but set out those principles in its report. The Mental Health (Care and Treatment) (Scotland) Act 2003 set out in legislative form the principles that underline all decisions about compulsory detention in Scotland. Some pretty insulting discussions have taken place in this House about the size of Scotland and differences between Scotland and England, but I understand that there is no difference between Scotland and England and Wales in terms of the removal of freedom from citizens of the United Kingdom. I am puzzled at how the Government can justify a difference between citizens of the United Kingdom living in Scotland who are detained and citizens of the United Kingdom living in England and Wales who are detained, and I remain to be persuaded that there is any sound basis for it.

In March 2005, the joint scrutiny committee, supported by evidence from the Joint Committee on Human Rights and numerous others, reported that it was essential for principles to be in the Bill. Whatever the Minister says today, the Government have had over seven years to consider this. During those years they have indulged in a form of intellectual hokey-cokey that is perplexing to those of us who try to take a serious and consistent view of the issue of principles, and the Minister will be aware that when the Government responded to the joint scrutiny committee, they indicated that they were well disposed to including at least some principles in the Bill. The joint scrutiny committee set out the principles we believed should be included, and although the Government did not indicate that they accepted them all, they certainly did not make it clear in their response that they thought that no principles should be included or that they should be minimalist. Surely a strong argument can be made for consistency on this issue between different pieces of legislation. The Children Act 1989 and the Mental Capacity Act 2005 include principles, and the purpose of those principles in these complex Acts is clear. As the committee said, they make clear to everyone implementing the legislation what they are trying to achieve and what considerations should guide their actions. I suggest that those principles and that form of clarity should be jettisoned only for sound and compelling reasons.

I am reluctantly prepared to support this amendment because I regard it as minimalist; it is better than nothing, but it is nothing like what the joint scrutiny committee wanted. I shall listen with great care to the Minister, but I urge him not to try to persuade the House that nothing is something, because we will not be persuaded. As the former chair of the joint scrutiny committee, I for one am absolutely determined that if the Government do not make a meaningful concession in this regard, we will return to this issue in the future.

My Lords, I should like to make a short contribution to the debate. The Minister has argued that we cannot have principles in the Bill for practical reasons as it may lead to a “lack of clarity” and a “lack of understanding” by practitioners. It would seem that this conflict arises only in the current Bill because the Government previously accepted the value of including principles in the 2004 Bill and, as many noble Lords have pointed out, they included guiding principles in the Mental Capacity Act 2005. But, leaving that aside, I shall address the one area which the Minister did not address—non-discrimination. I wish to say something about just one aspect of it in respect of race equality.

First, I have a real problem with the idea that practitioners would be confused by a principle of non-discrimination. Having looked through the current Act, I cannot find mention anywhere of the idea of discriminating on the basis of ethnicity, race or any other area; so I fail to see where conflict would arise. Secondly, we have all spoken at great length about the inequalities faced by certain ethnic groups in our mental health system. Regrettably, we are still failing to do enough to rectify or alleviate the situation. The principle of non-discrimination regarding race equality in this Bill would be, I would argue, only one small step towards reassuring the black and minority ethnic communities and those delivering services that we are serious about addressing these failings in our mental health provision.

Finally, if it is true, as the noble Baroness, Lady Barker, stated in her opening comments when we first debated the Bill, that this is actually a Home Office Bill masquerading as a health Bill, and it is the Home Office which is really opposed to having principles on the face of the Bill—I urge the Minister to remind his colleagues that more than a quarter of the prison population are from black and minority ethnic backgrounds, that stop and search figures for black and Asian young people continue to rise, and that disproportionate numbers of black people are referred to mental health services via the criminal justice system rather than primary care services—perhaps the Home Office should have principles on the face of its own legislation.

My Lords, I support the amendment which, as I understand it, places these principles not only in the Bill but, by extension, in the 1983 Act.

I welcome the amendment for three reasons; the first is to do with transparency and clarity, a point that has already been made. I speak as a mere layman in matters of law, but it seems that clarity and transparency are essential not simply for the sake of those who are called upon to make judgments in these matters but for the general purpose of the public, who need to understand what this is all about.

Secondly, I, too, believe that there needs to be consistency with other Acts, particularly the Mental Capacity Act. The principles would provide a parallel with those set out in that and other legislation.

Thirdly, the principles are entirely consistent with the Judaeo-Christian understanding of the dignity of human beings. However, it is not simply the Judaeo-Christian understanding but one with which people of a humanist or secularist bent would be perfectly happy to identify. It is difficult to see how the principles of maximising patient participation, taking account of patients’ feelings and wishes, the avoidance of discrimination and of least or minimum restriction could ever be thought outdated or irrelevant.

I believe that the amendment will provide useful guidance and constraints on treatment and go some way to meeting the remaining anxieties about the effect of the powers in the Bill on people with mental health problems.

My Lords, I welcome the amendment in principle, but I share the concern of the noble Lord, Lord Carlile of Berriew, that the principles it contains do not go as far as those which we discussed in such marvellous detail on Second Reading and in Committee. I am speaking particularly on behalf of one other minority—those in custody. I have not discussed the movement that has happened since the Committee stage between the Minister and the noble Earl, Lord Howe, but I have taken soundings from those who are responsible for the delivery of mental health services to those in custody. They are all very concerned that codes of practice do not tend to apply, whereas principles may.

The reason why principles are so important is that the Government made great play of the fact that those in custody should receive exact equality of treatment with those outside. Unless that equality is enshrined in principle, I can see all sorts of reasons and excuses why that should not apply. Therefore, although the amendment goes so far, I hope that there is still time to make certain that those in custody and their needs are enshrined in principle somewhere in the Bill. The well of psychiatric morbidity in our custody system is something this country needs to take care of and should, frankly, be ashamed of.

My Lords, I declare an interest as chief executive of Turning Point social care, which provides a large number of mental health services in England and Wales. I will speak briefly but, I hope, strongly in support of the amendment. The noble Lord, Lord Carlile, has already mentioned the Scottish position, and I want to bring home, in case we hear again that principles will confuse practitioners, the reality of having principles on the face of the Bill, as applies in Scotland. I quote from Dr Mark Taylor, a consultant psychiatrist in Glasgow, who has worked on a number of tribunals, both before and after the new Act. He was seconded to the Scottish Executive to help with mental health Act training. He believes that,

“it would be helpful for all parties to have principles”.

The principles promote best practice. For example, a lawyer can question a psychiatrist as to whether he has adhered to the principles as far as he can, and this in turn encourages the psychiatrist to consider in advance of a tribunal any issues raised by the principles.

I will refer to an example of how the principles of “present and past wishes” and feelings translate into practice in Scotland. When Alex was admitted under compulsory powers, he was acutely unwell but had a degree of insight about his previous experience of mental health care. Taking note of the principle, the clinician specifically asked him about which treatments he felt had been particularly helpful or unhelpful in the past. As the clinician used this information as the basis for his care plan, Alex was far more inclined to co-operate with his subsequent treatment. Because of the inclusion of principles, trust underpins the whole operation of the Scottish Act. Principles would help to foster trust in the mental health system in England and Wales. Two people using Turning Point’s mental health crisis services illustrate the lack of trust in the current system. They had no hesitation in telling me:

“Because of my experience in hospital, I do not tell any of my workers when I am feeling unwell. I don’t ask for help in case I am sectioned. Being sectioned is intrusive rather than supportive”.

In short, the more service users have confidence in the system and in the people working with them, the more likely they are to be engaged in their treatment, leading to better outcomes for them and for society as a whole. Trust is especially important, as we have heard from many noble Lords, for those from BME backgrounds. For example, for African and Caribbean communities, discrimination and mistrust mean that contact with mental health services is more likely to be coercive, as we have heard from the noble Lord, Lord Patel of Bradford, and involve the police, making it more difficult to develop therapeutic clinical relationships with patients. Those poor clinical relations lead to less compliance with treatment and poor outcomes, leading to increased use of coercion and increased distrust. It is a vicious circle. We need a step change in the way in which mental health services are perceived. If this Government are serious about increasing confidence and engagement—I believe they are—principles cannot be left to the code of practice. They must be given the weight, visibility and priority that can come only with inclusion in the Bill.

My Lords, those who would be implementing this legislation are healthcare workers. They are not prison officers, policemen or lawyers. They are not used to the idea that their work involves compulsion, coercion and detention. This is a singular episode from their point of view. Therefore, some guidance is required in the Bill as to how their work should proceed in this unusual coercive, detained context.

To put it briefly, I take what the Minister said in the previous debate that a smaller number of principles could produce clarity. Healthcare workers do refer to the Act on a Friday night when they are trying to address these matters; they do not get involved with a huge code of practice. A brief series of principles that lays out clearly how the compulsion, detention and coercion are to be conducted, in a way that is not à la the prison or the police cell but is in a caring context, would add considerably to the comfort of patients and indeed of their carers.

My Lords, I apologise for not having spoken in Committee but I was unavoidably elsewhere. I will just say one or two words of support for the principle of having principles on the face of the Bill. It would be invaluable to have them there, for all the reasons that have been rehearsed here, both today and previously.

However, I have one or two concerns about these particular principles. My first concern relates to the phrase,

“present and past wishes and feelings of the patient”.

Of course, the feelings of patients are vitally important. My difficulty is how to define those on the face of the Bill. I wonder whether the words “and feelings” are helpful.

My other concern relates to the referral to the other Acts. Presumably the other Acts are all in force. I am unclear whether it is essential to have referrals to those Acts in the Bill because, presumably, someone would be acting illegally if they contravened, for example, the Sex Discrimination Act irrespective of whether or not it is mentioned in this Bill. I wonder whether those Acts should be there.

I hope my noble friend will take into account the strength of feeling around the House.

My Lords, I am sorry that the amendment is not as detailed as the one we discussed in Committee. I thought that the Government’s argument against that amendment was extremely weak. We were told that because of the way in which the Bill amends the 1983 Act, it was very difficult for the draftsman to know whether all the principles would be in the list. That was a pathetic argument. If the draftsman could not ensure that we should not be pursuing this legislation. But now we have a much simpler amendment which, from the way people have been talking, is less satisfactory than the previous amendment but better than nothing.

I was not sure about the argument of the noble Lord, Lord Soley, that because four other Acts are mentioned in the amendment it might make practitioners more liable to prosecution under those Acts. But such law exists and if for some reason people went astray they could be prosecuted under those Acts anyway. So it would not make any difference; it is just a way of identifying principles of discrimination.

The point made by the noble Lord, Lord Carlile, about the principles on the face of the Scottish Act is very important. Should we be legislating in the United Kingdom about the liberty of people with mental illness on grounds of different principles on different sides of the Border? I shall say something later about what the Minister said when he described the differences in another aspect of the Bill as one of the beauties of devolution. It is not a beauty of devolution if one’s liberty is threatened on different grounds on two sides of a border in the same nation. That is a very unfortunate aspect of the Bill.

However, the Government seem determined to do this. I detect from the debate that they prefer this amendment to the one in Committee and perhaps they will see their way clear to putting principles, which according to their lights are appropriate, in the Bill. I support my noble friend.

My Lords, as in Committee stage, we have had a very good debate on the question of principles and I hope to offer noble Lords a constructive way forward.

There is no disagreement between the Government and noble Lords who have spoken today. Like the noble Earl, Lord Howe, we wish to see a clear statement of values, as he described it. Nor is there any argument about the need for as much clarity as possible both within the legislation and the code of practice. We could have a theological debate about the thousands of practitioners out there and the extent to which they consult the legislation and the code but it is clear that, collectively, we have to ensure that practitioners understand both the legislation and the guidance. That understanding goes together.

The Government’s concern all along has been with the way that the amendments have been put forward. Although it appears to be straightforward to add a number of principles to the Bill, unless these things are drafted as carefully as possible, far from giving clarity, there could be confusion among practitioners. That is why we have been working hard to see whether we can find a way through that accommodates the clear wish of noble Lords and practitioners to understand fully the principles that inform the way this legislation will be dealt with and practised, at the same time as ensuring that we clarify and not confuse.

There is no argument that the principles that underpin a Bill that amends an established Act, which enables people to be deprived of their liberty, are of critical importance. Deprivation of liberty is a serious issue and we must deprive people of their liberty only when it is essential to do so. We have to achieve the right balance of powers to intervene to prevent harm and to safeguard an individual's rights. However, in the light of comment on the Bill over the past weekend, I want to emphasise that the intention is not to lock up more people or to keep people unnecessarily under compulsory powers once they have been detained in hospital. The Bill is about ensuring that people who need treatment, because they have a mental disorder that is so serious that they are a danger to themselves or others, get the help and protection that they need in the right environment. We want to reduce the incidence of patients with a mental disorder losing touch with mental health services after being discharged from hospital, getting ill and reaching a crisis.

It is clear that the principles that we have debated today and in Committee would provide reassurance about our intentions with the legislation. In Committee, I explained some of the problems that we have with including principles in the Bill. I know that the noble Baroness, Lady Carnegy, criticised the government response, but in my winding up speech I said that it was not about the niceties of parliamentary draftsmen. Because of the way that these amendments would appear in the Act, there is a danger that, instead of the clarification that she seeks, considerable confusion and uncertainty could be caused for practitioners.

The noble Lord, Lord Carlile, mentioned, as he did in Committee, the Mental Capacity Act and the Scottish Act. Much water has flowed under the bridge over the past eight or nine years but the Government have decided to produce an amending Bill not a comprehensive new Bill covering all mental health legislation. Consequences flow from that. One is that it is not easy to simply graft the principles that have been suggested on to the existing 1983 Act. I accept that the noble Earl, Lord Howe, and his fellow proposers have made every effort to respond to the points that I made in Committee two or three weeks ago. Their amendment would require all those discharging any function under the Act to have regard to each of the three principles and then exercise the function in the least restrictive manner—but even those principles, when placed in legislation, would raise some issues. The current Act makes specific and detailed provision for a multitude of different situations. Principles may already be given specific effect in the relevant part of the Act or may not in fact be relevant to every situation or, as my noble friend Lord Turnberg said, may conflict with each other or with the specific provisions of the Act. What weight is the decision-maker to give to the different criteria in that case? Is there a potential for him to be challenged because he has, for example, not complied with the patient’s wishes? Will patients who would otherwise be detained for treatment be released with consequent risk to public safety and their own because the decision maker thinks that the patient’s wishes and the need for minimum restriction must take precedence over the risk of harm to themselves and others?

The 1983 Act already embodies the principles that are proposed in the amendment. Part 2 of the Act provides the basic criteria for detention for civil patients. For example, to detain someone under Part 2 of the Act specific criteria must be met to ensure that hospital treatment under compulsion is both appropriate and necessary. First, the patient must have been examined by two medical doctors who must conclude that the patient is suffering from a mental disorder, and that that disorder requires treatment in hospital. But this is not all. The medical practitioners must conclude that the mental disorder is such that the patient is at risk of harm to themselves or to others. They must be able to determine also whether other methods of dealing with the patient are available, and, if so, must be able to explain why they are not appropriate. In addition to these strict criteria, it is a requirement of the process of detention that the patient participates in the process and that an attempt is made to ascertain their wishes and feelings. These principles are embodied in Section 13, which requires the approved social worker to interview the patient. The approved social worker under Section 13 must also satisfy themselves that admission to hospital is, in all the circumstances of the case, the most appropriate way of providing the care and medical treatment that the patient needs—and this embodies the principle of using the minimum restriction.

The need to allow the patient to make clear his views and to take account of them when considering admission is already catered for in the 1983 Act. What would be the effect of adding a requirement to consider separately the principles set out in the amendment? Does it mean that if the patient does not want to be detained he should not be, or should the fact that the statutory criteria are met outweigh the patient’s wishes and the minimum restriction principle? The answer is unclear.

In Committee, noble Lords expressed concern about the provisions for supervised community treatment, and amendments have been tabled to tighten the criteria for being placed on a community treatment order. This amendment requires the function to be carried out in a manner that involves minimum restriction necessary. It is at least arguable that supervised community treatment is less restrictive than detention in hospital. This amendment might cause confusion and uncertainty as to the use of supervised community treatment. It could also raise questions about the application of the specific criteria for supervised community treatment in light of the principle.

I refer to the remarks of my noble friend Lord Soley and the noble Lord, Lord Patel, on non-discrimination. The general laws on discrimination will apply to those who have functions under the Act. Many laws come under the discrimination banner; they are detailed and complicated and contain exceptions and qualifications. Practitioners are without question already subject to these laws. The amendment lists four laws, and states that people should have regard to the principles in those laws. Interestingly, none of those laws has explicit principles. The principles in those laws, as in the Mental Health Act 1983, are inherent in the provisions. Not all the provisions of the laws the amendment mentions will apply or have relevance to a person carrying out functions under the Mental Health Act. For instance, some of them relate to employment issues. Therefore, the amendment might cause confusion whether the practitioner should adhere to all the principles in each of those Acts, or only those that would normally apply.

We do not take issue with the amendment in principle but we are concerned about its practical effect and the confusion that it might cause. I have attempted to identify areas where that confusion might arise.

The noble Baroness, Lady Barker, and the noble Earl, Lord Howe, referred to discussions that took place. I want to respond to this debate as positively as possible and to meet noble Lords’ concerns. I recognise that they wish to see principles placed in the Bill. I suggest that that can be done in a way that will not cause the confusion that this amendment and the one tabled in Committee might cause. Therefore, I intend to introduce an amendment at Third Reading that will provide a requirement—I stress that it will be a requirement—based on Section 118 of the 1983 Act, which relates to the code of practice.

The amendment will require the Secretary of State and Welsh Ministers to include a statement of principles in their respective codes. I stress that it will be a requirement on the Secretary of State so to do. The amendment will also detail the key principles that the code will be expected to follow. I believe that that is a sensible way forward. It reflects the clear message that noble Lords and practitioners have given that they wish to see principles in the Bill. By requiring the Secretary of State to ensure that there are principles in the code of practice and to list in the Act the areas that the principles might cover will produce a satisfactory outcome which will not confuse but rather clarify the position. That outcome will acknowledge the point raised by the noble Earl, Lord Howe, right at the beginning on the importance of values.

My Lords, I apologise for interrupting the noble Lord but I hope that he will further clarify the issues that I raised about certainty in the courts. Is it the noble Lord’s understanding that the legislative device—I use that word in a neutral sense—that he suggests will mean that courts reviewing decisions will regard the principles in the code of practice as having equivalent status to similar principles in the Act?

My Lords, that is not what I am saying. The role of the code of practice is to guide practitioners in the implementation of the legislation. I do not believe that what I have suggested would in any way inhibit the clarity of the message that will need to go to practitioners. Putting the principles of the code in the Bill will meet the objectives expressed by noble Lords.

My Lords, this has been an extremely good debate. I begin by thanking the Minister for his constructive approach to the powerful speeches made from all quarters of the House. My noble friend Lady Carnegy and the noble Lords, Lord Carlile and Lord Ramsbotham, expressed disappointment that the principles set out in the Committee amendment were not all carried over into the amendment before us.

I readily concede that today’s amendment represents a compromise. That is not what I originally sought but I am enough of a realist to know that you cannot get everything that you seek first time around. However, in accepting the Minister’s offer to look at a government amendment at Third Reading, I hope that he will consider all the headings in the Committee amendment, which are of great importance individually, I say again. He will recall that that amendment was based very closely on the Scottish legislation, where apparently there is no problem about possible conflict between the Act and the principles.

It is not appropriate for me to say more than that. I will, however, thank the Minister again for having looked at this issue so carefully. I reserve judgment about the government amendment until I have seen it. The point raised by the noble Lord, Lord Carlile, is extremely material in this context. However, from the Minister’s description, I think that the formula he suggested will at least meet one objective: the point made by the noble Lord, Lord Adebowale, who brought home to us the importance of trust in the system on the part of those on the receiving end of compulsory detention. I look forward to further discussions with the Minister between now and the next stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

House of Lords: Reform

My Lords, with the leave of the House, I shall repeat a Statement made earlier today by my right honourable friend the Leader of the other place. The Statement is as follows:

“With permission, Mr Speaker, I should like to make a Statement on the procedure for the free votes on the composition of the House of Lords. In my Statement to the House on 7 February, I set out the Government’s proposal for using an alternative vote ballot to establish the House’s preferences on composition. I told the House that I believe that this would be the most effective way of the House being able to come to a decision on this issue, and outlined the difficulties posed in the use of our traditional Division system in eliciting multiple preferences. I took the view, and I still do, that this new system had many advantages.

“However, it became evident during the exchanges in the House on my 7 February Statement, and the next day during Business Questions, that my own enthusiasm for the new system is not as widely shared as I had anticipated”.

My Lords, the Statement continues:

“Indeed, there was vocal opposition to it from many honourable and right honourable Members on both sides. As Leader of the House, I have listened carefully to these views and reflected on them over the recess. I do not want discussions about procedure to overshadow the important substantive debate we will have on the future of the House of Lords itself. I think we all agree that we must not let process get in the way of a reform to which all parties are committed.

“I therefore wish to tell the House that we shall not be proceeding with the alternative vote proposal. Instead we shall revert for all votes to the traditional Division system. This will mean that there will be a series of resolutions put to the House for separate votes at the close of the promised two-day debate on Lords reform.

“We will consult the usual channels and interested Members on the exact form of the resolutions and their order.

“I hope that what I have said is for the convenience of the House”.

My Lords, that concludes the Statement made by the Leader of another place. The House will appreciate that this Statement was delivered by my right honourable friend the Leader of another place about the voting procedure for the other place. It has implications for voting in your Lordships’ House about which, with the leave of the House, I will say a few words.

We intended that your Lordships’ House should have the opportunity to decide whether to use any new voting method adopted by the other place. I refer to paragraph 11.7 of the White Paper. As the alternative vote proposal is not now being pursued in the other place, we do not intend to propose it for your Lordships’ House. The usual channels will discuss how to conduct the votes on the options, using the normal Division Lobby method of voting.

My Lords, I thank the noble and learned Lord for repeating this most unusual, but equally perfectly welcome, Statement and for confirming that this House will not have proportional representation-style STV voting of the kind so championed by the Liberal Democrats from time to time.

I am sure that the noble and learned Lord will recall that only two parliamentary days ago, shortly before the short recess, he made a Statement on reform of your Lordships’ House. He then waxed lyrical about his plan for preferential voting. He said it was,

“specifically designed to enable those voting … to come to a decision on this issue”.

He attacked the traditional way of voting, saying it was,

“no good—it does not work”.—[Official Report, 7/2/07; col. 713.]

Now, here he is popping up again, bold as brass, advocating the very system he told us only a couple of days ago was no good.

I hope that the noble and learned Lord will say what happened in the intervening period. It is all very well having a change of heart, and that is welcome, but what happened? Was it a change of heart from No. 10 or, indeed, from No. 11? After all, he did not answer when I asked him last time whether the Chancellor was fully behind the 50:50 plan. Well, is he, my Lords? Why does not the noble and learned Lord tell us and make our day?

The noble and learned Lord has either come out on the wrong side of an internal row in government, or he and Mr Straw have been mugged by the parliamentary Labour Party. Which is it? The whole House is agog to learn why what he swore blind so recently was right he today tells us is not. Can he promise the House that he will not be recommending preferential voting again on Wednesday?

When I had the temerity to suggest that not everything in his plans for the House was right and that we should take some time to think things through, the noble and learned Lord did more ho-hoing than a Santa Claus in a shopping centre in December. “Everything’s worked out”, he said. “It’s time to press on. We’ve looked at everything”. What a pity for him that he did not see the garden rake he was about to tread on over the recess. We should now take that opportunity to reflect carefully on the other details of his predictably poorly received 50:50 plan. I expect that before this process is over he will have changed his mind once again; but, like him, I look forward to the debates that we will be having in a few weeks’ time.

My Lords, it is fair to say that two weeks ago the noble and learned Lord the Lord Chancellor and I had some fun at the expense of the Leader of the Conservative Party, when I compared him to Blackadder in the First World War. When I tried to sum up my own feelings on the performance of the Lord Chancellor, I have to say that the Charge of the Light Brigade came most immediately to mind. I feel a little like one of the cavalrymen sent into the valley. I was so impressed with that image that I looked up an assessment of the Charge of the Light Brigade. Under the heading “What went wrong?”, it said:

“In a nutshell, a commander failing to take account of the fact that he was on a hill and could see what was going on and his troops could not!”.

Although I am willing again to join any charge that Lord Cardigan and Lord Lucan—or is it the noble and learned Lord the Lord Chancellor and Mr Straw?—call for, I get the impression that they are conducting a battle at the bottom of a hill where two maps join. I hope that the noble and learned Lord realises that, whenever you make a Statement such as that, you should look at who is smiling to find out whether one side or the other has won. I am afraid that the forces of reaction will take the most pleasure from this retreat.

It is important that we get a clear and settled view from the House of Commons. Can the noble and learned Lord confirm that the House of Commons will have a debate and make its decision before this House does so? That will inform the debate here. I support what he said about having the same voting system. It is essential that the same system is used at both ends. Therefore, although I regret the retreat from the alternative voting procedure, I support the fact that we shall have exactly the same system.

Finally, can the noble and learned Lord confirm that the Government are still committed to carrying forward reform of this House? As he said, all three parties were committed to that at the last general election. Will he also make every effort to ensure that reform is carried through with some sense of the dignity of this House, rather than the kind of shambles that he has had to report to the House today?

My Lords, it is a great honour to be described as Santa Claus by the noble Lord, Lord Strathclyde. It is hard to imagine anyone who looks more like Santa Claus than the noble Lord, Lord Strathclyde, particularly when you see him at the Prorogation ceremony. My wife and children will be delighted that I was described as a member of the Light Brigade. I have not been described as that for some time.

We have eaten humble pie in relation to this matter—but not much humble pie in my case, being a member of the Light Brigade. We searched for consensus in the House of Commons and found it rather more quickly than we thought we would—namely, no to the AV procedure—and we responded to it straightaway. I do not think that any further explanation is required: as is obvious, we are a listening Government.

We are very keen that Lords reform be properly debated. I thoroughly agree with what my right honourable friend the Leader of the other place says: let us focus on the substantive issue, not the process. We are committed to allowing a free vote to take place. In relation to the question raised by the noble Lord, Lord McNally, the debate in the Commons will take place before the debate in the Lords. As the noble Lord, Lord Strathclyde, said on the previous occasion, everyone will have an opportunity to discuss it. Let us discuss the merits of the issue rather than the detail around it.

My Lords, does the noble and learned Lord not agree that the Charge of the Light Brigade analogy was a little unfair? In this case, it was not the general who was on the hill and could see and not the troops; it was the troops who were on the hill and could see and it was the general who could not see until the troops pointed it out.

Mental Health Bill [HL]

Consideration of amendments on Report resumed.

Clause 2 [Learning disability]:

2: Clause 2 , page 2, leave out lines 13 and 14

The noble Lord said: My Lords, before speaking to Amendment No. 2, on which I shall detain your Lordships for a very short time, I should like to express my thanks to all those who sent their good wishes for my speedy recovery—it is six weeks since I was able to attend your Lordships’ House—and particularly to those who so ably took my place on the amendments in Committee, which I hope brought forth government amendments that will be acceptable as we go through Report.

I pay tribute also to the two Ministers concerned—the noble Lord, Lord Hunt of Kings Heath, and the noble Baroness, Lady Ashton of Upholland—who have extended the greatest possible courtesy by telephoning me and keeping me in communication with exactly what was happening in the House of Lords. I am extremely grateful to them. I say as a dispassionate outsider for the past six weeks, reading the goings-on in your Lordships' House, that I can only hope that, later this week, the other place votes for the right selection when it comes to the reform of your Lordships’ House. The quality of the debates and of the amendments put forward has been extraordinary.

Amendment No. 2 would delete the words,

“unless that disability is associated with abnormally aggressive or seriously irresponsible conduct on his part”.

I believe that those words unfairly pick on people who may well not have a mental disorder but who may well be frustrated for other reasons. I have previously put this case to the Minister, and I know that the president of the Royal College of Psychiatrists, Professor Sheila Hollins, has put exactly the same case. Unfortunately, the Government seem unable to accept my amendment. There seems little point in my pressing it to a Division because I know perfectly well that, even if I were to win, it would be overturned in the other place.

I can therefore only hope that the Government will offer me a lifeline in the code of practice. Having listened to the Government’s response on the first amendment, I hope that the code of practice will be strengthened by the attachment of principles to the Bill. The codes of practice therefore become very important. They currently do not apply to this caveat in the Bill. I can only hope that the Minister will give me an assurance that something will be done about this in the near future. I beg to move.

My Lords, I am delighted to see the noble Lord, Lord Rix, in his place once more. We missed him. I am also pleased and privileged to have an opportunity to pay tribute to him. He is an extraordinary man: from coal mine to Mencap, he has over so many years made a real difference to the lives of many people, especially those with learning disabilities. I know that I speak for the whole House when I say that I hope he will continue to campaign, legislate and bring about change for many years to come.

We fully acknowledge that many people who have a learning disability can have difficulties in communicating the nature of their health problems, and in particular that some of them may seek to draw attention to physical health problems by displaying aggressive or irresponsible behaviour that could be mistaken for mental disorders. Identifying physical health problems is an important issue for anyone with a mental disorder. For everyone who may be assessed for possible mental health problems, it is crucial to establish whether their behavioural presentation is in fact a reflection of underlying physical health problems. But we recognise, of course, that the risk of diagnostic overshadowing is especially high in the cases of people with learning disabilities.

That is why, since the noble Lord graciously withdrew his amendment following the debate in Committee last month, we have been looking seriously at the issues he raised to see what more we could do to address them. As he kindly acknowledged, we have engaged in active dialogue with him in the intervening period and made strenuous efforts to identify ways to address at least some of his concerns. We have considered a number of legislative options to see whether we could meet those concerns about inadvertent detention without inadvertently taking away the option of detention for those for whom it is necessary and appropriate. As ever, however, we ran up against the disadvantage of trying to use legislation to tackle a problem of practice rather than of law. We have had to conclude, therefore, that these issues would be best addressed in the code of practice—that lifeline referred to by the noble Lord.

It is vitally important to identify any underlying physical health problems in a person with a learning disability and to understand how it may be affecting their behaviour. Some may need to be helped only on their mental disorder. Other people with learning disabilities may need to be helped under the Act for their mental disorder while their underlying physical health problems are sorted out. I remind noble Lords that we are trying to frame legislation in such a way as to give mental health professionals the ability to do what needs to be done for the benefit of each mentally disordered person without imposing arbitrary restrictions. We consider that the learning disability qualification, as currently drafted in the Bill, allows clinicians this flexibility while still protecting patients’ rights.

Nevertheless, we acknowledge that there could be more practical guidance on the types of issues that can arise, such as proper diagnosis of an underlying physical disorder. Consequently, when we debated the amendment in Committee, we undertook to look at ways of strengthening the code of practice to take account of the concerns raised. I confirm to the noble Lord that we remain committed to that course of action. Indeed, we would be very happy if he and Mencap—the excellent charity of which he is the president—would be willing to take a proactive role in helping us to improve the revised code of practice for England as it relates to people with learning disabilities. And I do not mean just the section entitled “Learning Disabilities” but the whole code as it might be applied to people with learning disabilities.

Clinicians must have cogent reasons for any decision to treat an individual in a way that departs from the code of practice. It is more than mere guidance. I hope very much that the noble Lord, Lord Rix, will feel able to accept this invitation on both his own and Mencap’s behalf. In doing so, I hope that he will see fit to withdraw the amendment.

My Lords, what can I say after that? It is a most generous offer—one which I happily accept. I am overwhelmed by its scope. The fact that Mencap and I can be involved in the code of practice is a tremendous asset for us. I am extremely grateful to the Government for considering the amendment so sympathetically. I have the greatest pleasure in withdrawing my amendment, and hope that your Lordships will forgive me if I go home and put my feet up. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 [Changes to exclusions from operation of 1983 Act]:

3: Clause 3 , page 2, leave out lines 25 and 26 and insert—

““(3) For the purposes of subsection (2) above, a person shall not be considered to have a mental disorder as defined in this section solely on the grounds of—

(a) his substance misuse (including dependence upon, or use of, alcohol or drugs); (b) his sexual identity or orientation; (c) his commission, or likely commission, of illegal or disorderly acts; (d) his cultural, religious or political beliefs.””

The noble Earl said: My Lords, we return to an issue which we debated in Committee but did not resolve—the question of whether, in redefining what is meant by “mental disorder”, the Bill should draw clear boundaries around that definition by making clear what it does not encompass. We on these Benches regard this matter as particularly important.

When the Richardson committee reported in 1999, it recommended that a new Mental Health Act should contain a broad definition of “mental disorder” to replace the detailed diagnostic categories in the 1983 Act, and that this broad definition needed to be balanced by some exclusions. The Bill contains a new broad definition but no exclusions other than dependence on alcohol or drugs.

The broad definition has two consequences. The first is that it covers all the diagnoses listed in the WHO International Classification of Diseases 10— ICD-10—some of which are completely inappropriate for compulsory powers. Secondly, it potentially covers almost any significant deviation from a normal condition of the mind, however temporary that deviation may be. There is nothing in the Act or the Bill that confines the definition to the conditions listed in ICD-10. There needs to be some limit to guard against the inappropriate use of the clinician’s power of detention. Without such limits, the powers are capable of being used, even in a well-intentioned way, as a form of social control.

Any decision by a clinician to detain a patient against his will always and inevitably rests on the clinician’s discretion. In practice this discretion is wide, and because of that it is not acceptable for the law to be expressed in such a way as to allow the clinician total freedom to interpret its meaning in any fashion he or she chooses. Clinicians themselves acknowledge this. They support the proposition that there should be clear limits on their powers.

From the clinician’s point of view, the exclusions need to be there so that the right questions can be asked. Let us imagine a doctor faced with someone who is distressed, disturbed and behaving in a strange way. What lies behind his behaviour? Is it misuse of alcohol or drugs? Does the person have odd or eccentric beliefs that cause him to behave in a strange manner? Does he have an uncontrolled temper? Would his behaviour be seen as normal, or at least as comprehensible, in a different culture? It is only by asking questions of this sort that doctors can avoid arriving at wrong conclusions. If the questions are not asked, the danger is that all sorts of people who are not mentally disordered in the true sense will be swept up by the use of the powers in the Mental Health Act.

The noble Baroness, Lady Murphy, spoke powerfully in Committee about people who are social misfits: people on drugs, religious fanatics, or people with odd sexual urges. They are difficult to help, but any well intentioned clinician naturally wants to help such people. The law should make the position clear. It is not enough for a person to be odd, eccentric or a social misfit; the only legal grounds for compulsory detention are an underlying mental health diagnosis. When confronted by an oddball patient, the clinician has a duty to make sure that his decision to detain is not based on spurious reasons.

In Committee, the Government argued that exclusions in the Act would create uncertainty and that they would be arbitrary. I do not agree, and nor does the Royal College of Psychiatrists, the British Psychological Society, the British Association of Social Workers and the Royal College of Nursing, to name but a few members of the Mental Health Alliance. Exclusions serve a significant purpose, one that other legal jurisdictions in the English-speaking world have acknowledged. The equivalent mental health laws in Ireland, Scotland, New South Wales, Victoria and New Zealand contain exclusions on a basis similar to that set out in this amendment.

To be specific about it, I do not think that it is acceptable or right for the law to allow someone who is drunk or high on drugs to be compulsorily detained for that reason alone. But if the Government have their way, he could be—misuse of drugs or alcohol is classified as a mental disorder under ICD-10. A single episode of misuse could fall within that. Given that the Bill excludes from “mental disorder” the more serious forms of alcohol and drug misuse, it is difficult to see what argument the Government have for excluding the less serious forms. The draft code of practice explicitly mentions acute intoxication as a possible ground for the use of powers under the Act. Absolutely no justification is offered for that.

Equally, the proposition that someone who exhibits gender dysphoria, transsexualism or a sexual fetish should be eligible for compulsory detention is completely unacceptable. Yet these conditions are classified as mental disorders under ICD-10. I and many others would argue that they are not true mental disorders. Nor is behaving in a manner that is considered socially unacceptable or expressing a way-out political opinion. This country is not Soviet Russia and is in no danger of being like Soviet Russia. But the effect of not having exclusions along the lines set out in paragraphs (c) and (d) of the amendment is that it will further confuse in the public mind the role of psychiatry and mental health services.

My Lords, will the noble Earl clarify how paragraph (c) of the amendment would work in the case of a compulsive disorder where the nature of the compulsion is likely to result in a criminal or disorder offence?

My Lords, the key test is whether there is an underlying mental disorder. That may exhibit itself in any of the behaviours listed in the amendment. The question which the clinician has to ask himself or herself is whether there is an underlying mental disorder. They should not allow the issue to be clouded by extraneous behaviour that has nothing to do with the mental disorder.

As I was saying, the effect of not having exclusions along the lines set out in paragraphs (c) and (d) of the amendment is that it will confuse the role of psychiatry in the public mind; moving them, as far as perceptions go, from the proper aim of assessment and treatment of mental disorder into the area of social control. We have often spoken about the fears and apprehensions of the black and ethnic minority communities. Disproportionately high numbers of people from BME backgrounds are diagnosed with major mental illness and detained. To the extent that the Bill may serve to add to the current negative view of mental health services among those communities, it will have failed. That point was very powerfully made by the noble Lord, Lord Adebowale, earlier.

There is a real worry that stereotyping and misunderstanding of black people may lead to unnecessary and unjustified use of compulsion. That worry is not imaginary; it is based on current practice under the 1983 Act. Extensive literature confirms that racism can apply in mental health practice. It is even more likely to happen under the broader definition of “mental disorder”. Psychiatrists acknowledge how difficult it is to distinguish symptoms of genuine mental disorder such as hallucinations from beliefs that to a particular individual may be culturally or religiously appropriate, such as belief in spirits or in witchcraft. Without an exclusion of the kind I have proposed, we will see an increase in the degree to which diagnosis of mental disorder depends on discriminatory assumptions and on the subjective judgment of clinicians.

That is the rationale for the amendment. I believe that the arguments which the Government have put forward for resisting it are wrong. I therefore ask the House to give it full support. I beg to move.

My Lords, briefly, I support the noble Earl, Lord Howe, on the amendment. I do not want to repeat what I said in Committee, but many of our discussions throughout the passage of the Bill have been intended to ensure that people who are really in need of care and treatment have it made available to them. All of us have that concern, but we have approached it in different ways. In refusing the exclusions, the Government are misguidedly trying to draw into mental health services a much broader range of people who at present would be excluded and whom, mostly, we would want to be excluded.

I remember the wonderful tease of the noble Lord, Lord Alderdice, over the auto-erotic strangulation case, which somewhat confused the noble Baroness, Lady Royall, at the time. That was a wonderful example of how very many sexual perversions and fetishisms there are. We know that there are eccentricities that we do not want included in treatment where there is no defined mental disorder. I take the point made by the noble Lord, Lord Soley, that where there is a mental disorder exhibited through an obsessional behaviour that is criminal or distressing, that ought to be included, but it is perfectly possible to make that distinction.

Most common-law jurisdictions across the developed world have such exclusions, for very good reason. We have forgotten how very recently it is that people complained that too many people were drawn into mental health legislation through an overbroad interpretation of the Act. That is why we have the exclusions: to define exactly whom we are trying to detain in this way to help them. I strongly support the amendment.

My Lords, the House will no doubt be very familiar with the writings of a 6th century monk, a Syrian named Dionysius the pseudo-Areopagite. He made his place in church history by developing what was known as the apophatic tradition. In case one or two of your Lordships are not entirely familiar with that, let me explain it very briefly. The apophatic tradition says that as well as saying positive things about the nature of God, it is not only possible but desirable to use the negative. As well as saying, “God is love, God is light”, one must also say: “Because God cannot be seen, He is invisible; because He cannot be touched, He is intangible; because He cannot be fully understood, He is incomprehensible”. I suggest that the apophatic tradition is worthy of consideration in relation to the Bill.

The noble Earl, Lord Howe, has already made the point that the purpose of the amendment is to make clear what is not included as well as what is included in the Bill. I am strongly in favour of the amendment because its purpose is to reinstate and extend the exclusions. The point of exclusions has always been to ensure that compulsory powers are used to assess and to treat genuine mental disorder and not, in the words of the Church of England’s submission to the Joint Scrutiny Committee, as a means of social control.

The Government’s twofold argument—first, that most of the exclusions are unnecessary and, secondly, that they might prevent people being brought under compulsion when that is appropriate—seems rather curious. If the conditions and behaviour specified in the exclusions do not constitute mental disorder, they could not prevent legitimate application of the criterion for compulsion, but they could provide protection against inappropriate compulsion.

In view of the widespread concern about the detention of Afro-Caribbean men—I beg your Lordships’ pardon, African-Caribbean men—it is particularly important that exclusion (d), the criterion for cultural, religious and political beliefs, should apply. If the exclusions really are unnecessary, no harm will be done by adding them to the Bill. However, there are many reasons for thinking that, as a checklist, they will act as a significant safeguard of civil liberties in a climate of anxiety about risk.

My Lords, I am sure that the Minister’s brief includes the apophatic tradition, and that she will no doubt tell us about it. Mine did not, but then I have the noble Baroness, Lady Neuberger, beside me, who tells me that the right reverend Prelate is absolutely right.

I shall briefly make three points that are not only important for our discussions but to be read perhaps at another time and in a different place. In response to a similar amendment in Committee, the Minister stated the Government’s belief that exclusions are,

“arbitrary obstacles to the use of compulsion”.—[Official Report, 8/1/07; col. 83.]

He also said that they would cause uncertainty. Many noble Lords will have been in meetings in which Professor Appleby, the Government’s mental health adviser, has spoken about the need to make this legislation inclusive. Memorably, in an all-party group meeting on 30 January, he said:

“Every exclusion is a person not receiving the treatment they need”.

It is beyond doubt that statements such as that are made with good intentions, but it is equally true that those of us who disagree do so with good intentions. We on these Benches do not believe that we should set up exclusions to deny people treatment; we believe that every exclusion is someone not being wrongly subjected to mental health treatment. There may be people who are very seriously disturbed and whose behaviour is dangerous, but the central question that must be asked, and answered by practitioners, is whether that behaviour is to be treated using mental health legislation. As the noble Earl, Lord Howe, said, we should not leave that decision solely to the discretion of individual practitioners.

The noble Baroness, Lady Murphy, alluded to another important reason for accepting the amendment when she talked about other jurisdictions. I shall focus on New Zealand, in which the definition of mental illness is,

“an abnormal state of mind shown by delusions or disorders of mood, perception, volition or cognition”.

The exclusions are,

“a person’s political, religious, or cultural beliefs, or sexual preferences, or criminal or delinquent behaviour, or substance abuse, or intellectual disability”.

That is important because, frequently in the past few months, the Government have cited the example of New Zealand in their attempt to win support for their version of community treatment orders. In New Zealand, however, one must have gone through those exclusions and cleared those hurdles to be brought under mental health legislation at all. The Government, or their advisers, have therefore been presenting two things as the same. They are, however, radically different because they happen in a completely different context. That is why the amendment is of huge importance. We are talking about health and compulsory health treatment. We should confine it to the many, many thousands of people who we know need it and who cannot get it; we should not be including people whose problems are nothing to do with mental health.

My Lords, we can fairly claim that this issue is a question of principle, and a substantial one at that. It is and has been for many years necessary to make a clear distinction between the roles of medicine, particularly for psychiatrists, and criminal justice. Few would deny that psychiatrists have to deal with problems closely related to criminality and therefore to criminal justice, but they are inexorably being drawn across a threshold which I think it is extremely important to establish. In the background to this legislation, what people outside this House have used as a justification for it gives reasonable cause for concern. There seems to be a feeling that some of the acute social problems facing society can be handled by psychiatrists and compulsory orders. That is a very dangerous path for this House to allow any Government to move along.

The wording of the amendment is modest. It makes it clear that,

“a person shall not be considered to have a mental disorder as defined in this section solely on the grounds of”.

It does not exclude people who are alcoholics or taking drugs; it does not exclude people of different sexual identity or orientation; it does not exclude illegal or disorderly acts, and it does not exclude those with different cultural, religious or political beliefs, whether they believe in voodoo or anything else. All these are real problems, but we must have a very clear line drawn in the sand: doctors ought to be able to state that these are not medical disorders.

This amendment has to be linked with the next one which provides that doctors must have reasonable grounds for thinking that they can alleviate the disorder. The word “likely” is probably used correctly, but I do not want to stray into that amendment. However, taken together these two amendments establish an important principle and safeguard the medical profession from being drawn across a line into the field of criminal justice—that of policemen, probation officers and all those involved in the maintenance of criminal justice. Of the need for psychiatrists and the medical profession to help people in the implementation of criminal justice I have no doubt, but they should not be dragged across this line. For me it is a line worth upholding as a matter of principle.

My Lords, I too support this amendment. As noble Lords know, I am a practitioner in the criminal courts and a great deal of my work takes place at the interface between law and psychiatry, so I am conscious of what has happened in other common-law jurisdictions and have made a point of following closely the ways in which those jurisdictions have dealt with the problems the Government are seeking to address in this legislation. One of the tests of whether we are complying with the rule of law is that there should be clarity. Because of this, jurisdictions such as New Zealand have decided that it is far better to set out the exclusions in legislation. New Zealand felt that this was important because nothing focuses the minds of professionals more than the fact that the law is there. That is its purpose. As others have said, it would draw a line in the sand and focus minds, thus making sure that we do not transgress in any way and so create a situation where those who should not be included in this legislation are inappropriately brought under it. We would not run the risk of using a compulsory mental health section in circumstances where it should not be used.

It is for this reason that so many of the professionals involved are rising to their feet. All I can say to the Government is that while we are mindful of their good intentions, given that so much has been said about the expertise present in this House, and how it has been lauded on that expertise, they should listen to it.

My Lords, I want to reiterate my support for the amendment and follow up on some comments I made in Committee. I wish to speak briefly about some of the specifics, first in relation to substance misuse. Here I should declare again an interest as chief executive of Turning Point, which provides services to more than 70,000 people with substance misuse challenges.

Unlike the Bill, this amendment specifies substance misuse as well as dependency. That is important because both the misuse of and dependence on substances are included in international classification systems used by psychiatrists such as ICD-10, mentioned by the noble Earl, Lord Howe. Unless the legislation excludes both misuse and dependency, it could mean that people come under mental health law inappropriately.

Let me give an example, as I am prone to do, from Turning Point’s case files. John is one of Turning Point’s alcohol service users. He is a binge drinker but is not dependent on alcohol. He does not have a concurrent mental health problem, but he reacts to times of personal and emotional crisis by drinking. He will drink heavily for several days and nights before crashing. He then will not drink alcohol for several months. John’s irrational behaviour could mean that he is inappropriately sectioned under mental health law unless exclusions in the Bill also cover substance misuse.

Having explained the need for exclusions solely on the basis of misuse or dependence on alcohol or drugs, I stress that if a person has a dual diagnosis of a mental disorder and a problem with misuse or dependence on alcohol or drugs, they should not be excluded from treatment under the Act. As I highlighted in Committee, Turning Point’s experience is that people with a so-called dual diagnosis have been turned away from mental health services in the past, due to the current exclusions in the Bill, so it will be vital for any code of practice to address the issue and address it properly.

Secondly, with regard to,

“cultural, religious or political beliefs”,

while I do not think it is the Government’s intention to use psychiatry as some kind of social control, these things have a horrible habit of happening by accident and by fashion. I need not repeat the substantial and undisputed evidence about high rates of detention among people of African and Caribbean origin in comparison with those who are white British—we have discussed that enough today. However, I repeat my firm belief that in the light of these statistics, it is imperative for the Government to take proactive steps to address this imbalance. The amendment is an important way of doing so. I would dearly like to believe that racial and other stereotypes do not influence diagnosis, but the reality for many of the young black men I have spoken to—and it usually is young black men—is very different. I urge the Government to accept the amendment.

My Lords, I would like to speak about diagnosis, adverted to by my noble friend Lady Barker and the noble Lord, Lord Owen. It is important to be clear what you are dealing with medically, whether we are talking about physical or psychological medicine. That is not at all easy at times.

One of the problems about this amending Bill is that it removes some of the rather crude and simplistic but necessarily fundamental diagnostic entities. It sets to one side mental illness, psychopathic disorder and mental impairment, referring to the global term, “mental disorder”. The difficulty is that it removes the clarity that existed before, so it is necessary to insert some exclusions in the Bill. Let me give two particulars which may be helpful.

The tendency is to make the judgment that someone has a personality disorder because of the way they behave. It becomes a circular argument: if somebody behaves in such a way that they are anti-social, if they break the law and have difficulties with relationships, the term “personality disorder” is frequently applied. There is no depth psychology to it; it is simply a matter of observing their behaviour, and unfortunately the Bill helps to push us in that direction. The circular argument goes like this: the person breaks the law, therefore they have a personality disorder; they have a personality disorder because we know that they break the law; therefore, they are the province of psychiatry and it is appropriate to detain them because they might well break the law again. Psychiatry and mental health legislation are drawn into a circular argument. There is no depth psychology to it; the diagnosis is made on the basis of behaviour that is a breach of the law.

A similar problem arises with psychosis, particularly schizophrenic psychoses of various kinds. If a person behaves strangely and speaks about strange ideas and thoughts, they may suffer from a psychosis, but they may have a set of beliefs and a way of behaving that is simply alien, for cultural, religious or, occasionally, political reasons, to the psychiatrist or the other person that they are dealing with. The individual’s experience might get misconstrued as that of someone suffering from a mental illness rather than someone with different cultural and religious experiences. Generally, those groups are affected.

Again, if there is no depth appreciation, if a judgment is made simply on the basis of behaviour, symptoms and effects, which are terms in the Bill, people will be drawn in; inevitably, it will be, more largely, people from immigrant, black and minority-ethnic communities. If we are not going to have circular diagnosis for personality disorders or discriminatory diagnosis on the psychosis side, we must return to the Bill some kind of boundaries, exclusions or guidance, which have been removed. I understand why that has been done, because what was removed was relatively simplistic and, one might say, even a bit primitive and crude. Something needs to be put in its place to protect us, to protect patients and to give guidance to those who are working in this field.

My Lords, I, too, support the noble Earl, Lord Howe, in this amendment. This category includes another group of people who are labelled as having a personality disorder but are physically ill. They are people with ME. Over and over again, I hear about people with ME being described as having “illness beliefs” or as suffering from psychosocial behavioural problems, when they have from a physician a diagnosis of ME but psychiatrists disagree with the diagnosis. Psychiatrists say that ME does not exist, and somehow social workers and psychiatrists gang up together and get the person sectioned. More often than not, they come out of hospital much more ill than when they went in.

What is particularly iniquitous—the Minister knows what I am talking about—is how children are treated in this respect. We really need to protect those people. The fact that they think differently from other people does not necessarily mean that they are mentally ill.

The other group of people affected includes the lady, whom I mentioned in Committee, locked up in Pond Ward in the Central Middlesex Hospital because her beliefs about her children’s illness differed from that of the social workers looking after the children. There was absolutely nothing wrong with that lady; she should never have been locked up.

My Lords, my noble friend Lady Kennedy put her finger on the key issue: whether it is better to put something like this in the Bill or to rely on professional standards, codes of conduct and the underlying general law of the country. I tend to prefer the latter, although I acknowledge my noble friend Lady Kennedy’s point that other countries, for example New Zealand, put it in legislation without any great disadvantage. I understand the argument in both directions, and I would not lose an enormous amount of sleep if it were in the Bill, but there are some warnings about that, and they perhaps need to be spelt out.

Admitting someone to a psychiatric hospital on the basis of, for example, their religious or political beliefs would be unlawful anyway, unless you could show an accompanying mental illness. The intervention of the right reverend Prelate was appropriate, because some people go around these days claiming to be the son of God and to have other such relationships with God. If we had applied the same principle 2,000 years ago, history, and one or two other books, might have been written slightly differently, so we always have to be aware of it. It would be difficult to compulsorily treat on the basis of politics, culture or religion in the way that is feared without breaking the law, unless you could show a clear mental illness.

I intervened in the speech of the noble Earl, Lord Howe, because I am concerned about people with compulsive disorders who would fall under subsection (3)(c) of his amendment. The noble Earl and others may remember the case of the Jewish woman who had survived the Nazi death camps. This was a very long time ago, I have to concede—it was when I was still a probation officer—but it got a certain amount of publicity at the time, not surprisingly. Like a number of people who came out of that experience, she felt an inner guilt. She had attempted to resolve it in many ways, including psychotherapy and so on, but in her later life it seemed to totally overtake her and she began to shoplift compulsively—you could not describe it otherwise—and appeared in Hampstead court almost daily. The court leant over backwards not to send people to prison but, after many offences had been committed and every type of voluntary approach had been tried, it sent her to prison. If we box ourselves in too much with these regulations we will at times make it inevitable that prisons—as they did then and as they do now—take too many people who are in need of mental health treatment rather than custodial sentences.

Another example involves alcohol addiction. I give it against the slight warning that I was chairman of the Alcohol Education Centre in the 1970s, which was based at the Maudsley Hospital, and what I say arises out of the work of some psychiatrists there. The argument used to me as chairman of that organisation was that alcoholism should be treated as a mental illness, which was quite a powerful argument at the time. I had my doubts about it but they persuaded me—this is where it goes full circle—largely on the basis that the evidence was growing that acute addiction, whether to alcohol or drugs or cigarettes for that matter, could be linked to activity in the brain which could ultimately be treated. It is an interesting concept. I have gone back to the position that I held originally, before the psychiatrists got to me, that you still have to rely on the person wanting to take the treatment, which is an important aspect.

Again, there is a shady area in between. In one of my earlier speeches at Committee stage I talked about the old mental health hospitals, referred to as “bins” at the time. Although it was totally inappropriate to hold so many people there as we did, we were holding people who would now end up in prison—and, as we have heard, are held there inappropriately—or who are adrift in the streets and need a safe place.

The Grass Arena, written by another ex-client of mine, John Healy, refers to the problems he had when he was in between prison and treatment centres, a very difficult period. On one occasion he was about to be discharged from a prison sentence at Pentonville on Christmas eve, having been already sentenced to three months for a drunk and disorderly offence. The Ley Clinic, in Oxford, was unable to take him before that and was not prepared to section him even though he at that stage was asking to be sectioned. We did not section him; we got the court to impose another prison sentence for an unpaid fine, which kept him in until the new year.

That is not the best way of dealing with these problems. Ultimately, I rely more on professional judgments from all the professions involved—not only psychiatry, I stress. Part of the battle that troubles me is that there are too many psychiatrists speaking for psychiatry and not enough people speaking for the other professions involved. This is a grey area that will always be difficult, and opinion is moving on whether alcoholism is a treatable mental illness.

I could live with at least three of the conditions in the amendment but I have to say to the noble Earl, Lord Howe, that there is a danger that people will engage in certain types of compulsive behaviour—shoplifting, for example—which, by definition, will inevitably be taken into account by professionals, and in my view should be, if it is going to result in them going to prison. That is an assessment you have to make. That is why I find it difficult to make an absolute judgment of the type being assumed by this amendment. We must not make the mistake of assuming that including lots of special principles and conditions in the Bill will necessarily solve the problem for people who need treatment. It often pushes them on to the street or into prison. We have swung from the position of the 1940s and 1950s, when we had far too many people in psychiatric hospitals, to having a large section of people who need to be cared for, perhaps not in permanent care.

One of the reasons that John Healy wrote The Grass Arena was to explain his feelings and circumstances. One of his problems was going into hostels. As the noble Lord, Lord Adebowale, knows, it is difficult to find a hostel for someone who has a reputation for smashing up hostel staff and hostels, where there is a relatively more flexible regime. Frankly, we are not offering that person any real help and prison is not the answer either. Let us try to be flexible. Yes, the law must be absolutely clear to avoid the extremes of treating people because they have some strong religious or political belief or whatever, although I think that would be illegal anyway, but we must be very careful. My noble friend Lady Kennedy may be right: we could treat people in the way that the New Zealanders do—possibly things work well there. However, there is another side to the argument. It is worth remembering some of these cases particularly where issues such as compulsion are involved. You need to think carefully before including items such as paragraph (c) in this amendment.

My Lords, this has been an important debate on a key part of the Bill—indeed, an issue of principle. This amendment is the same as the one we discussed in Committee, and in many ways the arguments have been well rehearsed, although I have learnt an enormous amount including about the apophatic tradition, about which I will read more. I must say from the outset that it is absolutely not our intention to detain anyone except on the basis of their mental disorder. We will do everything possible to ensure that no individual is subjected to mental health treatment unless they have a mental disorder.

Much has been made in this debate and elsewhere of the idea that the Bill will widen—some have said it will be much wider—the definition of mental disorder. The Joint Committee on Human Rights referred in its recent report on the Bill to the,

“breadth of the new definition of mental disorder”,

and an argument was put forward that the widening of the definition must be matched by more exclusions. The Government do not agree with that, but before turning to the amendment itself I would like, if the House will allow me, to set out exactly what effect the Bill would have on the definition of mental disorder. In doing so, I hope to demonstrate that the effect is not as great as is sometimes thought.

Clause 1 simplifies, but does not change, the basic definition of mental disorder used in the Act. In fact, the only real change to the scope of mental disorder in the Act generally flows from the removal of the exclusion for sexual deviancy. In other words, for the purposes of detention for assessment under Section 2 of the Act, and various other powers, that is the only change. I will return in due course to the merits of that change.

A further effect of Clause 1 is that other provisions of the Act, largely those relating to detention for medical treatment, guardianship and, in future, supervised community treatment, will not be limited to the current categories of mental illness, mental impairment, severe mental impairment and psychopathic disorder. These are legal, not clinical, categories and the boundaries of “mental illness” are uncertain. That means that we cannot say precisely what will be covered by the relevant provisions that is not covered now. Almost certainly, mental disturbance arising from brain injury in adulthood will now be covered for the first time; likewise, personality disorders that do not fall within the definition of “psychopathic disorder”. That might, for example, cover someone suffering—and I do mean suffering—from a borderline personality disorder, with all the relationship difficulties, feelings of emptiness and propensity to self-harm that go with it. Possibly, too, the effect will be to widen the scope of the relevant provisions to include certain autistic spectrum disorders; certainly, it will remove any uncertainty about their status. These are not insignificant changes, but they do not amount to the significant widening of the definition of mental disorder that people sometimes ascribe to the Bill.

It has been argued that the Bill allows individual clinicians to decide what a mental disorder is. It does not. The reality is that psychiatry moves on. The European Court of Human Rights recognises that in its refusal to state definitively what constitutes “unsoundness of mind” for the purposes of the convention. Mental health legislation—perhaps inevitably, but certainly pragmatically—relies on the clinical professions taking the lead in defining and classifying mental disorder. But that is not to say that, Humpty Dumpty-like, mental disorder means whatever a clinician says it means. When we talk of clinically recognised mental disorders, we mean disorders recognised as such by clinicians at large. That does not necessarily mean exactly what is listed in the International Classification of Diseases or the American Diagnostic and Statistics Manual. Those publications do not purport to be the last word in what is a mental disorder, and they too get out of date, but they offer a good starting point for assessing what is likely to be regarded clinically as a mental disorder.

The noble Lord, Lord Owen, and the noble Baroness, Lady Kennedy, suggested that a clear line should be drawn for the medical profession. It is conceivable, I suppose, that some day a Government might attempt to put in the legislation a detailed statement of what is and is not a mental disorder. I doubt that it would be popular with the psychiatric world, but a Government might be compelled to do so if they concluded that the profession was taking an approach that was unsupportable in a democratic society. I do not think that we are anywhere near that position right now.

I should also say something else about the context within which the question of exclusions should be considered. There must, of course, be safeguards against improper use of the Act, but the definition of mental disorder is by no means the only place, or indeed the most obvious place, to look for such protections. There are already safeguards in the procedures for detention. No single professional can have someone detained. The criteria for detention impose further strict limitations. Then there are the many other external safeguards, both within the Act and beyond it. There is the Mental Health Review Tribunal, together with the Mental Health Act Commission, and the merged body which will take over its role in future. There are the clinical governance arrangements that all mental health service providers must have. There is professional regulation and, above all, as the noble Lord, Lord Soley, said in Committee, the rule of law.

Of course, those protections are not perfect, and not every professional attains the high standards of the majority. Mistakes get made, even by the most conscientious of professionals. We must all, collectively, work together to improve standards across the board; but I urge the House, in thinking about this amendment, not to forget that there is an intricate and extensive network of safeguards that goes far beyond what is achieved by refinements to the definition of mental disorder and exclusions from it.

The exclusions proposed in the amendment are of two types: those that would substantively limit the disorders in respect of which the powers in the Act could be used to help and protect people; and those which, in the words used by the noble Earl, Lord Howe, in Committee, are markers designed to send signals about how the Act should, and should not, be used. Substance misuse is, I think, in the former category. In my experience, the Government are often challenged to say why their proposals represent an improvement. In this case, I feel justified in asking the same question of the noble Lords in whose name this amendment stands. For the past quarter of a century, the Act has excluded dependence but no other substance-related disorder, yet psychiatric hospitals are not full of drunks sleeping it off or drug users being kept away from their dealers by nominal nursing care. Why should anyone think that that will change as a result of the Bill? Why do noble Lords want to exclude from the Act those people who are now properly detained because of a substance use related disorder? If they do not want to do that, why none the less are they willing to take the risk of it happening? As many noble Lords know far better than I—

My Lords, I had difficulty following the noble Baroness because the Bill itself contains an exclusion for substance dependence; therefore, the Government agree with me on that issue. I find it difficult to understand why the noble Baroness argued against that position.

My Lords I am not arguing against that position. I shall come back to that matter shortly, if I may.

As many noble Lords know far better than I, there is a spectrum to acute intoxication just as with many other mental disorders. No one is ever likely to be detained because they are mildly depressed; major depression is a different matter entirely. Of course, no one is going to be detained just for being drunk, but sometimes it makes good clinical sense to detain someone who is profoundly intoxicated and hallucinating or suffering other psychotic symptoms which put them or other people at risk. The symptoms may recede with the intoxication, which can sometimes take days, or it may turn out that they are symptoms of another disorder.

The noble Lord, Lord Adebowale, said that he had experience of people with dual diagnosis—that is, substance dependence and mental illness—being refused services because of current exclusions. He gave an example of where exclusions are being misunderstood or misused to exclude people from the help that they need.

On sexual identity and orientation, one significant change has been made to this amendment since we debated it in Committee; namely, the change from “sexual behaviours” to “sexual identity or orientation”. We continue to believe that an exclusion for sexual identity or sexual orientation in the way that they are normally regarded—that is, heterosexuality, homosexuality and bisexuality—is simply redundant. Noble Lords are familiar with the arguments on that, so I shall not repeat them.

The noble Countess, Lady Mar, referred to ME. That is an issue of diagnosis not definition. We cannot use legislation to tell clinicians how they are to diagnose patients; that is a matter of professional practice. If there are problems of poor practice, they must be tackled as such.

On criminal acts and cultural, religious and political beliefs, the remaining elements of the amendment are there to send signals that the Act is not to be used to exert social control, that criminal, antisocial or merely difficult behaviour is not, of itself, proof of mental disorder, and that diagnosis must be based on patients as they are, which includes their cultural, religious and political background, assumptions, values and beliefs. I simply cannot agree that people will be detained because of their cultural, religious or political beliefs.

Those are sentiments with which the Government wholeheartedly agree and that are clearly set out in the illustrative draft code of practice that we have issued. Indeed, the noble Lord, Lord Adebowale, suggested that the code of practice should be strengthened in this and other areas. We would certainly welcome his help in doing that. As my noble friend Lord Hunt of Kings Heath wrote in his letter of 31 January to all noble Lords, difference is not to be equated with disorder.

We still disagree on whether the way to send out and emphasise these messages is to amend the Act to purport to exclude these matters from the definition of mental disorder. The House is familiar with our arguments in this area and I will not repeat them in detail. However, we are more than ever confirmed in our view that otiose exclusions can achieve nothing except the risk that they will be misapplied or interpreted in an unintended way.

Perhaps if I were a certain type of patient detained in a high-security hospital following a conviction for a serious offence, I might be getting quite excited at the possibility that this House was seriously considering adding the exclusion for criminal acts. Of course, I would realise that it was not intended to lead to my discharge while I still needed treatment in hospital, but I would certainly be thinking about ways in which I, and my lawyer, could try to persuade a tribunal that that is none the less its legal effect. There may be few such patients, and one would hope they would not succeed. However, I do not think that we should take that risk.

It has also been argued that these exclusions would engender trust in the Act, but the Government do not think that they would. I understand the need to engender confidence, especially among the black and ethnic-minority community, but I do not see how people who do not trust professionals to make the right decisions will have their minds changed by these declaratory exclusions when the same people will have to apply them.

It has been argued that the Government should accept this amendment as a sign of good faith and, in particular, their commitment to eliminating discriminatory attitudes and practices within mental health services. I note the comments made by the right reverend Prelate the Bishop of Coventry and many other noble Lords. However, had the Government come forward with these exclusions and said, “Look, here is proof of our commitment”, I wonder how readily others would have been convinced. We will be, and we want to be, judged by the action we are taking, not least through our Delivering Race Equality programme, and not by whether we agree to include some well meant but otiose words in the Bill. The earlier debate on the elimination of discrimination in relation to principles is very important in this regard. I hope that that may be dealt with at Third Reading.

Many noble Lords have contrasted the Government’s approach with that taken in Scotland, Ireland, New Zealand and a number of other Commonwealth jurisdictions. It is not my place to comment on the wisdom of approaches taken by other legislatures, although I caution against the assumption that what works well in one legal system can automatically be transferred to another. Indeed, one does not need to look long at legislation from other countries to see the immense, almost bewildering, variety of ways in which legislatures have tried to define mental disorder or, as the case may be, the types of mental disorder to which they wish their particular legal framework to apply.

The approach we have taken is one of simplicity. This is not because we necessarily take a different view of the disorders that should potentially engage powers of compulsion, although on paraphilias we take a different view from that of the Scottish Parliament. It truly is more the case that we are wary of putting words in the Bill that are legally unnecessary, however much we agree with their underlying sentiment.

I have listened carefully to the important debate this afternoon. I have reread the debate that we had in Committee and have heard all the arguments put forward in the discussions which my noble friend Lord Hunt has had in the past three weeks. The Government have listened to all the arguments and fully agree that this legislation must not be used to wrongly subject any individual to mental health treatment. However, in relation to substance misuse, sexual identity and sexual orientation, we do not think that an exclusion is needed or that it is the right thing to do.

On the rest, while we agree with the objective, we do not agree with the proposed means of achieving it. We do not believe it will deliver the benefits sought by its proponents and fear that it will create a risk to the effective working of the Act, something which is best avoided. I would be grateful if the noble Earl, Lord Howe, would reconsider his amendment.

My Lords, I thank all noble Lords who have spoken in this debate. I have found every contribution extremely enlightening and valuable. I also listened with great care to the Minister and thank her for her reply. Very sadly, it is clear that this is one of those issues on which we are not going to agree.

I totally accept the Government’s honourable intentions in not wishing to subject to detention anyone who does not have a mental disorder. The issue is whether Parliament, in common with comparable legal jurisdictions, should delineate what should and should not fall within the scope of the law.

I listened carefully to the noble Baroness’s exposition of the safeguards in the Act and the Bill but still maintain that there is a clear value in the Act setting down clear markers about how Parliament wishes the very broad definition of mental disorder to be interpreted in the field. If the Government consider that some of the exclusions are legally otiose, I might in some cases be forced to agree with them. However, the fact is that, to the extent that they may be otiose, that does not seem to have caused problems in other jurisdictions in which similar provisions have been adopted. Indeed, the noble Baroness was gracious enough to say that, in some instances, she did not disagree with the sentiment behind those provisions.

To the noble Lord, Lord Soley, I simply say that I would not wish to deny people with obsessive compulsive disorders access to therapeutic care, if that is what they need. The issue is whether such people should be compelled into treatment, if there is no underlying mental health diagnosis. That is what troubles me about the possibility of confusing the boundaries between what a mental disorder is and is not.

I do not know how the balance of opinion in the House lies. All I can judge is that this afternoon’s speeches have been heavily weighted towards the amendment and I take encouragement from that. Therefore, I think that it is appropriate for me to test the opinion of the House.

Clause 5 [Replacement of “treatability” and “care” tests with appropriate treatment test]:

4: Clause 5, page 3, line 13, leave out from “is” to end of line 15 and insert “likely to alleviate or prevent a deterioration in his condition.”

The noble Lord said: My Lords, in this group we are also considering Amendments Nos. 6 and 7 and government Amendments Nos. 8, 11 and 12.

I start with a reference to the government amendments—I hope that it will be taken as a generous reference, not made grudgingly on this occasion. All of us who are involved with therapeutic benefit, on which I shall say more in a moment, are grateful that the Government have taken a great deal of time and trouble to consider the previous debates on this issue. I recognise that the Government have attempted to meet the serious concerns expressed in the past not just by those of us involved in the joint scrutiny committee’s deliberations but by many others around the House. Having said that, I regret that the amendments proposed by the Government do not seem to go anywhere near meeting the requirements which caused those concerns.

This group of amendments is about what has generally been called therapeutic benefit. There is a principle here and, in my view, it is an important and ethical principle. As a matter of medical and legal ethics and of professional ethics in the round, no professional person should be required to provide a service to someone whose requirements do not come within their professional ethical code of practice. Under the Bill as it stands, doctors and other clinicians—far from all clinicians are qualified medical practitioners—are being asked to provide medical treatment in circumstances in which such treatment is simply inappropriate. Therefore, I argue that clinicians are being asked to do something unethical. Putting it crudely, some clinicians may find themselves in the position of being asked to be, in reality, nothing more than turnkeys.

If it is the Government’s view that it is appropriate to introduce legislation which requires people to be locked away from society because they are perceived to be dangerous but could not benefit therapeutically, then I am sure that this House will consider any such proposed legislation on its merits. It may achieve a fair passage and it may not. At least it would be honest, ethical legislation in which the Government would set out their objective and we, the Members of this House—in, I hope, the multi-partisan way that has applied to many of the deliberations on this Bill—would then consider such legislation.

After all the arguments that we have heard in the many debates on this Bill and its predecessors, it remains my view that it is wrong for there to be compulsory detention in a hospital where there is no therapeutic benefit or its equivalent, whatever words one uses to describe that concept. The Government have put forward an amendment to require the purpose of any treatment under the Bill to be,

“to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or effects”.

There is an awful lot of the use of the word “or” in that sentence. I suggest that the Government have been parsing the language. But if one parses the language that they have offered, one is left, if at all, with a mere smidgeon of movement towards therapeutic benefit and no more.

The Government’s proposals stop short of requiring any likelihood of the person benefiting from that treatment. Surely if one is taking someone into a hospital for treatment, the normal clinical judgment is that there is a likelihood that there will be benefit from the treatment. It does not mean that the clinician is saying that there will be a benefit from the treatment but that a clinical judgment has been made that the detention in hospital is likely to provide some benefit.

We believe that the Government’s amendments, well intentioned though they are, still leave the possibility of a person being detained simply for preventive purposes without any medical benefit. We do not require people to be cured of their illness—we know that that is impossible in many acute cases where there is mental disorder—but we believe that there should not be the range of possibilities that the Government’s amendments offer. For example, if all that is required is an alleviation of one of the effects of the condition, that could mean that a person suffering from Tourette’s syndrome—a well known disorder sometimes manifested by the use of offensive language—could be detained in hospital simply in order to alleviate their use of offensive language in public places. Surely the Mental Health Act 1983 is not intended to deal with that kind of situation, but the very wide range of the words in the Government’s amendments means that that kind of situation could arise. It raises the possibility of clinicians being asked to incarcerate for very long periods people whom society does not like. I do not believe that that is an ethical approach to mental health law.

In my view, the amendments in this group that I and others propose provide a perfectly practicable alternative that would not compromise public safety one jot. We invite the Minister to agree that that is the case and to agree to reconsider his position in relation to the Government’s amendments. I should be only too happy to withdraw the amendment if I felt that there were a real possibility of the Government accepting that their approach has been just too tentative. I beg to move.

My Lords, with this group of amendments we have arrived at perhaps the single most critical issue in the whole Bill: the presence or absence of a test of therapeutic benefit. Since our very extensive debates in Committee, a number of us have had the advantage of private discussions with the Minister, for which I, for one, am grateful. We also now see before us some movement by the Government in the shape of their amendments grouped here, which seek to define in the Bill the purpose of medical treatment. Without repeating the powerful arguments put by the noble Lord, Lord Carlile, I want to add a few brief points of my own in support of Amendments Nos. 4, 6 and 7.

In Committee, I and others argued for the retention of the status quo in the 1983 Act—that is to say, the retention of the treatability test as currently defined. The Government resisted that proposition and argued instead for the appropriate treatment test contained in the Bill on the grounds that this was better suited to dealing with the perceived problem of certain people with personality disorders falling outside the scope of the law. I did not—and I do not—accept the Government’s premise that a serious problem exists. I do not believe that they have produced any evidence for it beyond anecdotal reports. However, the amendment to which I have added my name is designed to meet the Government half way. It accepts the test of appropriate treatment and accepts that it should be the availability of the treatment rather than anything more which matters for the purposes of the test. But it also redefines appropriate treatment in the language of the 1983 Act so that the test of likely therapeutic benefit is retained.

The advantage of that approach is twofold. It ensures that there is no possible argument by people with a personality disorder who, after being detained, refuse to engage with their treatment and as a result claim to be untreatable. It also retains in law a form of words that commands universal understanding and whose legal meaning is clearly defined in case law. The Reid case of 1999 established that health benefit could comprise in certain circumstances no more than containment within a therapeutic environment under supervision so long as there is likely to be some benefit to the patient.

So the current test is very broad. Personality disorders are not excluded because they can now be successfully treated. Let us be clear that the fact that there needs to be a likelihood of health benefit is no barrier to detention. The underlying disorder does not need to be addressed. If, as the Government propose, one does not have a test of likely therapeutic benefit, the consequence is obvious. The noble Lord, Lord Carlile, has spelt that out. The legislation suddenly acquires a broad reach because the concept of benefit to the patient is diluted almost to extinction, other than the very nebulous benefit of being confined in a therapeutic environment. It was that formulation which was heavily criticised by the joint scrutiny committee in 2004, and it has been criticised again only this week by the Joint Committee on Human Rights. The JCHR said:

“The appropriateness test in relation to treatment without consent must address the issues of medical necessity and the likelihood that the treatment will alleviate or prevent deterioration”.

That conclusion could not be more clear. In the committee’s view, not only does the test of likely therapeutic benefit have to apply, it also has to be on the face of the Act. The inference to be drawn is that without it, the Act could authorise detention, which in some cases would be profoundly unethical. Yet it is not difficult to see that the Government have rejected this test precisely because in their view it would exclude from compulsory detention a group of patients who are, in their words, “treatment resistant”. Exactly who that phrase refers to is not at all clear. I hope that the Minister will be able to tell us. I also hope that he can shed some light on the government amendments.

I was initially pleased and excited by the amendments, as I saw them as importing something quite significant. However, I am now in considerable doubt about that. While Amendment No. 12 defines medical treatment as,

“treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms”,

which sounds very much more in tune with the language of our own amendment, I am exceedingly worried by the last two words of the amendment—“or effects”. The effect of someone’s mental disorder may consist of alarm or affront on the part of the public because his behaviour has been violent and disruptive. Treatment that has the purpose of alleviating that effect—and no more than that—could consist of nothing more than locking the person up in a therapeutic surrounding away from the public view. Making the effect of someone’s condition into a trigger for compulsory detention creates a test that is wide open in its application. The wider and vaguer the test, the greater the risk of exactly the thing that none of us wants—deterring the people who most need help from seeking it. If the government amendments are accepted, we shall be right back to where we were before, with a Bill whose wording seems guaranteed to excite the suspicion among some that it is capable of being used as a means of social control.

I am truly sorry to have arrived at this conclusion as I had hoped for a meeting of minds. To reject the government amendments because of one word seems harsh, but I shall do so until such time as the Minister can dispel the fears that I now harbour. He may have a job on his hands to do that. Meanwhile, I am clear that in line with the recommendation of the JCHR, the right and ethical thing to do for the sake of both mental health patients and the public is to support the wording of Amendment No. 4.

My Lords, I shall have one more attempt, if I may, to try to persuade the House that the Government are more right than wrong, although as I said when I last spoke on this subject, they may not have gone far enough. We may need clearer legislation.

I understand fully the position of the noble Lord, Lord Carlile, and I respect it. He feels very strongly on the principle of the issue and has a very good track record both on civil rights and on understanding their context in society. I want simply to try to balance the arguments for and against. A perennial problem in mental health issues is that because we do not have as clear a definition as we would like, particularly on personality disorder, we move around trying to find the right position. Over time, the only thing about which we can be certain is that we have got it wrong some of the time and have sought to adjust it. On balance, of course, we tend to make some quite good decisions, too.

I agree with a comment in one of the letters that the Minister sent to Members of the Committee—that personality disorder is a definition of exclusion in too many cases. It excludes people from treatment. I therefore say straight away that the position of the noble Lord, Lord Carlile, and those who support his position is that the Bill as currently presented risks creating a situation in which people will be treated inappropriately. In a previous debate, the noble Lord, Lord Winston, gave an example of a case where inappropriate action was taken. It was a good example, and that does happen. Let me be clear: I am not saying that there is not a danger of that.

I ask the supporters of the amendment to take into account the other side of that equation—that many people with personality disorders who could be treated are at the moment not being treated. They are not being treated not only because no facilities are available; too often they are not being treated because the phrase “they are not treatable” is used. I am not citing only the examples that I gave when I last spoke on this issue. I do not call in evidence my previous experience as a probation officer 30-odd years ago, but I do cite the experience of many Members of Parliament who have to deal with difficult cases in which they receive letters from health authorities saying, “Sorry—we are not prepared to treat”. Yet everybody knows that a treatment is available for those people.

Those supporting the amendment are very strong on the patient’s right not to be treated and pretty strong on doctors’ rights not to treat people if they do not want to, but they are very weak on treating those who need treatment. They are playing into a situation that has troubled the mental health field for far too long, whereby a dustbin label is put on someone—the original label was psychopathy, but it is now personality disorder—saying that they cannot get better and are untreatable, so nothing is done about it. In reality, treatments are now available. As I said earlier, I am sometimes troubled that we pay too little attention in these debates to other treatments available from psychologists. Psychologists often, although not always, have a longer period of training than many psychiatrists. It is important to get the balance right. The noble Lord shakes his head. There are examples of psychiatrists having shorter training periods than psychologists. It is not a crucial argument because we know that there are no absolutes in any of this. We are dealing with behaviour.

As for the definitional problem, the fact is that mental illness exists. It can be shown in an individual standing alone in certain circumstances. Much mental illness, however, takes place in a social setting and comes to our attention only because of its impact on society. That cannot be ignored. As the Government and noble Lords have rightly said, you should not treat a person for a mental illness simply because of something that is happening in society unless it can also be shown that there is a problem for the person. But many cases of personality disorder, particularly when the impact is felt in the local community, are distressing for the individual, too. They might not express it by saying “I am distressed” when they are causing amazing problems for those around them or attacking people in the street or whatever. They may be very defensive about what they are doing and claim to be perfectly rational, but that happens also with other aspects of mental illness. Personality disorder is not the only situation where the person denies an illness or condition that could be treated, to put it more appropriately. I accept that there is a problem with calling personality disorder an illness, but I do not accept that there is a problem with saying that personality disorder can be treated. It might not be cured in the full sense of the term, although even that could be arguable, but the situation could certainly be alleviated.

When I last spoke on this I gave a couple of examples of the impact on the community, which we cannot ignore. The impact, particularly in stressed, inner-city areas, comes to the attention of Members of Parliament because the person’s behaviour becomes so extreme that others are frightened by it—and often rightly frightened; it is not imaginary. People may find the behaviour so disturbing that they try to remove themselves from the setting although they can see, and will often say, that the person concerned is “mad”. They use the term in the conventional way that society uses it. They express total amazement when they are shown a letter from the health authority saying that the person has an “untreatable personality disorder”. They see the impact of the personality disorder. If the individual lived on a desert island or in the middle of nowhere, the behaviour would probably not be noticed. But that does not mean that the individual is not a distressed person who requires treatment. The social and community aspect is important.

Debates in this place are good because they are so often fed by experts with expert knowledge. But one of the advantages that the House of Commons has over the House of Lords, not always having that expert knowledge and having other agendas as well, is that it picks up this sort of issue on the street. The other week I gave those examples because they are real cases causing real distress to people who are not being treated, as well as to the community. I say to those who support the amendment that my argument essentially is that the other side of the patient’s right to refuse treatment and the doctor’s right to refuse to get involved with difficult cases such as personality disorder is that those who are not being treated but could be treated, should be treated. There is an element of principle there.

Personality disorder has for far too long been used as a means of excluding people from treatment and ignoring the impact on the community. We then get horrific headlines in the tabloids about a person who has killed someone after being turned away from a hospital because they were labelled as untreatable. I have had plenty of battles with the press generally and with the tabloids in particular about how they present stories, including stories on mental health. When I presented my Bill in the House of Commons 10 or 15 years ago on the freedom and responsibilities of the press, we took evidence from, among others, those who represent mental health patients, because of the way in which those patients were presented in the press. But however bad those stories are, if we fall into the trap of saying “Oh, we must just ignore the press on this,” we also end up ignoring the important reality of the underlying story for those who are affected by it. We cannot afford to do that. That is the difference between being an MP and a Member of the House of Lords—as an MP you pick up these issues on the street. It is there; it is not imaginary.

Finally, I ask the Government to think hard about another issue. Shortly after I came to this place I proposed that the two Houses should consider a reform to enable the two Houses to conduct post-legislative scrutiny of Acts. We are now some way towards that. I have been arguing for some time that the Lords could play a premier role in that task, because noble Lords would be very good at looking how legislation is working. If, as I hope, that becomes possible in the not-too-distant future, I hope that my noble friend on the Front Bench will volunteer this Bill for post-legislative scrutiny.

I think that the Bill will work well on balance although there are one or two difficult areas where we may have to revisit it. I may be proved wrong and there will be cases where people are treated inappropriately, and that should trouble us; but perhaps those who take the opposite view will be proved wrong and the Bill will be shown as too weak in insisting that those who need treatment should get it. That is necessary not just for them but for the community, always on the understanding—the critical base point—that the treatment must be a hopeful concept for the individual who is in distress.

My Lords, I am extremely grateful for the intervention of the noble Lord, Lord Soley, because he appears to have made a case for the amendment. People with serious personality disorders can be treated and should have access to treatment and the wide range of facilities available to them. The whole point of the amendment is that everybody detained in hospital should have appropriate treatment made available to them, treating their symptoms and signs of disorder. That is, after all, the therapeutic object of admitting all patients to all hospitals.

We cannot succeed in instantly curing everybody—we all know that; it is the same in every branch of medicine—but we can certainly have a go. That is the therapeutic intention, and there is a determination that we should not move away from it. I say to the noble Lord, Lord Soley, that we do not want balance on this point. Having read through the Government’s amendment, I was initially cheered because I thought most issues had been addressed. In fact, the more you look at the wording, the more you realise that it was a rather mean-spirited response to the problem that we were trying to address. We must have absolute clarity on this, which is why we must support the amendment.

My Lords, Amendment No. 12 demonstrates how the Government are broadening the field in this legislation in respect of mental disorder and medical treatment. In regard to the problems with which the legislation is trying to deal, the field has been broadened beyond the effect on the person himself. Psychiatrists, psychologists and other healthcare professionals are being asked to address the problems of society, which were set out by the noble Lord, Lord Soley.

The legislation is not intended to deal with people who suffer from particular kinds of personality disorder, such as borderline personality disorder, to which the noble Baroness, Lady Royall of Blaisdon, referred—that term has come into psychiatry relatively recently; that is, in the past 25 to 30 years. It is not a question of whether treatment is available; treatment is available on the basis of whether resources are available, not on the basis of whether there is a Mental Health Act. The Act is there for the compulsion of patients.

The kind of personality disorder being adverted to is not where a person has a conflict inside himself, is deeply troubled and wants help; it is where a person does not have a conflict inside himself but has a conflict with society, does not seek treatment because he is not aware of any problem and therefore does not try to deal with it, but other people around him suffer from the effects. The criminal law is there to deal with him if he breaks the law and the contract each of us has as a citizen with the rest of the community. That is perfectly appropriate, but what is not appropriate is to provide in a Mental Health Act that the effects of a person’s actions on other people should be the reason for the treatment meted out to him. It would not be treatment through medication because the only medication that would be of any value would be to dope him to the point that he did not know what was going on but that would not have any therapeutic benefit.

The noble Earl, Lord Howe, is right that the key words in Amendment No. 12 are the last two: “or effects”. Effects on whom? The effects on the person himself or the effects on society? In other words, if the person’s behaviour does not trouble him, but troubles the rest of society, it should be dealt with not under the criminal law but under mental health legislation, and doctors, psychologists and nurses should cope with it. That is the problem. That is why Amendment No. 7 refers to preventing,

“a deterioration in his condition”.

The key question is whether we are asking psychiatrists, psychologists and nurses to deal with society’s problems or to deal with the problems that patients have inside themselves that cause them difficulties. That is their role. They have a role, but it is not primarily the role of healthcare professionals to be social policemen.

My Lords, I welcome almost all of the Government’s amendment, but I am concerned about the inclusion of the words “or effects”. They seem to leave the door wide open to achieving the objective of the original clause of the Bill; that is, to expect doctors to agree to the detention of people who do not have a treatable disorder or who have not committed any crime. Will the Minister assure the House that that is not his intention? If it is not, perhaps he will agree to a very minor adjustment to his amendment. One way forward would be the deletion of “or effects”, which would go a considerable way in the direction that we all wish to go, ensuring that doctors were left to treat people who have an illness and who are treatable. The other way forward would be to add “upon him” after “or effects”, making clear that if there are undesirable effects upon the individual, there may be some merit in treating him. Either adjustment to Amendment No. 12 would leave me not wishing to vote against the Government. However, in the absence of that, this amendment does not give me the assurance that I hoped it would.

My Lords, I am glad that the noble Lord, Lord Alderdice, mentioned resources because I wonder whether a regulatory impact assessment has been made of this proposal. There are not enough resources to cope with people who have been clinically assessed as needing treatment, and now we are proposing to put into an overstretched system people who have not been assessed and for whom distinguished clinicians feel that the tension of that kind of environment is not appropriate. I would be grateful if the Minister could say what the regulatory impact assessment was of practical resources to bring about what the Government’s amendments propose.

My Lords, the words “or effects” are critical. If they mean the effects on the individual patient, it is important to have them because there is more to mental illness than simply its symptoms; its effects on the individual are very important. However, if “or effects” means the effects on society, the provision is less convincing. I would like to see “or effects” in the Bill together with “on the individual patient”. If that is possible, it makes the Government’s amendment entirely acceptable.

My Lords, this has been a good debate. I was grateful to the noble Lord, Lord Carlile, for his kind words at the beginning, although, sadly, he did not stop there. I disagree with him about the Bill leading professionals towards unethical behaviour or being a code of practice for a turnkey situation. That is not the Government’s intention, nor is it the intention of the legislation. There have been constructive discussions between noble Lords on this matter. I recognise how important our understanding is of the meaning of “appropriate treatment”. I hoped that the amendment would commend itself to noble Lords. It is clear that there are issues, particularly the meaning of “or effects”, that need to be teased out. If noble Lords do not press this amendment to a vote, I intend to see whether there can be further discussions between now and Third Reading to clarify some of the uncertainties identified. I shall then speak to a number of the specific comments made.

We want to ensure that detention and the other powers in the Act are only ever used for proper healthcare purposes. The Bill is not, nor has it ever been, about detaining people without offering them treatment. We wish to remove the treatability test, as discussed in Committee, because we believe that it has led to a culture in which too many people, especially those with personality disorders, are labelled untreatable. It is almost as though the treatability test has perversely been taken as a signal that those people are assumed to be untreatable. I well understand that the treatability test is not the sole cause of this problem, as a complex web of factors has come into play, but I am satisfied from my discussions with many people in the profession that the test seems to have been an important part of the problem in dealing with and treating—albeit a small number—people who undoubtedly require support.

There are clearly misapprehensions about the Government’s intent in removing the treatability test and replacing it with the appropriate treatment test. One of the problems has been that many people approach the appropriate treatment test as though it were the only criterion to be met before a person could be detained. That is not the case. Before it even falls to be considered, a decision will have been taken that the patient has a mental disorder which makes it appropriate for them to receive medical treatment in hospital. If an application is being made under Section 3, not only must it be appropriate that the patient receives such treatment, it must also be necessary for their health or safety or the protection of others, and detention must be the only way of ensuring they get it.

Secondly, it has been suggested—and a number of noble Lords have said so tonight—that the purpose of the appropriate treatment test is to permit the detention of people with personality disorders who are dangerous but who have not committed any crime. Nothing could be further from the truth. We hope that abolishing the treatability test will help change attitudes that have limited the services available for people with personality disorders and excluded them from available services. I understand the issue that the noble Lord, Lord Alderdice, raised about available resources. I understand that there are a number of factors. This is not a simplistic approach, but we think that the treatability test has inhibited the health service from providing the right care and treatment to the group of people we are talking about. Nothing in the Bill, in case law or in the Government's policy equates detention with medical treatment. Detaining someone is not treatment; even detaining someone in hospital is not treatment.

It has been suggested that “appropriateness” is such a vague concept that it will give clinicians carte blanche and so make patients scared to contact mental health services. I understand those concerns. I would be concerned if that were the case. The last thing I would wish to do would be to discourage people seeking help which the service should be giving to them, but “appropriateness” is neither a loose nor a novel concept; it is already used in the criteria. Moreover, it captures the decision that needs to be made: is suitable treatment available for the patient? I have said that the appropriate treatment test does not give professionals carte blanche. As with any judgment they make in any field, clinicians must make their decision in a professional, ethical way and be prepared to defend it. Sometimes in our debates we have lost sight of the ethos of the professions we are concerned about.

It has also been argued that the appropriate treatment test may require clinicians to act unethically, either by detaining people without treatment or by giving treatment they consider clinically inappropriate. I do not believe that the appropriate treatment test could possibly be said to force clinicians to act unethically; it is a test of whether suitable treatment is available. If clinicians do not think that such treatment is available, they will not—indeed, they must not—recommend detention. If a clinician subsequently discovers that the original assessment was wrong, and there is no appropriate treatment to offer, they must take the relevant steps to secure the patient’s discharge.

The noble Earl, Lord Howe, asked, if appropriate treatment in some cases could consist of a therapeutic regime under clinical supervision that helped control the effects of a patient’s condition, what was there to stop such an approach in all cases? His description very much relates to the Reid case and the implications of it. It is implicit, surely, in the concept of appropriateness that what is appropriate for one person will not be appropriate for another. There are undoubtedly some patients—probably only a small minority—for whom the only appropriate treatment is the kind of therapeutic regime that, the Law Lords decided in the case of Reid, not only constitutes medical treatment but also meets the treatability test. They may be people with a mental disorder that is largely intractable but for whom some of their symptoms, at least, can be alleviated to a degree. Clearly, such treatment would not be appropriate for a person whose mental disorder was potentially curable or where medication, say, would be likely to have a greater effect than a supervised therapeutic regime.

In other words, what is appropriate inevitably relates in part to what can be achieved. I do not see how it can allow anyone to be detained for treatment that has not even tried to achieve what can reasonably be expected to be possible. Furthermore, the appropriate treatment test has its own distinctive advantages. In particular, it requires a holistic assessment of the patient’s needs—their clinical needs and their personal circumstances. It requires that there should be treatment available that suits the patient’s needs in the round.

I accept that there are lingering doubts about the appropriate treatment approach. That is why I have tabled government Amendments Nos. 8, 11 and 12. They provide in terms that references to medical treatment for a mental disorder means medical treatment for the purpose of alleviating the disorder, its symptoms or effects or preventing the disorder, its symptoms or effects worsening. In other words, they make explicit what the Government have always intended to be implicit; namely, that the purpose of medical treatment under the Act must be to address the person's mental disorder or its effects. It follows that no treatment could ever be appropriate unless it has that purpose.

Noble Lords have focused on the use of the words “or effects” and suggested that the provision is too wide and would allow a person to be detained just to stop them from carrying out certain activity. One suggestion was swearing, and there were one or two other suggestions about some activity which perhaps would be deemed to offend society as a whole. The reason for including the word “effects” is that if we do not say that the purpose can be to alleviate effects or stop them worsening, what would happen in the case of a person with a chronic condition for whom treatment could realistically only address the symptoms or effects? I simply do not recognise the wider fears that noble Lords have about the use of the word “effects” as an intent of the Government. As I have said, I am willing to take this matter back to allow for further discussions between Report and Third Reading to see whether further progress can be made. My tabling these amendments today reflects my willingness to listen to what happened in Committee and to take a positive approach. I am quite happy and prepared to continue that positive approach.

My Lords, first, I am grateful to the Minister for addressing the debate in such detail and for giving a response that has been helpful to a limited extent. Secondly, I thank all those who have taken part in this debate of nearly an hour on an important issue at the centre of the concerns that many of us have about the Bill and the Government's approach to the reform of compulsory mental health law. I was going to spend a little time answering the noble Lord, Lord Soley, but I will not because, in my view, the noble Baroness, Lady Murphy, has briefly but comprehensively answered the point that he sought to make.

Clinicians are obliged to act within the law, whatever their medical ethical codes say. We in this place and the other place make the law and the power of Parliament is such that if we pass a law that forces a change in their ethical code, it is only on the highest slopes of judicial review—possibly even in the European Court of Human Rights—that there is any prospect of obtaining change. I am very persuaded by the fact that we have heard from two extremely distinguished psychiatrists during the debate: the noble Baroness, Lady Murphy, and my noble friend Lord Alderdice, who have expressed great misgivings about the Government's approach to the whole question of therapeutic benefit.

We have heard not only from them. Over the weeks and months we have heard from many of their colleagues, in particular, from the Royal College of Psychiatrists. They are all totally unpersuaded by the Government's approach. Nobody who could properly be treated, as the noble Baroness, Lady Murphy, said, would be excluded if our Amendments Nos. 4, 6 and 7 were adopted.

The Minister generously offered to talk further on the matter. However, I see no meaningful sign of movement in his approach. He said to the House just a few moments ago that the Government still, after this debate, see a justification for leaving in the words, “or effects”. Considering that remark, it seems to me that the time has come for the House to show what it thinks on the issue of therapeutic benefit.

My Lords, I simply say to the noble Lord that it is clear from the debate that there is some doubt about the meaning of the words, “or effects”. I merely suggested that it might be appropriate to take a little time to explore that between this stage and the next.

My Lords, I am very grateful for that, but the Government have had since March 2005, to take an important date when the Joint Committee's report was produced, to consider the issue. They had notice of the amendments. For the life of me, I cannot see how the words of Amendment No. 4 disadvantage the Government in any way whatever. Other stages of the Bill will take place, not least in the other place. In my view, the time has come for this House to express an opinion on the issue. That is what I propose to ask the House to do. I hope that that will not be regarded as discourteous by the Minister. It seems to me an appropriate step at this stage.

5: After Clause 5, insert the following new Clause—

“Renewal of detention

(1) Section 20 of the 1983 Act (duration of authority) is amended as follows.

(2) In subsection (3), after paragraph (a), insert—

(aa) to arrange for the patient to be examined by— (i) the registered medical practitioner who has been professionally concerned with the medical treatment of the patient; or (ii) if no such practitioner is available, a registered medical practitioner who is an approved clinician, and” (3) In subsection (3)(b) for “if it appears to him that the conditions set out in subsection (4) below are satisfied, to” substitute “if the responsible clinician and the medical practitioner agree that the requirements of subsection (4) are satisfied the responsible clinician shall””

The noble Lord said: My Lords, Amendment No. 5 is grouped with a number of other amendments and a significant number of government amendments. This group relates to an important issue; the renewal of detention and the renewal of community treatment orders. We are grateful that the Government have gone some way towards accepting that the proposals on renewal that were in the Bill prior to these amendments were unsatisfactory. Those of us who have put our names to the amendments believe that deciding to renew detention or a community treatment order is an extremely serious step. Indeed, we believe that it is no less serious a step than deciding to section someone in the first place. Each renewal of detention is a fresh deprivation of liberty. Every renewal of a community treatment order imposes serious conditions on the freedom of the person who is the subject of the order to go about their everyday lives.

We believe that the legislation should ensure that a fully qualified medical practitioner is always fully involved in what must be a robust decision-making process. Of course, many other highly competent clinicians are involved in many cases, and I do not suggest for a moment that those other people are not well qualified to take part in that robust decision-making process. Nevertheless, a fully qualified medical practitioner can be expected to have the full kit of qualifications, including the ability to make a full clinical assessment of the pharmacological and psychological effects of any drugs that have been, or may be, prescribed when that renewal decision is being taken. Our amendments would require one medical practitioner to examine the patient, and a responsible clinician and a medical practitioner to agree before detention can be renewed.

The Government have offered a concession, which I have considered with some care, but I am afraid that it is not acceptable in its present form. We are grateful that the Government have certainly moved from their previous stance that only one responsible clinician, who may not be medically qualified, should be involved in a renewal decision. Their amendments suggest that it would be appropriate if the clinician at least consulted a doctor before taking those decisions, but consultation is insufficient for such an important decision. I beg to move.

My Lords, I support all that the noble Lord, Lord Carlile, said, and I do not propose to repeat those points. I would, however, ask the Minister to focus on a particular aspect of this issue when he replies. The Government have sought to respond to some of the concerns expressed in Committee by tabling amendments that would require the responsible clinician, if he is not a registered medical practitioner, to consult a medical practitioner who has examined the patient before a renewal passport is issued. To be clear, is it correct that consulting a medical practitioner is not the same as agreeing with that practitioner? What happens if the two professionals do not agree? What processes are there for resolving disputes of this kind in which, say, a doctor does not believe that there are valid grounds for a renewal passport and the responsible clinician does? If the responsible clinician remains in overall charge of the patient, is his or her opinion trumped by that of a doctor? If so, where does the government amendment make that clear? Who, in the end, takes the decision?

Secondly, the concerns which I and others raised in Committee related primarily to professional expertise. Our worry was that renewal of the detention order is at least as complex a business as the original decision to detain—it is often more so—and therefore it cannot be right to allow for professionals who lack the necessary competencies to take the renewal decision. This concern has since been echoed by the Joint Committee on Human Rights following a case heard by the European Court. The key requirement from the human rights point of view is that the approval of the responsible clinician should depend for its validity on his competence to provide the objective medical expertise required by the convention. Either he has that competence or he does not. I continue to argue that it is essential for a medical practitioner to be intimately involved in the decision making. Initially the Government took a different view but they have now changed their mind. Do they now acknowledge that the Bill in its current form is not human rights compliant, and if so do they believe that their amendments put right the defect?

It has been put to me by the British Psychological Society that we should on no account rule out the possibility of psychologists, with the appropriate training and experience, acting as the responsible clinician and being able to decide on their own account whether the person under examination meets the criteria for continued detention. In other words, the society does not accept that a doctor always needs to be involved. It would appear from the Government’s amendments that they do not now agree with that proposition even though they have argued for it in the past. But the issue raised by the BPS in turn begs the question of the competencies that would be required of anyone carrying the job title of responsible clinician or approved clinician. The Minister spoke about these at some length in Committee. One of the competencies will be,

“the ability to identify the presence or absence of mental disorder and the severity of the disorder”.—[Official Report, 15/1/07; col. 446.]

Can the Minister clarify that point? Will the competencies required of responsible or approved clinicians amount to an ability to meet the ECHR criteria for objective medical expertise? Was that what she was trying to say? If so, in what way will those competencies be evidenced and proven? Notwithstanding their amendments tabled here and the opinion of the Joint Committee, do the Government envisage a time when psychologists might be granted sole responsibility for determining a renewal decision?

I welcome the fact that the Government have moved in the direction urged by many of us in Committee. However, some important questions have been left dangling and I am a little worried that if the government amendments are accepted as they stand, we will be left with some important uncertainties.

My Lords, I am grateful to the Minister for his amendment which definitely goes part of the way to achieving what a number of us discussed with him outside this Chamber. I want to focus on one point. As the government amendment stands, there is the rather ludicrous possibility that an occupational therapist or nurse, for example, as the responsible clinician, could consult a psychiatrist, with 13 years of training and experience. That psychiatrist might conclude that a renewal would not be appropriate, but as I understand the proposed amendment the occupational therapist or nurse could overrule that conclusion and could simply renew the detention. Alternatively, a highly experienced psychiatrist could conclude that a patient would be a danger to themselves or others if the detention was not renewed at that time and they were discharged. However, a slightly ideological occupational therapist or nurse might nevertheless say, “Why not? We’ll discharge this patient”. I cannot believe that the Government really want the serious possibility of that state of affairs on the statute book. Therefore I seek an assurance from the Minister that he will feel able to put that right and ensure that the medical opinion is in line with that of the responsible clinician before decisions not only on a renewal but also on a raft of other key aspects under the Mental Health Act 1983 and envisaged in this Bill are made.

My Lords, I shall be brief. This debate centres on the legal requirement that detention under the mental health powers must be based on objective medical evidence. That is the test established in the European Court of Human Rights and it is the matter addressed with such clarity by the Joint Committee on Human Rights. The Government’s view that objective medical evidence need not be provided by a doctor had been—here I choose my words carefully—a minority view among legal commentators and stakeholders debating the Bill. I see that the Joint Committee on Human Rights also does not agree with the Government’s definition of objective medical expertise and that it found the Government’s arguments on this matter in the context of renewal unconvincing. It therefore seems likely that convention compliance requires a doctor’s involvement in the renewal of detention and that such a renewal should be based on objective medical evidence. I do not believe that the government amendments provide sufficient involvement for the simple reason that the law would require only that a doctor is consulted in the renewal process. There are no requirements on the specific nature of such consultation—it could be a brief telephone conversation—and the renewing professional would not appear to be bound only to renew the detention if the consultation supported that action.

By contrast I have no hesitation in supporting the amendment moved by the noble Lord, Lord Carlile, which would make it a requirement that a doctor examines the patient and concurs that the conditions for detention continue to be met. That is what is and should be required of our legislation.

My Lords, Amendments Nos. 5, 18, 19, 34, 37, 38, 41A, 42, 42A, 45A, 46A, 48, 49 and 50 concern key decisions about a patient’s case and the professionals who should be involved in making those decisions. Of course we agree that renewing a person’s detention is an extremely important step. The Bill places the responsibility for renewing a patient’s detention and for extending or revoking their community treatment order with the patient’s responsible clinician and an approved mental health professional must also agree before such an order can be revoked. In many cases the responsible clinician will be a doctor. However, in some cases where it is appropriate to the patient’s needs, the responsible clinician may be an approved person from another profession.

In Committee and again today we have debated who should be responsible for renewing detention, and I note that Amendment No. 5 differs from the one tabled in Committee. However, the Government still cannot support this amendment, nor can they support the amendments about extending or revoking a patient’s community treatment order because they undermine the role of the responsible clinician and the policy on expanding professional roles in line with new ways of working.

We have heard arguments relating mainly to the importance of psychiatrists or medical doctors in making key decisions about patients. However, other views have not yet been heard which take a different perspective on the matter. We have received letters opposing any amendment that would put in the Bill a requirement for a doctor to be involved in the decisions taken by a responsible clinician. They suggest that even the compromise proposed by our amendment is unnecessary. Letters expressing this view have been received from the British Psychological Society, the Royal College of Nursing, the College of Occupational Therapists, Dr Christine Vize, consultant psychiatrist at Tees and North-East Yorkshire Mental Health Trust, Dr Stephen Humphries, consultant psychiatrist at Avon and Wiltshire Mental Health Partnership Trust and Geraldine Strathdee, consultant psychiatrist and director of clinical services at Oxleas Foundation Trust. These individuals and professional bodies strongly believe that it is wrong for the psychiatrist’s involvement in key decisions to be paramount to the exclusion of other members of the multidisciplinary team. They believe that to do so would undermine the expertise of the responsible clinician and the important contribution made by other members of the multidisciplinary team. We agree with this point of view, but we feel that a compromise may be needed.

Currently, key functions must be allocated along strict professional boundaries, but we do not believe that this is the most effective or efficient way of operating. It is the Government’s aim that key functions should be performed by the most appropriate professional. All responsible clinicians in England will be approved as approved clinicians by strategic health authorities. They must have demonstrated high levels of skill and experience in mental health and have undergone specific training in order to be approved. The competencies that must be demonstrated before a person can be approved have been agreed with a wide range of stakeholders, including the Royal College of Psychiatrists, and will be in directions that have the force of law.

There are clearly strong feelings on this issue from both sides of the debate. We are therefore prepared to offer a compromise by amending the Bill to ensure that a responsible clinician who is not a doctor consults a doctor before making key decisions. Government Amendments Nos. 18, 19, 34, 37, 38, 42, 48, 49 and 50 would require a responsible clinician who is not a doctor to consult a doctor who has been professionally concerned with the patient’s medical treatment or who is an approved clinician who has examined the patient before furnishing the report renewing a patient’s detention before initiating, extending or revoking a community treatment order and before furnishing the report redetaining a patient who has been absent without leave for more than 28 days. Naturally, we would expect a responsible clinician to consult the multidisciplinary team, including a doctor, as a matter of good practice, but the amendments would place the requirement to consult a doctor into law.

The amendments will ensure that the expertise of a doctor will inform key decisions about a patient’s case without fundamentally undermining the Government’s policy that a patient’s responsible clinician, who has been selected because he or she has the expertise best suited to the patient’s needs and who has the broadest knowledge of the patient’s case, should have the final say in such decisions. To require the responsible clinician to gain the agreement of a doctor before they can renew the patient’s detention or extend or revoke the patient’s community treatment order, as Amendment No. 5 would require, implies that a doctor’s opinion is always the most important one in making these decisions. Of course the responsible clinician should take account of the views of the whole multidisciplinary team.

The noble Earl, Lord Howe, and the noble Baroness, Lady Meacher, asked what would happen if a doctor who is consulted disagrees with the responsible clinician. It is right that the responsible clinician should have the final say, because they have overall responsibility for the patient’s case and therefore the best knowledge about the patient’s current condition. They have been selected because they have the expertise most suited to the patient’s needs. They will also have access to the range of professionals from the patient’s multidisciplinary team and will weigh up all views in coming to a decision about the patient.

We expect that in most cases, the responsible clinician and the doctor should negotiate to come to a mutually acceptable decision. If there is a fundamental difference of opinion that cannot be resolved, there are several routes through which a psychiatrist can have the view of the responsible clinician reviewed. They can ask the hospital managers to consider whether the patient should be discharged; they can suggest to the nearest relative that they may want to consider using their powers to discharge the patient; they can suggest to the patient that they may want to seek a tribunal hearing; and they can request that the Secretary of State refers the patient’s case to the tribunal.

My Lords, if a responsible medical officer, be it a consultant psychiatrist or the patient’s general practitioner, disagreed with the clinician, would they be required to continue prescribing medication for the patient in a context which they believed to be clinically unsuitable, because a non-medical practitioner would not be in a position to prescribe the medication? From what the Minister has said, it seems that a doctor would be required to continue to prescribe medication for a patient in a context which he or she felt was inappropriate.

My Lords, I will seek clarification on that point from people more expert than I. However, it seems to me that the medical doctor or the psychiatrist would have to exercise her or his clinical judgment about whether to prescribe whatever medication was being taken.

My Lords, the reverse of that is that if the doctor said that the patient must be readmitted and the psychologist disagreed, the psychologist might have to continue treatment that he thought inappropriate. In other words, we do not resolve things in this way; ultimately, it is the team approach that matters.

My Lords, perhaps I might clarify this for the Minister. None of the psychological techniques in use is unavailable to psychiatrists, but a psychologist is not in a position to prescribe medication. That is the point.

My Lords, I am grateful for that clarification. However, I fully agree that the team approach is the best one.

The noble Earl, Lord Howe, and the noble Lord, Lord Patel, asked whether we thought that the legislation was human rights-compliant. Yes, we do. The Winterwerp judgment of the European Court of Human Rights decreed that except in an emergency, a person should not be deprived of their liberty unless they have been reliably shown to be of unsound mind, which must be established by objective medical expertise. We fundamentally disagree with the view that only psychiatrists can provide this objective medical expertise. We do not believe that the European Court of Human Rights was seeking to require that only the medical expertise of a psychiatrist would be acceptable. Instead, we believe that the judgment can be interpreted more broadly as referring to relevant medical expertise which may be from mental health professionals with qualifications in disciplines other than psychiatry.

My Lords, I am on the Joint Committee on Human Rights which wrote the report on that matter. Is the Minister able to support what she has just said with any decision made by the European Court of Human Rights, because what she said surprised me?

My Lords, I will have to write to the noble Lord on that issue; I will do so gladly and with expediency, and will put a copy of my letter in the Library.

We understand the concerns that have been expressed today. Our policy has always been that the decisions of the responsible clinician must be founded on consultation with the multidisciplinary team. However, we feel that the responsible clinician must retain the final say in those decisions, as the person with overall responsibility for the patient’s case. We have offered a compromise so that we can place what is already good practice in statute.

The amendment in the names of the noble Lord, Lord Carlile, the noble Earl, Lord Howe, and the noble Baroness, Lady Meacher, concerning the procedure for extending a community treatment order also requires an AMHP to agree that the conditions for extension are met. We fully agree that the extension of a community treatment order deserves very careful consideration, which is why the Bill provides a robust process for that decision. The responsible clinician must examine the patient and consult another person who has been professionally concerned with the patient’s medical treatment. If the responsible clinician is not a doctor, then the person consulted must be a doctor, or if the doctor has not been involved in the patient’s treatment, then a doctor who is an approved clinician who has examined the patient must be consulted. The responsible clinician must then submit a report to the hospital managers with the outcome of that consultation. On receipt of the report, the hospital managers may hold a hearing to consider whether they wish to exercise their power of discharge. Where the hospital managers are not satisfied that a patient should remain on the community treatment order, they have the power, under Section 23 of the Act, to discharge the patient.

There are other safeguards to ensure that a patient does not remain subject to a community treatment order inappropriately or indefinitely. Given these safeguards, and the rigorous procedure for extension, we do not believe that it is necessary to put an additional step in the process for extending a community treatment order by requiring the agreement of an AMHP. It would mean a different process from that for the renewal of detention. That does not seem logical, particularly if the process already requires consultation with other professionals involved in patient care.

I commend Amendments Nos. 18, 19, 34, 37, 38, 42, 48, 49 and 50 to the House and invite the noble Lord, Lord Carlile of Berriew, to withdraw the amendment.

My Lords, I am very grateful to everyone who has spoken in this short debate, which was on an extremely important issue of principle. The Minister’s full exegesis of the background to the Government’s view and their current position has been extremely helpful to all of us who have listened to the debate. I listened with great care to her very full presentation to try to ascertain whether there had been any movement at all by the Government on this issue; I am afraid that I have come to the conclusion that there has not.

The Minister’s responses to the point about the European Convention on Human Rights, the intervention by my noble friend Lord Lester of Herne Hill and the earlier intervention by the noble Lord, Lord Patel, have left me drawing this conclusion about the ECHR issue; the law is against the Government. The Joint Committee on Human Rights was right. The advice that, I take it, the noble Lord, Lord Patel, has received from the Mental Health Act Commission, which he chairs, seems right. The Government have provided absolutely no case law, no legal opinion and no background that is in any way credible to show that their view is right. As a Member of this House, a lawyer and, I hope, a conscientious legislator, I am simply not prepared to allow a clause to pass when it seems so contrary to a fundamental aspect of the law—namely, the Human Rights Act—that all legislation going through this House must comply with.

On the subject very helpfully raised by my noble friend Lord Alderdice, we had the response fed to the noble Baroness by the noble Lord, Lord Soley, that teamwork is the right approach. That, I presume, assumes that teamwork was not going to be involved in any event. The notion that psychiatrists and other clinicians do not work together with social workers, families and all other interested parties in these critical cases is of course absurd. I am sure that the noble Baroness did not mean to imply that. Of course I will give way.

My Lords, I certainly did not mean to imply that teamwork was not taking place at present. The whole premise of what we are doing in this mental health legislation to do with the approved clinicians is based on the notion of teamwork. The noble Lord said that I was fed the answer; I am very grateful to my noble friend for providing me with that answer. Throughout the response that I gave to the amendment I focused on teamwork, and I apologise to all professionals concerned if I did not recognise that it already exists. We are placing greater emphasis on teamwork.

My Lords, the noble Baroness has absolutely no need to apologise to the House. She made her position and that of the Government completely clear at all stages of her speech. However, this is about the part that should be played in the team by the fully medically qualified practitioner. As my noble friend said, only the doctor has all the kit, as I put it earlier, and all the qualifications to make a full assessment, including the pharmacological effect of the drugs that he may well have to prescribe after the decision has been made.

My Lords, we ought to look at this again. Psychiatrists are involved in two very important areas. One is the pharmacological area; the other is to identify whether the behaviour is a result of a physical condition rather than a mental one. It is important to note that, when teams go out to readmit people or to do other things of that nature, they may have the doctor’s knowledge but they often work without doctors. That is no bad thing; it is teamwork.

My Lords, I agree entirely with the noble Lord that these clinical teams involve many other people. We are talking about whether people should be readmitted to a hospital, where they may spend many years, or whether there should be a renewal of a community treatment order. My view, and the view of all of us who have been involved in the creation of this simple set of amendments, is that it is essential that the fully qualified medical practitioner, with the full kit, should be a key part of that decision.

The Government’s proposed amendments do not achieve that. I regret that very much, because it seemed to me, when these amendments were drafted, likely that the Government would go the extra yards to accept the amendments. However, given what appears to me to be an unwillingness to move, I feel that I have no option, even at this late hour, other than to test the opinion of the House.

Clause 7 [Appropriate treatment test in Part 4 of 1983 Act]:

6: Clause 7 , page 4, line 16, leave out subsection (2)

7: Clause 7 , page 4, line 24, leave out from “is” to end of line 26 and insert “likely to alleviate or prevent a deterioration in his condition.””

On Question, amendments agreed to.

Clause 8 [Change in definition of “medical treatment”]:

[Amendment No. 8 not moved.]

My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, I suggest that Report begin again not before 8.36 pm.

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

Children: Custody

rose to ask Her Majesty’s Government whether physical restraints, including seclusion and strip searching, are used on children in custody.

The noble Lord said: My Lords, if any of your Lordships are fed up with the sound of my voice today, I should say that no one is more so than me.

I welcome the opportunity to hold this debate, now that time has passed in which to digest the report of an inquiry I chaired, produced last year for the Howard League for Penal Reform. I declare an interest as the president of the Howard League. The report recommended that mechanical restraints such as handcuffs should never be used on children in custody; that the use of physical intervention should be severely restricted; that physical force should never be used to secure compliance or as punishment; that stripping children during searches should end; that prison segregation units should not be used for children; and that the Children’s Minister, not the Home Office, should have overall responsibility for children in the penal system. I shall be very interested to hear the Minister’s response to that last point, as some press reports have indicated that the Government may well be reviewing the situation and are thinking of transferring overall responsibility for children in the penal system to the Children’s Minister. Children are children are children, whatever they have done.

On 29 January 2007, as reported at col. 6 of the Official Report, the noble Lord, Lord Bassam of Brighton, stated that occasionally physical restraint, regrettably, has to be used on young people in secure accommodation but that it is for their own safety or for the safety of others. I am afraid that that answer, particularly the use of the word “occasionally”, showed a failure by the Government to understand the scale of the problem. Little has changed since the publication of the Howard League report. There are about 2,900 children in custody, of whom about 230 are in secure children’s homes, 270 in secure training centres and the remainder in young offender institutions. In the 12 months leading up to last October, as revealed in an article by Jamie Doward in yesterday’s Observer newspaper, written after he had been through some statistics which Ministers had kindly provided in answer to a series of parliamentary Written Questions, prisons used physical restraint on children in young offender institutions on 4,801 occasions. I suppose that, if you were to interpret the language in its most literal sense, that may mean “occasionally” 4,801 times, but given that similar restraint methods were employed in the same period in secure training centres on 3,036 occasions, adding up to nearly 8,000 occasions overall, one could hardly describe the use of physical restraint as occasional.

Indeed, the use of other measures to which the report referred has continued unabated, although the statistics are more available than they used to be. Our inquiry for the Howard League for Penal Reform found that one in five instances of restraint resulted in an injury either to the child or to a staff member. Last year, at Hindley young offender institution, three children sustained fractured wrists as a result of the use of control and restraint. At Ashfield in Bristol, on average, 30 boys each month are held in solitary confinement.

My inquiry, through the good offices of the Howard League for Penal Reform, visited segregation units and saw how young people and children are kept in solitary confinement. I can tell the House that the conditions in solitary confinement have not changed physically for decades. Some of the cells used for solitary confinement—and some stay in those cells for up to 28 days—are positively medieval in their physical facilities. I am afraid that in some places there are some medieval attitudes consistent with the physical facilities.

In my view there is absolutely no occasion on which it is necessary to carry out the fully undignified total strip-search. There is never an occasion where it can be justifiable to require a boy or girl to remove all their clothing, top and bottom, at the same time, but it happens. When are strip-searches justifiable? They may be justifiable in a small number of instances where there is a real ground for believing that, for example, drugs or other contraband are concealed. Those sorts of instances do happen. However, they cannot have happened 6,832 times at Huntercombe between January 2005 and October 2006. It is inconceivable that more than a handful of strip-searches, even conducted in a dignified way, were justified in that period.

The Chief Inspector of Prisons, Anne Owers, stated last year that at Huntercombe, children and young people were still automatically strip-searched in some instances. She was very concerned that force was used for those who did not agree to be strip-searched. Noble Lords should put themselves in the position of an immature child: they may be violent and dishonest, but they are often mentally ill and almost always immature. They go into a place such as Huntercombe, which does not stand alone in this matter, and automatically, as the chief inspector put it, they are strip-searched. Their human dignity is removed at a stroke, the moment they arrive.

When you set alongside that some of the induction videos that I have seen which are used for children who enter these institutions, you are left in despair. They had me thinking of television of the quality of “In Town Tonight”. I mention such an old programme because we are a rather aged House and there will be people here who can remember the rather rudimentary form of television used by that programme. If you want to engage with children, you put things in front of them that they understand. You use DVDs which talk to them in the way that computer programmes such as the Sims talk to young and older children these days. You engage with them so that they feel part of the process.

If our custodial institutions, which contain far too many children, are to have any effect in improving their lives, it has to be on the basis of a contract between the child and the institution. It may be that most of the conditions are made by the institution, but if you cannot induce consent from the child, you have lost the battle and are pushing them through the inevitable revolving door which will lead them from local authority secure children's home to secure training centre, from secure training centre to young offender institution, from there to prison and within prison to indefinite sentences, which are being given to thousands of people. They will be the very people who will add to the huge problem of overcrowding in prisons today, much of which is caused by people effectively facing life sentences.

The Howard League for Penal Reform report, which was contributed to by many people, including the noble Lord, Lord Ramsbotham, was a wake-up call to the Youth Justice Board and the Government, but judging by what has happened since we produced the report, they have been waking up very slowly. As long ago as 1996, the Audit Commission, in a memorable report, demonstrated that, if you spend £1 when a youngster is a child on the prevention of crime, at 1996 prices you save £7 later. If one conservatively doubles those figures to meet 2007 prices, you have clear evidence that we are throwing the wrong money at the problem in the wrong way. By brutalising children in particular in the ways that I mentioned, and which the report refers to, we are perpetuating the problem. I hope that we will hear a constructive answer from the Minister about those issues tonight, and I look forward to hearing some interesting speeches.

My Lords, it is a privilege to follow the noble Lord. We all hugely admire his report, which has been a benchmark against which we should test standards of care for children in such institutions. I make a formal declaration of interest. The executive search firm of which I am a partner has recently been entrusted with an assignment for the Youth Justice Board. I am not personally involved in the search, which is being led by a consultant in another practice.

I also declare a more passionate and long-term personal interest in this subject. Before I entered politics, for many years I was chairman of the juvenile court in Lambeth. I presided at the time of the Brixton riots. I also worked in child and adolescent mental health units, as well as being closely involved with the Children’s Society. I also lived in the area—a location some three miles from the recent tragic incidents.

We speak in the wake of the UNICEF report describing the unhappiness, lack of well-being and poverty of children in this country, which has come as a great shock to us all. We need to spend time thinking that through.

What struck me at the time—and I have not changed my mind since—is that, in a criminal career, if someone cared about a child, any problem would be picked up by the school and the child might be put in a special school. They might be picked up by social services and given special social service provision, or specialist mental health provision might be found for them. But the children with the least, with no advocates or stakeholders, were the ones who ended up in court. In court, you noticed that those children almost invariably could not even read the oath. They had been failed by the education system. When they did not go to school, nobody bothered to find out where they were, because, frankly, they were such a nuisance that it was better to turn a blind eye. I can think of no occasion in 15 years where a child in serious difficulties would appear in court with two adults who had been that child’s parents and carers since the child was born.

At the same time, I would constantly have conversations with my friends and colleagues about how critical it was that their child went to a particular school. They would say that two years at a particular sixth-form college would transform the child’s life and would have such an influence in terms of culture, peer group and values that the child would, after two years in that educational institute, be a new and different, cultured, civilised and enlightened person. Somehow no one seemed able to translate the values that they had for their own children, which came from care, control and supervision. What parent of teenage children does not know that it is supervision that ultimately stops them hitting the buffers from time to time? So the least privileged go down into penal institutions.

I was asked at that time to chair a report for the Children’s Society, Penal Custody for Juveniles. We came up with a series of recommendations that hold as good today as ever: that courts should not be able to sentence juveniles to prison department custody; that it should be local authority not Home Office provision; that there should be a juvenile crime authority in each local authority, a bit like the young offender teams; and that there should be proper community programmes. The noble Lord has just made the same point.

I am patron of the Surrey Community Development Trust. These are the people who really do hug hoodies and give them practical alternatives; they look after these youngsters when they are being perfectly impossible. That is the only way in which to prevent them from ending up in prison. The star of my panel was a wonderful person from NACRO called Helen Edwards. We know Helen Edwards as the head of the National Offender Management Service in the Home Office, and one of the best things that the Home Office has done is to take her on to its team.

We meet today a year after the noble Lord’s report. I especially want to emphasise the issues around education and ask the Minister what he can do to make the rest be as good as the best. There are good examples, but so often there is apathy and disappointment. We had this with children in long-stay subnormality hospitals. I gave evidence to the report 30 years ago, and we finally got to the point where those children were thought of not as subnormal but as entitled to education. We have been working on looked-after children and children in care, and the Government have often said that children in care need particular help, so surely we should do more for education of children in secure accommodation. That is why this call to the Minister for Children, who is now part of the Department for Education and Skills, surely has merit.

Lastly, and briefly, I refer to strip-searching, especially for girls. I ask noble Lords to look at the documentation around the treatment of girls who have been subject to sexual abuse. Children, especially girls, are very sensitive about their bodies and are developing their identity and working out their views on sexuality, but they have all their clothes removed, and if they do not comply they are forcibly put through a strip-search. That cannot be right or civilised.

My final message to the Minister is that it is time to bring an end to the cost-shunting. As long as the Home Office pays, children will always end up in young offender institutions. Will the Minister consider a levy on social service departments? The social services should be looking after these children, but they are very expensive and difficult and, if social services do not get a report in on time and turn a blind eye, the Home Office picks up the tab. I want the Minister to levy the social services departments so that, instead of using hidden institutions as a free gift, they are encouraged to make a virtuous decision and put the child’s interests first and not the inevitable interests of penal institutions.

My Lords, I thank the noble Lord, Lord Carlile of Berriew, and the Howard League for Penal Reform for this report. It makes the most depressing reading. Brutalisation of this kind for our most vulnerable and difficult children indicts us for neglect. Whether they are homeless, in public care or in custody, too often our troubled and troubling children are cared for by individuals, with many honourable exceptions, unequipped for the job and lacking appropriate support. Staff care very much about making a difference for children, but often they are not supported to do so.

The Carlile inquiry highlights concerns about the mental health of juveniles in the secure estate. It is essential that these settings have greater access to forensic CAMHS—child and adolescent mental health services—if staff are to respect children and model good behaviour as the inquiry recommends. Consultation to staff groups and managers by CAMHS professionals can transform the quality of care provided. A consultant forensic psychiatrist recently referred to research on in-reach teams in Grendon Underwood prison. These teams were providing very little in terms of resources, but prison officers and governors said, “It’s transformed the prison. The officers feel supported; they’re able to cope with mental health because they have a community psychiatric nurse who talks to them”.

This afternoon I spoke with the manager of a local authority secure unit, Jon Banwell, who is also the chair of the Secure Accommodation Network. His is one of the very few units with access to specialist child and adolescent mental health services. He said:

“I believe that the Forensic CAHMS input is a vital part of our behaviour management service. The guidance and advice that our staff receive from CAMHS helps ensure that we give an individual child-centred response based on an awareness of a child’s needs rather than focusing just on the immediate displayed behaviour”.

The Youth Justice Board’s research of 2005, Mental Health Needs and Effectiveness of Provision for Young Offenders in Custody and in the Community, identified one-third of juveniles in the secure estate as having mental health needs. It highlighted the many other needs of these children and young people, and I note the presence of my noble friend Lord Northbourne in this regard. Some 48 per cent had difficult relationships with their peers and family members that would benefit from an intervention.

The noble Lord, Lord Warner, in his influential 1992 report on staffing of children’s homes, Choosing with Care, thoroughly endorsed the involvement of appropriate mental health professionals on an ongoing basis as an efficient way of making use of scant child and adolescent mental health provision. I have witnessed such consultations to staff in a children’s home and spoken to managers of homeless hostels and head teachers about the benefits of such consultation to staff in terms of supporting the mental health of young people and relieving the stress on staff in daily contact with challenging children. I imagine that the Minister may well have had experience of that kind of multidisciplinary working when he was a social worker and that he would agree that it is a key part of safeguarding the welfare of children and preventing the maltreatment highlighted in the Carlile inquiry.

I warmly welcome the importance placed on CAMHS in Her Majesty's Government’s national service framework and the significant investment that they have made in this area. Can the Minister say when all providers within the juvenile secure estate will have access to specialist forensic CAMHS? I apologise for not giving him notice of this question and appreciate that he may wish to write to me.

My Lords, my contribution follows on very well from that of the noble Earl, Lord Listowel, as I want to address the same problem.

About 50 per cent of children and young people detained in custody have a profound mental illness and a further 25 per cent have behavioural disorders. One in five young offenders was also identified as having a learning disability, with an IQ below 70, and at least half have profound educational needs as well. I would wager that it is the most behaviourally disturbed and mentally disordered who are subjected to the physical restraints that the noble Lord, Lord Carlile, so ably described and which would be unthinkable to use with adults. I would wager that from my own experience of visiting with the Mental Health Act Commission those unfortunate children detained under the Mental Health Act in local authority institutions, where the relationship between the two issues was extremely clear. As the noble Earl, Lord Listowel, said, it is also true that these children and young people are far less likely to receive appropriate treatment if they are in custody than if they are not. Will the Minister explain why that is so? What are the Government’s plans to raise the standards of access to child and adolescent mental health services to those at least of any other child outside the youth justice system?

According to a report from the Healthcare Commission in November last year, primary care trusts are failing to provide adequate mental health care for all young offenders, making the task of reducing reoffending rates more difficult. It found that too many primary care trusts are failing even to meet their statutory duty to provide a health worker to youth offending teams and one-third are without a specialist mental health worker. I would not be so bold as to claim that effective mental health care at this point in their lives would necessarily reduce the 82 per cent reoffending rate for male adolescents aged 15 to 18, but I can be pretty sure that, without effective care, the offending and custody rates are not likely to go down.

The Healthcare Commission found that services for 16 to 17 year-olds were gravely inadequate in many areas, and that,

“In some cases, young people with serious mental [or] emotional health problems are facing waits of up to 18 months for treatment”.

This is before they even get into custody. With waits of that length, and with an average stay of nine months or so, they are hardly likely to get treatment while they are in custody.

The consequences of doing nothing about this group are likely to be grave. One of the striking things about talking with adult patients in special hospitals and forensic units is the fact that so many have never lived outside an institution for longer than a few months in their entire lives. An extraordinary number of them have been in young offender institutions. It seems to me extraordinary that we do not at this point provide effective interventions that are more likely to influence their futures positively than are the sort of Victorian prisons that we provide for them. No one is saying that these children and youngsters do not need containment, boundaries and certainties, or that they should be allowed to run wild and be destructive. They need containment, boundaries, a caring regime and interventions from specialists who understand about providing a different sort of care from the sort that they are getting.

My Lords, it is a pity that last week’s UNICEF report, which put Britain at the bottom of the league table of 21 industrialised countries for child well-being, did not look at the number of children coming into the criminal justice system and the number locked up. The former head of policy at the Youth Justice Board, Jon Fayle, resigned because the Government would not support its policy of reducing youth custody. Rod Morgan, the former chair who resigned a week before, protested that government targets for prosecutions shifted minor offences which used to be dealt with informally into an overstretched criminal justice system and that work to improve regimes in young offender institutions was being undermined. That is the elephant in the room in this debate.

Spending £280 million a year on locking up young people produces an 80 per cent-plus reoffending rate, and the money should be largely redirected into community measures for all but the most persistent or dangerous offenders. The number of young people in custody could be reduced by two-thirds, saving £70 million a year. As the noble Baroness has just said, half of the 3,000 under-18s in YOIs suffer from psychiatric disorders. Many vulnerable children are placed far away from their families and it is becoming harder to do any useful work with any of them. In this unfavourable environment, force is all too often used as a means of control, causing injuries, as we have heard.

My noble friend mentioned Hindley, where force was used on 236 occasions in the six months prior to the chief inspector’s visit last August. A number of children there suffered injuries as a result of C&R, including, as he mentioned, three with broken wrists. Her recent general inquiry into young people in custody found that half the boys in Hindley had been restrained, and at Brinsford it was more than a third. What is the Minister doing to see that restraint is used as a last resort, as the YJB recommends?

In the STCs, recent inspections at Medway and Oakhill show a reduction in the use of restraint, but at Hassockfield the withdrawal of the lethal seated double embrace led to an increase in the use of handcuffs. Why is there this difference between one institution and the others? The main technique now used in STCs relies on the infliction of pain. My noble friend said that that was unlawful. In the Minister’s opinion is it within the law to inflict pain deliberately on these young people as a means of control?

In an extreme case at Rainsbrook STC nearly three years ago, 15 year-old Gareth Myatt died as a result of restraint. The inquest last week heard about 34 other potentially lethal incidents where children subjected to the seated double embrace had incurred serious incidents or complained of being unable to breathe. That technique was discontinued but why was there not a review of the safety of restraint procedures generally as the Home Office promised in 1998? Should there not be an accelerated procedure for inquests on deaths in custody so that the lessons learnt from these dreadful incidents are applied as soon as possible?

The failure to keep uniform records of the use of restraint, including the ethnicity of the subjects, throughout the secure children’s estate is deplorable and must be remedied. Clearly, the YJB’s code of practice, intended to be,

“an agreed set of principles for the use of control methods in all settings where children are cared for”,

needs further development in the light of my noble friend’s report. For some, it may be a matter of life or death.

My Lords, I am grateful to the noble Lord, Lord Carlile, for arranging this debate. I assure him that we are not the least bit fed up with hearing his voice. He is a very busy person with many important commitments. We are very fortunate that he has dedicated so much of his time and energy to this relatively small group of unfortunate, unloved, unhappy and troublesome children. Unhappiness is a theme that runs through this whole sad story of our policies on children in custody. I have no doubt that we shall look back on these few years and wonder how we sank so low in our treatment of some of our saddest children.

The system is reprehensible both in its abuse of children’s rights and its ineffectiveness. It is a deplorable use of public money. How did we get into such a situation? I can only assume that it is a reflection of the Government’s strange faith in punishment as the way to solve social problems. This quite ill founded belief that punishment is the way to solve social problems must have shaped the Government’s choice of institutions that have been given the job of holding and trying to rehabilitate these damaged children, because as we heard these institutions are based on punishment.

These institutions hold two sorts of children. Some of them are minor offenders on the fringes, whose behaviour ought to be easily containable in the community. I know a family whose boy got a three-month sentence on his 16th birthday for not keeping his appointments with his social worker. However, most of these children fit into the category of those whom the inspectors for the Commission for Social Care Inspection found at Medway secure training centre; a place, incidentally, that seems to be doing the best it can. The children there presented a complexity of need. They had,

“attachment disorders, post-traumatic stress disorder, suicidal and self-harming behaviour and in increasing numbers, a history of multiple unsuccessful placements in mainstream local authority care”.

These are incredibly damaged children, failed by other services and full of unhappiness and rage.

Home Office Ministers tend to respond to questions about the treatment of these children in custody by reminding the House that some of them have committed very serious offences. I hope that the Minister will refrain from doing so on this occasion because indeed they have. We know that they have. This is what children who have been reared in violence and neglect often do. But we are holding these children in places that are completely inappropriate to their needs. Would anyone want to put a child with such complex needs and with problems which need to be sorted out if the child is to have any chance of a better life and if future violence is to be prevented, in a place such as Oakhill secure training centre? According to the latest inspection report, of June 2006, 75 children are there, but there is only one qualified social worker on the staff. Children’s access to underwear and books is limited as part of the rewards and sanctions system. Young people who are on basic privileges for one or two days are subject to a ban that prevents them leaving their unit, so they get no time in the fresh air. Not surprisingly, five employees leave every month; in one month, 16 staff resigned their posts.

Does the Minister have any comments on the suitability of Oakhill Secure Training Centre, and does it still restrict the amount of underwear and books that children can have? Have the Government any plans for a radical reform of the system, or was the report in today’s Guardian to which the noble Lord, Lord Carlile, referred—that Mr Brown favours moving youth justice to the Department for Education and Skills—just a rumour?

My Lords, I join all those who have congratulated the noble Lord, Lord Carlile, on obtaining this debate. I must declare an interest as a member of his inquiry, which was a great experience. I am very glad that his voice lasted out for his very powerful opening speech.

I am also very glad that my noble friend Lady Stern introduced the question of punishment, because one of the things that worried me most about the Government’s attitude to the criminal justice system was when I heard that the number one priority of the Probation Service had been changed from one of aftercare to one of punishment. It seemed to me to mark a very dangerous change of direction, one that was mirrored in an article in yesterday’s Observer which said that there was a very definite rift between charities, the Youth Justice Board and the prison inspectorate about what they describe as a line that has been crossed in the treatment of young people in prison and Government, who are increasingly tending to criminalise young people.

I should like to make my remarks in the context of two current events. The first is the inquest into the death of Gareth Myatt, referred to by the noble Lord, Lord Avebury, during which the previous chief executive of the Youth Justice Board, Mark Perfect, said that this death was a disaster waiting to happen and so it was a disaster that happened. I disagree profoundly with that second statement. It was a disaster that was waiting to happen but it was one that should not have been allowed to happen.

That brings me to the second part of my context, which is the very sad circumstances around the resignation of Professor Rod Morgan, the chairman of the Youth Justice Board. This is where my questions to Ministers come, because the inquiry carried out by the noble Lord, Lord Carlile, was responded to not by the Government but by the Youth Justice Board. I am surprised that if the Government take it so seriously, they did not respond. I can only assume that they were behind the responses that were made. Rod Morgan has been quoted as saying that during his three years as chair of the Youth Justice Board, he made it clear—mostly in private but occasionally in public—that he was not happy with the direction of youth justice policy.

It is the duty of the Youth Justice Board independently to advise Ministers. Recommendation 19 of our inquiry stated:

“Restraint should never be premeditated as it then becomes a punishment, not an intervention to secure safety”.

The answer was:

“We do not accept this recommendation”.

Recommendation 20 states:

“One certified physical intervention technique that is safe for children should be developed as a matter of urgency, and should be used across the secure estate”.

The answer was:

“We do not accept this recommendation”.

Recommendation 21 states:

“The YSB should oversee the use of the disciplinary system so that it is rigorously applied when an allegation is made against a member of staff”.

The answer:

“We do not accept this recommendation”.

My question to the Minister is: was this the advice that was given to Ministers by the chairman of the Youth Justice Board, or was it a deliberate recommendation response by Ministers alone?

My Lords, I thank my noble friend Lord Carlile of Berriew for this debate. He led the independent inquiry for the Howard League for Penal Reform into the use of strip-searching and physical and solitary confinement of children in penal custody. He is therefore well qualified to address the issue. I congratulate the Howard League for the initiative that it has taken on this matter. The report is compulsory reading for all those interested in penal reform. Add to that the contributions of all noble Lords who took part in this debate. They all point to a serious cause of concern, and I look forward to the Minister's response on the issues raised. On this matter, glossing over will not do.

My noble friend Lord Avebury mentioned the UNICEF report. We need to ask what exactly is happening in our penal institutions. Overall, there are nearly 11,000 under-21s in prison, and at least 300 of that number are held in young offender institutions. The number of children has more than doubled since 1993. There is a worrying trend that, despite a decline in the number of children convicted or cautioned, we now lock up more children than anywhere else in Europe. We need to ask why our justice system has produced that anomaly.

We have figures about physical force used against children—15,512 times during a 21-month period in England and Wales. In commercially managed secure training centres, physical restraint has been used over 1,200 times, despite the fact that they hold only 190 children most of whom are aged 14 and 15.

I am aware that the Youth Justice Board is responsible for commissioning secure places for children and young persons under the age of 18. Some progress has been made in commissioning new facilities, improving regimes and safeguarding. That is welcome, but we need it to undertake vigorous systematic monitoring of physical control in care and the system of physical interventions used in such centres. There is ample evidence that these institutions did not keep central records of how many children had been injured in restraint incidents.

We sentence far too many people to prison and children are no exception. It is clear that the success or failures of imprisonment are measured by the reoffending rates. As far as children are concerned, this is nearly 80 per cent. The facts are there for all to see. Prisons hardly work for children. One of the points raised in the report is the need for a holistic approach. We all know the issues identified: exclusion from schools, previously spent time in care, alcohol and drugs problems, pregnancy, previous involvement in criminal offences, and physical and mental abuse.

If there is one outcome I am looking forward to in this debate, it is an assurance from the Minister that all the recommendations of the report of the noble Lord, Lord Carlile, will be seriously considered and implemented by the Home Office. In addition, we should extend the provisions of the Children and Adoption Act 2006 to involve the Children’s Commissioner in monitoring and delivering children’s services in our secure establishments. It is time that he played an important role in that respect.

It cannot be beyond the capacity of the Home Office to ensure that children are kept in a healthy environment, that they are safe and that prisons make a positive contribution towards their welfare and economic well-being. The message must be clear and unequivocal: every child matters. Children must be protected from maltreatment and receive safe and effective care.

My Lords, I join noble Lords in congratulating the noble Lord, Lord Carlile, on securing this debate. I hope to spare the noble Lord’s blushes, but this report will go down in the annals of child custody in prisons as a seminal work, or a benchmark, as my noble friend Lady Bottomley said in an impressive contribution that drew much on her personal experiences. I urge the Government not to be deflected in any way from taking action on the demanding observations made by the noble Lord and his colleagues.

There was, as it were, a curtain raiser for this debate in the Oral Question tabled by the noble Baroness, Lady Stern, on 29 January. The questions came from all round the House and there were some demanding and informed interventions. While we have every sympathy with his position, some of the Minister’s answers were distinctly guarded. For example, in reply to a question on segregation by the noble Lord, Lord Low, the Minister replied that this was “not highly desirable”. Can he go a little further? There are seven recommendations in the report and on this matter, if on no other, the Government’s response needs to be much more robust.

I am sure that the noble Baroness, Lady Stern, will want more reassurance regarding her supplementary question on that day, which reminded the Minister that restraint was still widely used. That has been covered by the noble Lord, Lord Carlile, who gave devastating statistics. The Minister admitted that the practice was still widely used, which I understand to be the case. The five recommendations in the Carlile report were specific and demanding. Can the Minister go further than the slightly defensive language he used in response to the noble Lord’s question? Phrases such as “operational requirements” are, frankly, not reassuring. Can the Minister convince the House that these recommendations set out in, perhaps I may say, uncompromising language are being taken seriously?

In the week before the Recess, the House expressed its views in the strongest possible manner, on the initiative of the noble Lord, Lord Ramsbotham, in the vote on whether to include the Prison Service in the ambit of the Corporate Manslaughter and Corporate Homicide Bill. The inclusion of that amendment in the Bill would be a huge step forward for greater transparency and accountability within the prison system and I hope that my noble friend Lord Hunt will have some success in persuading the Government to include that measure when the Bill returns to this House. It would have an indirect and direct effect on the matters that are under discussion tonight.

My noble friend Lady Bottomley has referred to “bottom-of-the-pile” children who fetch up in the courts, sometimes unable to read the oath. There is a lower rung than that. The noble Lord, Lord Ramsbotham, in a moving speech, referred to speech and learning difficulties. Such children often cannot even speak and have been given no start at all.

This House must be indebted to the Howard League for commissioning this report and to the noble Lord, Lord Carlile, and his committee for doing such an excellent and unequivocal job in holding the Government to account. Many of the committee’s recommendations are radical. The Government must not hide behind such phrases as “operational requirements” and so on. Fresh root-and-branch thinking is required. I concede that the environment of the Oral Question of 29 January was not an easy forum for the Minister. Tonight we would like to hear evidence that the Government are really—and I mean, “really”— acting on the recommendations of the Carlile committee. I hope the House will see to it that this report and the issues it has raised will not go into the long grass or, as the noble Lord, Lord Carlile, said, be the subject of a very gentle wake-up call, and that we will have further opportunities to monitor the Government’s response. The report deserves better, as do many of those unfortunate children whose treatment has been so ruthlessly exposed.

My Lords, I start with my customary thanks to the noble Lord, Lord Carlile of Berriew, for his very valuable report, which, despite what some noble Lords may think, the Government have taken very seriously. They continue to take it very seriously and no doubt, if the comments of the noble Viscount, Lord Bridgeman, and the usual trenchant remarks of the noble Baroness, Lady Stern, are anything to go by, your Lordships’ House will not easily let us ignore it.

It is to the credit of the noble Lord, Lord Carlile, and of everyone who has taken part in the debate that these issues are always taken very seriously by your Lordships’ House. I hope that my comments this evening will go some way to reassure contributors to the debate that, although they might not agree with us, we do at least take these issues seriously and we listen and try to learn from previous experience.

Several noble Lords referred to some of the tragic instances in the youth custody arena and, in particular, to the tragic death of Gareth Myatt, whose inquest is currently in progress. Tempting though it is, it would be inappropriate for me to comment on that inquest, and we should all await the coroner’s inquiry and the outcome of the jury’s deliberations. The comments that will no doubt flow from the inquiry will be of great value to the department and to the Youth Justice Board and others in fashioning a response and in understanding better the circumstances surrounding Gareth Myatt’s tragic death. It is vital that we respect that process.

I shall begin by giving my understanding of the problem that faces the custodial part of the youth justice system and those who work in it. I shall then go on to describe the measures that the Government have taken and those that we have in hand to safeguard children and young people in custody and to ensure that their behaviour is managed effectively and humanely. In doing that, I shall try to respond to some of the points raised during the debate. I do not expect to cover all the questions that were asked, but I assure noble Lords that I will provide them with a fuller response to the points that I have been unable to cover than I would have been able to give from the Dispatch Box.

For most of those who go there, custody is the end-point of what we all accept is a lengthy journey through the youth justice system. Except for the small minority who, out of the blue, commit very serious crimes, most of those going into custody will have been the subject of several community interventions designed to help them to change their lives and to stop offending. They end up in custody because, for one reason or another, as all noble Lords who have taken part in the debate recognise, those interventions have not worked.

That may sound like a simple case of failure on the part of the system but, when one considers the complex problems that many of these young people have, it is really not at all surprising. Study after study has shown a similar picture: family breakdown; inadequate parenting; lack of schooling; low educational attainment; and alcohol and substance misuse. By any standard, that is a formidable combination of difficulties. It is regrettable but, as I say, hardly surprising that community youth justice interventions do not always provide the answer. What is clear is that these are neglected or, at best, inadequately cared-for young people whom society as a whole has failed. Sending them to custody is the last resort, when the courts have decided that other types of intervention have not succeeded and are not going to succeed.

I do not wish to suggest that custody is the solution to all those problems—far from it. At best, it provides the community and the young people themselves with some respite or a breathing space, but it should be recognised that for very disadvantaged children such as these, custody can have some positive benefits. It can remove them from a bad or unsafe environment, and it provides education and healthcare—not infrequently to higher standards than the young person has previously experienced. However, unavoidably, custody brings together a group of volatile young people whose behaviour is very difficult to manage. Some of them are very large and strong; some are aggressive; and few have any understanding of discipline or the need for self-discipline. Without the most careful management, the way that they behave will pose a risk to themselves and to others. Managing that behaviour will never be easy and, however well it is managed, there will be occasions when it is necessary to use physical intervention to prevent a young person harming himself or herself or others.

So we are asking those who work in under-18 establishments whose essential task is to care for and support these challenging young people to take on the great responsibility of managing their behaviour, which sometimes involves some risk of injury to themselves. It is right that our concern should focus on the welfare of the young person, but we also owe it to the people who do this difficult job to recognise how much is being asked of them. It is essential that they receive clear guidance and are properly trained to undertake it. But I wonder how many of us, however good the training and the guidance, would have been able and willing to undertake this demanding and often unrewarding work.

What are we doing to ensure that restraint, strip-searching and single separation are used as sparingly as possible? That has been a theme of this debate. The Youth Justice Board’s code of practice: Managing Children and Young People’s Behaviour in the Secure Estate, which was published in February last year, set the framework for a great deal of work in this area. I will give some examples.

Hassockfield secure training centre is piloting the use of a technique known as therapeutic crisis intervention to help staff defuse tense situations without having to use physical intervention. Restorative justice approaches are being piloted at Ashfield young offender institution, and a review of restorative justice work throughout the secure estate is due to report shortly.

The behaviour management code of practice has been integrated into the Youth Justice Board’s effective regimes monitoring framework, and each establishment that is not already fully compliant with the code has an action plan for achieving full compliance. The Youth Justice Board is closely monitoring implementation of those plans.

We have recognised—this point was referred to by a number of noble Lords—that statistical data that we collect on the use of restraint can be improved. A set of common definitions and new accounting rules have been agreed to enable statistical data to be collected in a way that allows clearer comparisons of practice across the three sectors of the estate. The new data reporting and recording system will come into effect from April.

The Youth Justice Board is working with the Children’s Workforce Development Council to agree core competencies for all staff working in the secure estate, so that we can raise standards of care. A review of family liaison work in relation to young people in the secure estate is under way, and that, too, is due to report shortly.

That is a snapshot of just some of what is being undertaken. I have heard it suggested that the Government have not taken these issues seriously enough. I hope that that brief resumé at least demonstrates and goes some way to convincing those who carry that view that we are very serious indeed about these issues.

I know and understand from previous debates and Questions on this subject—to some of which I have had to respond—that there are concerns about the use of handcuffs in secure training centres and the sensitive issue of the practice of strip-searching girls on arrival in custody. As far as handcuffs are concerned, practice varies. Two of the secure training centres—Medway and Rainsbrook—report that they do not use them. A third centre—Oakhill, to which the noble Baroness, Lady Stern, referred— has a policy of reducing the use of handcuffs and reports that it has not used them since April last year. Hassockfield continues to use handcuffs, but reported use has reduced considerably and the centre is piloting the use of “soft cuffs”—made from Velcro. No one likes the idea of applying handcuffs to young people. If it is possible to reduce their use, that is clearly a good thing. Clearly we shall have to give further consideration to that. Perhaps the noble Lord, Lord Carlile, could give some further consideration to it. His report did not focus in a major way on that, but I know that he is very concerned about it. I can also tell your Lordships that the Youth Justice Board is looking at the use of handcuffs more generally and hopes to report on that this year.

Young offender institutions and secure training centres, as a matter of policy, conduct a full search—a strip-search—of all young people arriving in custody. Again, that is not something we would wish to subject a young person to if it was not absolutely necessary, but we believe that it is necessary to prevent weapons and drugs being brought into establishments. The noble Lord’s report suggested that that was not the practice in secure children’s homes, but it is important to note that secure children’s homes are much smaller and take younger children. We cannot simply replicate practice that may be workable there in establishments taking large numbers of more volatile and physically mature 17 year-olds. We are, in effect, being criticised for placing too much emphasis on security but if, heaven forbid, a trainee or member of staff were to be seriously injured by a weapon smuggled into an establishment, the criticism from every quarter would be that security had not been tight enough. We have the difficult job of striking a balance that achieves the highest level of safeguarding. Weighing too heavily on either side can, of course, lead to increased risk. As I said at the outset, these are not easy or straightforward issues.

Many questions were asked; I shall try to run through some of them quickly. The noble Lord, Lord Carlile, asked about the change of departmental responsibility. The cross-government arrangements in place around Every Child Matters and Youth Matters ensure that the DfES, the Home Office and the Youth Justice Board work together to support young people and prevent offending, whether they are in or outside the youth justice system. The current view is that the system works well, and we have no plans to change the division of responsibilities.

I was impressed by the contribution of the noble Baroness, Lady Bottomley, and welcome her to this debate. The suggestion of a levy on social services was interesting and potentially attractive. There have been some discussions between the Home Office and the DfES about it, but before we could introduce such a levy we would have to be clear that a workable process was in place to enable funds to be transferred quickly and effectively. It is not something we have ruled out, however.

My time is up. There are many other questions I would like to respond to. I do not have the time to do so, but I repeat my undertaking to respond to those points that I have not managed to cover. I apologise in particular to the noble Lord, Lord Avebury, who gave me notice of his questions. I have full responses which I shall ensure are prepared for him.

My Lords, time has run out. I simply thank all noble Lords who have taken part in the debate. It is not a debate of last resort; I suspect that it will be a regular resort in the future. I thank all noble Lords, especially the Minister for his response.

Mental Health Bill [HL]

Consideration of amendments on Report resumed on Clause 8.

9: Clause 8 , page 4, line 29, leave out from “substitute” to end of line 30 and insert ““drug therapy, nursing and also psychological intervention and specialist mental health habilitation, rehabilitation and care, for mental disorder and its consequences, under the supervision of the responsible clinician;”.”

The noble Lord said: My Lords, moving back into Mental Health Bill mode, I also speak to Amendments Nos. 10 and 75. These amendments refer to matters brought to my attention since Committee by a distinguished consultant physician in Surrey and a barrister colleague of mine. With Amendment No. 73, they mainly deal with issues arising from what has become known as the Bournewood gap.

The three amendments are mainly intended to deal with two sets of circumstances; first, the provision of medical treatment to those who are mentally incapacitated—temporarily, in many cases, or permanently—but who are not suffering from mental disorder; secondly, persons who suffer from mental disorder and need non-mental health medical treatment. Those who have brought these matters to my attention say strongly—and, having considered the matter, I agree—that some clarification is needed in the law. The purpose of these amendments is to draw the matter to the attention of the Government, and to probe and, one hopes, secure a response from them, perhaps not this evening but in due course.

It is important to distinguish mental health treatment from medical treatment, or “treatment” as used in the Mental Capacity Act 2005. It would be less confusing to use the term “mental health treatment” rather than “medical treatment” in the Mental Health Bill, reserving the term “medical treatment” for medical and surgical therapy and medical treatment going beyond mental health treatment. The complexity of the issue becomes self-evident on listening to that section of my remarks.

In the Mental Health Act 1983, medical treatment refers to the treatment of the primary mental disorder and its consequences. Medical treatment for the treatment of purely surgical or medical conditions is not regulated by the Mental Health Act 1983. As an example, I refer to the case of St George’s Healthcare NHS Trust v S, a 1998 case that was reported at page 673 of Volume 3 of the All England reports of that year. In that case, it was held that a pregnant woman could not be forced to undergo a Caesarean section without her consent merely because she was undergoing compulsory psychiatric treatment under the Mental Health Act 1983. When one considers the facts of that case, it becomes evident that those providing the non-mental health medical treatment were placed in an extremely difficult position and had to make some extraordinarily complex decisions at high speed. Against that, in the case of anorexia and other eating disorders, compulsory feeding of all kinds is regarded as medical treatment under the Mental Health Act because it is correcting the malnourishment that is a direct consequence of the mental disorder causing the primary eating disorder. Conversely, the Mental Capacity Act 2005 does not provide authority for compulsory treatment for a psychiatric disorder.

That statutory disorderliness is bound to cause difficulties for clinicians seeking to provide medical treatment, in a general sense, and mental health treatment, also in a general sense. Modern psychiatric treatment involves a range of modalities and is performed by a variety of mental health professionals. It is no longer confined to drug therapy, ECT and other traditional treatments. The term “mental health treatment” is preferable to “psychiatric treatment” since the range of modern therapies and multi-disciplinary skills is now much wider. However, if one was to replace “medical treatment” with “mental health treatment”, many unpredictable consequential amendments to the Bill would be necessary and an amendment of the Bill along the lines of this amendment might well meet the need for clarification.

Amendment No. 10 clarifies the definition of treatment in the Mental Capacity Act 2005 so that it is clear that it means an intervention performed by a registered medical practitioner, not merely an intervention by, say, a nurse in a nursing home providing a catheter or insulin. Amendment No. 75, which is tabled in my name and that of my noble friend Lady Neuberger, is self-explanatory. It ensures that patients receive the same standards of healthcare whether they are compulsory or voluntary patients and whatever the setting. I concede that these are difficult and complex issues. They are part of the consequences of separate legislation dealing with separate and difficult issues. However, it is clear from what I have been told by experts working in the field—clinicians and lawyers—that there is a need for clarification and I hope that the Government can answer the cry for help. I beg to move.

My Lords, I seek clarification on one point. Those of us who come new to this material find a provision in Amendment No. 75, which refers to the possible,

“withdrawal or withholding of ordinary nursing care or personal care whether or not P [the patient] has been deprived of his liberty”.

Obviously such a provision attracts attention because no one wants to get into a situation where there could be a withdrawal or a withholding of ordinary nursing care. What I am not sure about is why the amendment is necessary. Is it because there is no provision in the Bill, or is it because there is a risk that such a situation could arise? It is something one would not expect to find. Therefore, I should like to know why it is necessary to put it into an amendment to the Mental Capacity Act 2005. I am not sure why it is required.

My Lords, the noble Lord, Lord Carlile, has, in a sense, moved a Committee-type amendment on Report. In that spirit he has asked for clarification of the law. I will give what advice I can tonight, but I also offer to write further to the noble Lord and other noble Lords, as he has raised some interesting points that will inform later debate on the Bill.

It may be helpful if I start by outlining the changes we intend to make by Clause 8 and the reasons for them. We are changing the definition of medical treatment in the Act primarily to reflect the fact that we are opening up the role currently played by the responsible medical officer to a wider group of professionals. We debated that issue just before the dinner break. Because of that change it no longer makes sense for the definition of medical treatment to refer to care, habilitation and rehabilitation under medical supervision, as “medical supervision” in this context of a definition of treatment could be interpreted as requiring the supervision of a registered medical practitioner. As we have made clear, we want medical treatments that fall within the ambit of the Act to go beyond those that can be provided by or supervised by doctors.

We are also taking the opportunity to make it explicit that the definition of medical treatment includes psychological intervention. Practical examples of psychological intervention might include cognitive therapy, behaviour therapy and counselling. Questions have been asked about issues that arise from physical conditions that can then give rise to mental disorders. Clearly, many of those disorders will be transitory and will pass with the physical disorder. So the question of using the Mental Health Act will often not arise. I say to the noble Lord, Lord Carlile, that my understanding is that A&E departments are well used to checking for instances of, for example, urinary tract infections and other common problems, which may potentially cause mental disturbance in older patients. If such an infection is found, treatment will be offered accordingly. But, clearly, when assessing patients in order to decide whether it is necessary to use the powers in the Mental Health Act, it is important to consider whether their mental health problems are a direct consequence of a physical ailment. The fact that the mental disorder can be expected to be alleviated by tackling the underlying physical condition may be decisive in deciding whether to use the Act as there will be an effective and more appropriate alternative. Overlooking such factors is a matter of poor practice rather than the law.

Conversely, I do not think that it should be assumed that it will never be appropriate to use the Act. It surely must depend on the particular circumstances of the case, the severity of the mental health problems the patient is experiencing, the persistence of the symptoms and the risk to their own safety and that of others. Our starting point is that if the person’s mental condition, whatever its cause, is putting them or others at risk sufficient to warrant detention in hospital for treatment, then there should be no arbitrary obstacles to the Act being used.

As regards case law, I have been advised that in the 1995 case of B against Croydon Health Authority medical treatment for medical disorders can include a range of acts ancillary to the core treatment a patient is receiving. That can include treatment that is a necessary prerequisite to such treatment. Each case must be judged on its merits, but it would probably be a mistake to attempt to draw rigid lines and say that treatment for an underlying physical condition could never legitimately be considered as part of treatment for mental disorder.

Amendments Nos. 10 and 75 are equally interesting. It is clearly very important to ensure that ill, frail or vulnerable people being looked after in a hospital or care home receive satisfactory—more than satisfactory—care. In a sense, the noble Lord takes us back to the amendment moved by the noble Baroness, Lady Knight, in Committee, when she raised some important matters of concern. Noble Lords will know that I have agreed to meet the noble Baroness because, although we do not think that the legislative framework is wrong, she has identified matters which, if there is hard evidence, suggest an extraordinary failure in practice in some care institutions. We need to do very much better if the poor practice that she identified is in fact happening in either the NHS or care homes.

The Mental Capacity Act has established in statute a clear and robust framework for actions and decisions to be taken for people who lack capacity to take decisions for themselves which would otherwise be unlawful. It provides a framework. Its purpose is not to set out what decision is or is not appropriate in any given place.

On the relationship between medical treatment, mental health treatment and the confusion that the noble Lord describes between the Mental Health Act and the Mental Capacity Act, I will see whether issues need to be confronted. As I said, I shall write to him. Our initial reaction is that the law is clear. The Mental Health Act provides for compulsory treatment for mental disorder. The Mental Capacity Act provides a basis for treatment of any kind for people without capacity to consent to it. However, as I said, I shall look further at the matter and, in the first instance, write to the noble Lord.

My Lords, I am very grateful to the Minister for dealing with the matter in such a constructive way. I should be happy to discuss the matter with him outside the Chamber subsequently if that is convenient and possible.

The amendment is about the confidence of clinicians—medical practitioners—in carrying out treatment on patients who have needs. It is also about ensuring that patients who may be only temporarily incapacitated and who go into nursing homes or rest homes have their rights fully protected so that they do not find themselves in some kind of limbo when they are once more capable of managing their own affairs. It has been dealt with in a very constructive spirit. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 10 to 12 not moved.]

13: After Clause 8, insert the following new Clause—

“Three month rule for second medical opinions

In section 58(1)(b) of the 1983 Act (treatment requiring consent or a second opinion) for “three months” substitute “28 days”.”

The noble Earl said: My Lords, we return to an issue that is viewed by all sections of the mental health community as being of major significance in the context of treating individuals under compulsion. It relates to the period following an order for compulsory treatment before a second medical opinion is required.

To recap on the background, the 1983 Act entitles the medical practitioner to use medication to treat a patient for his or her mental disorder without consent—and, indeed, in the teeth of the patient’s opposition—for three months. Before the end of that period, Section 58 of the Act requires a second medical opinion to be sought from a doctor appointed under Part 4 before the treatment can continue. A second opinion is mandatory under two scenarios: either where the patient does not give consent or where he lacks capacity and the responsible clinicians consider that treatment should be given.

The issue addressed by the amendment is very simple: three months of being treated without consent, or without the capacity to consent, is too long. Medication for mental illness can be dangerous and damaging to the person taking it. It involves powerful and potentially toxic chemicals that have significant adverse side effects. A patient taking these drugs can put on weight, contract diabetes, have major problems with his eyesight, become impotent, become extremely lethargic and exhibit involuntary movements of the limbs that are highly embarrassing. This medication is no picnic.

The whole business of prescribing psychiatric medication is fraught with pitfalls. Errors of judgment about dosages and what drugs are right, and so on, are not uncommon. The off-label prescribing and administering of harmfully high dosages are real and frequent problems. They can have a serious impact on the patient’s physical and mental health. Moreover, as the noble Baroness, Lady Finlay, pointed out in a previous debate, a patient’s diagnosis can change over three months. Medication and dosages may need to be changed to take account of that. For all these reasons, three months is a long time not to have a second opinion. As we heard from the noble Lord, Lord Patel, in Committee, the Mental Health Act Commission has been absolutely clear about this. It does not believe that the current Act gives enough protection to patients; nor, come to that, did the Government when they drew up the 2004 draft Bill, under which there would have been the tribunal authorisation of compulsory treatment after 28 days. It is therefore alarming that the Government are now opposing this change. The Minister’s main argument is that three months are needed to allow the person’s condition to stabilise. I cannot believe that he advances that as a serious proposition, when only a few months ago the Government were arguing for a review after 28 days. He will know, I am sure, that new medication is available nowadays and that the guidance on it is quite explicit about the length of time needed for it to be effective. In almost all cases, this is a fortnight. In the case of clozapine, it is a month.

We would do well to heed the words of the Joint Committee on Human Rights, which reported recently. It pointed up the comparison between ECT and medicines. Unlike medicines, any administration of ECT requires an immediate second opinion. The justification for this was that ECT is seen as a more controversial treatment. It said:

“There is now a recognition that the effects of some psychiatric drugs may be as unacceptable to patients as ECT, and that the likely efficacy of a particular antipsychotic medication may be assessed within one month rather than three … Three months is a long time to be in receipt of compulsory psychiatric treatment without the opportunity for review and supervision of the responsible clinician’s decision to impose that treatment, and we consider it is doubtful whether the Government’s obligation under Article 8 to provide effective supervision and review of treatment without consent is discharged by such a long waiting time”.

That was the committee’s conclusion. The issue for the committee was whether the three-month delay allowed for in the current Act is a breach of Article 8, and, if it is, whether that breach can be justified as being proportionate to the aims of reducing the risk posed by a person’s mental disorder and of improving their health. The committee reached the view that the justification for the provision was “doubtful”. I put it to the Minister that this opinion by the committee sets the seal on the whole issue. The law as it stands is not right and we need to change it. I beg to move.

My Lords, I support the words of the noble Earl, Lord Howe, who has made a strong case for why three months is simply too long. I want to add just a couple of points to his remarks. First, those of us who have been in professional practice or have chaired NHS trusts have experience of what can only be described as “macho prescribing”. People are prescribing at doses above the BNF recommendation. Patients have a real fear of that and it is one of the reasons why a review after a month rather than three months is something we ought to press for very hard.

My second point is one that we have considered in the context of a whole variety of issues as we have debated the Bill: we are concerned about public safety. If patients are frightened of the treatment they may receive, they are less likely to seek it. If they feel that they will be treated compulsorily, they will become even more anxious if that treatment is not reviewed with a second opinion after one month rather than three months. All this will be going on for too long and that makes people more fearful. The more fearful they are, the less likely they are to seek early treatment and the more likely it is that they will fall into the compulsory net. The circle then goes around all over again.

Simply to add to the words of the noble Earl, Lord Howe, we need to think hard not only about the opinion of the Joint Committee on Human Rights, but also about the effect on patients and how they feel about this. We must consider how in the longer term they will accept treatment, either voluntarily or compulsorily.

My Lords, I am grateful to the noble Earl, Lord Howe, for bringing this amendment back to the House on Report. I supported it in our previous debates and I continue to support it now. I should add that I am chairman of the Mental Health Act Commission, which administers second opinions under the 1983 Act. I argued at Second Reading that the additional costs of reducing the three-month rule to a one-month rule should be met, as this was a measure that would improve patient safeguards and respect for human rights. The Minister argued against any change on three grounds.

First, he argued that certification before three months might be too restrictive and would not allow for different drugs to be tried before the right one was found. This is unlikely to be true for the simple technical reason that certificates tend to authorise drugs in terms of the BNF category rather than naming individual drugs, so there would still be some room for the trial and error that characterises the initial stages of treatment. Secondly, the Minister argued that some drugs do not take effect for a number of weeks. It is true, for example, that antidepressants can take up to a month to have any effect, and that this could cause difficulties where second-opinion doctors might be asked to authorise the continuation of treatment whose beneficial effects had not yet been demonstrated. But, of course, our doctors frequently do this, for instance when there are proposed changes to treatment plans after a patient’s “three-month period” is over. Consideration of as yet untried changes to individual patients’ treatment is a large part of the second-opinion role, and this objection is thus misplaced.

Finally, the Minister was concerned at the additional cost and use of psychiatrists’ time. Underlying this concern is a worrying implication that the benefit to patients in having the safeguard of a second opinion does not outweigh the cost of providing that second opinion. I cannot accept that. The Mental Health Act Commission’s last biennial report highlighted that a significant change is made to a patient’s treatment plan as the result of a second opinion visit on every working day of the year. But many detained patients will never see a second-opinion doctor or have their treatment subjected to such scrutiny because they are discharged within three months of treatment commencing. Others who remain in hospital and go on to see a second-opinion doctor may quite justifiably wonder where that safeguard has been for the initial period of their detention.

The amendment could improve patient care and patients’ confidence in their care. The consent provisions in the 1983 Act, of which this is a crucial part, were hard won in 1982, following powerful lobbying at the time by Mind, in the shape of Larry Gostin and the late Tony Smythe. But the idea was very new when the three-month rule emerged. We now have substantial experience of operating these sections; the Mental Health Act Commission, among others, recognises the importance of shortening the time for an opinion.

My Lords, I have added my name to the amendment and wish to speak briefly in its support. The Government indicated that they were thinking in this direction in the 2004 Bill; this was welcomed by mental health services as an added safeguard. I strongly support the amendment.

My Lords, the amendment seeks to reduce from three months to 28 days the period for which a second-opinion appointed doctor must authorise the administering of medication when the patient does not consent or is incapable of consenting. We discussed the amendment in Committee. I said then that we believed the three-month period contained in Section 58 remains appropriate, and we have not been persuaded otherwise.

Where treatment is provided for under compulsion, it is essential that there are patient safeguards in place. We have those. The Act provides for some treatments where safeguards come into play immediately the treatment is proposed. ECT is one such treatment. Amendments Nos. 30 and 31 provide that consent will in future be required of any patient capable of giving it before ECT can be administered. It is also the case that a person cannot receive compulsory medication for their mental disorder unless their detention is supported by two doctors and an application made by, in the vast majority of cases, an approved mental health practitioner.

It is best if the certification for continuing with compulsory treatment be undertaken at a time when the efficacy of the proposed plan of treatments is understood. We do not depart from the argument I used in Committee. We should also consider the right time for the patient to be effectively involved in the process.

The noble Earl, Lord Howe, referred to the recent report of the Joint Committee on Human Rights, which might be described as rather tentatively expressing or questioning whether the Government are meeting their obligations under Article 8. Obviously we will consider that report, but it is our view that the ECHR does not require us to have second opinions at all. In our view, when the courts have addressed these matters, they have not taken the view that the provision breaches Article 8 or that three months is too long a period.

We have talked about Scotland a lot. The mental health legislation in force in Scotland prior to the current Scottish Act was essentially the same as our 1983 Act. In 2002, the Court of Session held it to provide adequate procedural safeguards in relation to the compulsory medication of patients within an initial three-month period and that it was not in contravention of Article 8. In addition, the High Court recently refused leave for a judicial review of the ECHR compatibility of Section 63 of the Act on the grounds that, inter alia, the three-month period is too long.

Bringing forward from three months to 28 days the time allowed for the involvement of a SOAD in cases where a patient refuses or is incapable of consent is not a simple act. It is not a matter of providing the same service but earlier, as I said in Committee. I understand what noble Lords have said about medication, but I think a three-month period provides an opportunity for the treating psychiatrist to reflect on the medications he proposes to continue to administer to the patient. Of course there are medications whose particular efficacy with an individual patient can be determined within 28 days—there is no doubt about that—but that will not always be the case. It is already the case that when the SOAD is asked to certify a relatively recent prescribed treatment, the efficacy of such treatment may not yet be known. The situation can arise because the current medication is a change from earlier but less effective medication, or because a patient is to be treated with a different type of medication addressing a different aspect of the patient’s condition. The shorter the period for involving a SOAD, the more likely it is that those circumstances will apply. That is likely to be a regular aspect of providing certificates at 28 days.

It could be routine that there would be insufficient evidence for the SOAD to certify with confidence that the proposed medication is the correct plan of treatment for the longer term, either because 28 days is not a long enough period for treatment with that particular medication or because the proposed medication has only recently been prescribed. The amendment would see many more instances where SOADs would set shorter periods for their certificate, requiring earlier review periods and follow-up SOAD visits. I do not see any value to patients in having a follow-up visit from a SOAD simply because the first visit took place too early in their treatment plan. Not all patients will welcome the visit of the SOAD.

I want to cover the issue raised by the noble Lord, Lord Patel, about our debate in Committee on the implications of this change for demands for SOADs and therefore on the psychiatric profession. It also concerns a point raised by the noble Lord, Lord Ramsbotham, in our earlier debate about the cost of this legislation. This is very relevant to that debate. Current practice is that the second-opinion doctor appointed by the MHAC has at least five years’ experience as a consultant psychiatrist. In 2005-06, 251 consultant psychiatrists were approved by the MHAC and made themselves available to be appointed to give second opinions as required by the Act. Obviously, that role is ancillary to their usual role as consultant psychiatrists, often with very busy caseloads of their own. I gave an initial estimate to the noble Baroness, Lady Murphy, on this, that a reduction to 28 days would result in further increases on consultant psychiatric time to the tune of approximately 20,000 hours in any one-year period.

I say to the noble Lord, Lord Patel, that it is not as much about the cost as the opportunity cost, in the sense of the time spent by psychiatrists and whether it is better spent acting as SOADs or providing direct psychiatric care. Clearly, that is a matter of judgment, but I ask the noble Lord to accept that my doubts about reducing the period from three months to 28 days are not based on a crude worry about the cost. However, I refer the noble Lord to the debates when I read the Statement about our first efforts to introduce legislation a long time ago. One of the great criticisms made of the original proposals was that many practitioners would be tied up in the statutory safeguards that were to be put in place. One cannot simply ignore the consequences of reducing the period from three months to 28 days.

It is also worth pointing out to noble Lords that we already have the power in the legislation; there is a regulating power to change the period of days. Given that this is amending legislation, that seems to be a perfectly satisfactory position for primary care legislation to have. It says it is three months, and there is the opportunity, if the time comes and if it is felt appropriate, to reduce that period. The Government strongly resist the amendment.

My Lords, I am naturally disappointed by that reply although I thank the Minister for responding so fully. Feelings run fairly high in the mental health community about this issue and I did not table the Committee amendment again lightly. The new ingredient in the pot since the Committee stage is, of course, the report by the Joint Committee on Human Rights. The Minister kindly undertook to look at that and I welcome his assurance.

There is provision in the 1983 Act to reduce the period of time before a second opinion is required, which indicates to me that the then Government had at least an ambition to bring that about; and, as we have heard, the Government themselves favoured a 28-day period in the 2004 draft Bill. I do not think we can ever afford to forget the potentially serious effect that some of these medications have on patients.

It may also be worth bearing in mind that in many of these cases the responsible clinician, once the Bill becomes an Act, may well be a nurse—someone who is not a doctor. There may be no doctor or psychiatrist involved until the SOAD provides his or her report. Those are real changes that will arise out of the Bill. I do not think that it is right for us to proceed as we have in the past and accept the three-month period as still necessarily the right one. Nevertheless, at this hour, it is right for us to move on. I shall reflect carefully on what the Minister said. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

14: After Clause 8, insert the following new Clause—

“CHAPTER 1A Treatment safeguards Capacitous patient’s right to refuse electroconvulsive therapy

( ) In section 58(3) of the 1983 Act (treatment requiring consent or a second opinion) after paragraph (b) insert “; or

(c) subject to section 58A (as inserted by section (Electro-convulsive therapy: children)), in the case of electroconvulsive therapy a registered medical practitioner appointed as aforesaid (not being the responsible medical officer) has certified in writing that the patient is not capable of understanding the nature, purpose and likely effects of that treatment but that, having regard in particular to the likelihood of its alleviating or preventing a deterioration of his condition it is necessary for the treatment to be given.””

The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 15 and 16 and address the government amendments in the group.

Your Lordships may wonder why I am speaking to the ECT amendments first. I do so because other noble Lords have decided that I am a fan of ECT. It is an inaccurate assessment of my view of ECT but, as I am one of the few people who have prescribed ECT on very rare occasions for elderly people, I am well aware of its problems. I am very keen that we should have greater safeguards and a recognition of the fear and the problems that have surrounded ECT. I believe that if ECT were no longer available it would not make a great deal of difference, but there are one or two instances where it needs to happen, and it is still a useful part of the armamentarium.

I am well aware that at this stage in our deliberations on Report Ministers may be in need of some supportive psychotherapy themselves. I am delighted to welcome the Government’s amendment on the capacitous refusal of ECT which cannot now be overridden for adults. The government amendments in response to our amendments tabled in Committee have gone further than I expected. They ensure not only that capacitous patients who refuse ECT cannot be forced to have it, but that the wishes of those who have said in an advance directive that they do not wish to have ECT in the future cannot be overridden. That sets a marvellous precedent. I am very grateful, as other noble Lords will be.

The issue of a second opinion for all young patients for whom ECT is proposed unfortunately has not been addressed. The 2004 draft Mental Health Bill would have introduced tribunal or court authorisation of ECT for all patients under 16, whether or not under formal powers. The amendment provides for a second opinion under the SOAD system for both formal and informal patients which goes some way to matching this safeguard.

The amendment also requires that either the young person's own doctor or the second-opinion appointed doctor is a child or adolescent practitioner. A similar amendment has been tabled in relation to the use of compulsory powers over young people to ensure specialist involvement specifically before treatment with ECT. In his response to the amendment in Committee, the noble Lord, Lord Hunt, indicated that for informal patients who have capacity and have consented to ECT, a statutory second opinion would mean a young person being interviewed and examined by a second doctor, whom they would probably not know. With such serious treatment it is essential for a young person to be subject to a second opinion, regardless of whether they are a formal or informal patient. Far from undermining a capacitous voluntary patient, provision for a second opinion on a treatment with such far-reaching consequences can be only a support to the young person and the clinician and offer them reassurance that the decision is in the best interests of the patient.

Due to the nature of the relationship between a young person and their clinician, the young person may find it difficult to voice their concerns. A second opinion will provide an automatic safety net where the young person is less likely to feel that they are undermining their relationship with their primary clinician. The young person will encounter a number of professionals they do not know while they are being treated. It is an unavoidable consequence of being a patient.

Young people should have the sort of safeguards that older people have, and their wishes should not be overridden by parental consent. The amendment allows for patients who are not capable to have treatment on the basis of a High Court order, as there may be occasions when parents may not want to make, or will not make, decisions in their children's best interests. We need to include greater safeguards for young people.

I would also like to address the issue of emergency ECT. Here again, we must ensure that capacitous patients do not have emergency ECT if they refuse to have it. As I said on a couple of previous occasions, I cannot envisage a clinical situation where Section 62 emergency treatment should ever be given to a patient who has capacity. Such treatment exists to treat profoundly depressed people who have usually stopped eating and drinking and who are seriously at risk of dehydration and death before the treatment takes effect. As the British Psychological Society has pointed out, evidence from Northwick Park studies shows that if a nurse can sit with that patient day in and day out over the course of a three or four-day weekend and get liquid into him one way or another through a drip and so forth, ECT can usually be avoided. But sometimes it is necessary. Sometimes the circumstances are not right and the patient may pull out the drip and refuse treatment. But I cannot understand how such a situation could arise with a patient who had full capacity. The nature of the illness is such that it would not happen. The amendment would provide safeguards for a capacitous patient not to be subjected to ECT without his consent, if it was outlawed as an emergency treatment. It would lead to better practice. There is nothing in this amendment that would not be welcomed by psychiatrists. It is certainly welcomed by the Mental Health Alliance. I beg to move.

My Lords, like the noble Baroness I very much welcome the government amendments, so it will seem rather churlish of me to complain that they do not go far enough—but I am afraid I do.

On the issue of urgent treatment, in Committee I raised some questions of interpretation over Section 62, which sets out the circumstances under which urgent treatment may be administered. This is defined as treatment which is,

“immediately necessary to save the patient's life; or.. which (not being irreversible) is immediately necessary to prevent a serious deterioration of his condition; or… which (not being irreversible or hazardous) is immediately necessary to alleviate serious suffering by the patient; or… which (not being irreversible or hazardous) is immediately necessary and represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to himself or to others”.

With regard to ECT, I ask the Minister to clarify the way in which this section should be read, bearing in mind that it is known that for some patients ECT is not only hazardous but can also result in irreversible side effects. I put it to him that the legal uncertainty over whether ECT is permissible as urgent treatment when the patient’s life was not at risk was most unsatisfactory. It is perhaps helpful to put part of the Minister’s reply to me on record. He wrote to me to say:

“Whilst I accept that there is some research that concludes that, for some people, their treatment with ECT has resulted in irreversible physical, cognitive and/or psychological side effects, there is no established consensus in psychiatry that this will happen—or is even likely to happen—with all patients or in all the circumstances that ECT is provided. For any given patient, a clinician could conclude that the patient’s treatment with ECT was not likely to have unfavourable irreversible physical or psychological consequences, and would not entail a significant physical hazard to the patient. Therefore the Government is of the view that it is possible if the right clinical conditions apply for the approved clinician in charge of the treatment of a patient subject to detention to treat that patient with ECT under the circumstances described at Section 62(1)(a), (b), (c) or (d)”.

While I was most grateful for that reply, I really do not understand it. Certainly the Minister is right to say that some patients benefit from ECT and do not suffer unacceptable adverse side effects as a result of it, but he will know that there is now a widely held consensus of views within the medical community about ECT that it is per se potentially hazardous and capable of having irreversible side effects. The point is that you cannot tell in advance which patient is likely to suffer unacceptable damage. You can make that assessment only ex post facto—at least, in most cases. Therefore, if it is true that as a general proposition ECT is now regarded as an inherently hazardous form of treatment, I do not see how it is possible for the Government to be comfortable in asserting the view that they have about the interpretation of Section 62.

It is in any event a worrying interpretation. Urgent treatment is authorised under Section 62 without the need for a second medical opinion, if a patient has refused consent, or when he lacks capacity to consent. I believe that this is one clear instance in which we in Parliament have to listen hard to what the clinicians are telling us. The noble Baroness, Lady Murphy, is one, and she has repeated what she said in Committee, that she,

“cannot envisage a scenario where a fully capacitated patient who was able to consent would fall into the need for urgent treatment”.—[Official Report, 15/1/07; col. 475.]

That view reflects the consensus of medical opinion to which I referred.

We need to remember, too, that ECT will hardly ever be the only emergency treatment available for a patient. In comparison with other treatment options and knowing what we do about it, it is really very difficult to imagine how it could ever be the emergency treatment of choice, especially in circumstances in which a patient’s life was not actually at risk. Therefore, I urge the Minister to look at this issue again.

In Amendments Nos. 30 and 31, the Government have implicitly accepted the case made in Committee about ECT—that it represents a uniquely invasive and distressing form of treatment. That acceptance now needs to be carried over into the provisions relating to urgent treatment.

I should like to add a couple of points of emphasis to what the noble Baroness said about ECT and children. I fully support Amendment No. 15. I believe that a unanimous view was expressed in Committee on this issue. Although ECT is rarely used on those under 18, it represents a particularly hazardous form of treatment for that age group. We now know that the adolescent brain is still changing and developing in its structure. Synaptic pruning, which is believed to be essential for fine-tuning of the functional networks of the brain, takes place throughout adolescence, as do changes to the frontal cortex, which are essential for such functions as response inhibition, emotional regulation, analysing problems and planning. NICE’s guidance on ECT almost certainly had these findings in mind in stating that the risks associated with ECT may be enhanced in children and young people.

It is worth pointing out that the amendment does not say that ECT should never be used on children or young persons. It allows for the kind of exceptional situation which many speakers in Committee acknowledged needed to be allowed for, when ECT may be deemed appropriate. But it would put in place what I and others believe are appropriate safeguards for this particularly vulnerable group of mental health patients, whether or not they are detained formally. I hope that the Minister will agree to think again about this.

My Lords, in some senses I shall repeat what the noble Earl, Lord Howe, has just said, but in a less erudite manner. We have before us a number of important amendments which in many respects overlap, at least in intention if not in words.

I am very grateful to the Government for producing Amendments Nos. 30 and 31, but if I had to choose I would be inclined to vote for Amendments Nos. 14, 15 and 16. I particularly welcome the inclusion of the test of therapeutic benefit in Amendments Nos. 14 and 15 and the special provision for patients under 18, including the requirement for the involvement of a clinician with special training in child and adolescent mental health. The discussions in Committee tipped the balance against the supposition that ECT for this age group should be banned, but its use requires stringent safeguards as provided in Amendment No. 15. Will the Minister reflect further on the overlapping nature of these amendments and produce a composite amendment at Third Reading that would take account of the very positive things contained in all of them?

My Lords, in our debate on ECT in Committee, I raised the question of what, if we are to outlaw the giving of ECT to capably refusing patients, would happen to those patients who currently receive the treatment under such circumstances. This is not an insignificant number of people; it is some hundreds of patients each year.

From the amendments before us, it seems that one way or another there are to be limitations on powers available to impose ECT in the face of a capable patient’s refusal. This does not, however, lead me to form a minority of one in this House and oppose both measures. My experience as chairman of the Mental Health Act Commission, the body which administers second opinions, tells me that clinicians, when considered as a body, do not measure capacity consistently or with anything approaching objectivity, even assuming that such measurement was possible. It is true that they can do quite well in agreeing in research situations, but I am not convinced that on the ground, for instance in assessing the capacity of those patients who have second opinions, they are all using the same yardstick.

Having listened to the debates on these issues so far, I have no fears that patients will suffer through being denied ECT on the technical grounds of their capacity status. I accept that a proportion of those patients currently deemed capacitated are probably not so in reality. I am concerned about how many more incapacitated patients we will see than before, and how much the notion of capacity will be measured in terms of the clinician’s wish to treat, but I do not see that concern as one that would make me oppose this measure. In fact, having a practical capacity threshold for ECT treatment may actually improve clinicians’ understanding and application of capacity testing. Let us see how it works out.

I am bound to say that, of the amendments before us, I prefer the construction of my noble friend Lady Murphy’s amendment for two reasons. First—and this touches on my concern over what will happen to those patients who are given ECT under the present law, despite having refused to give their consent—it is important to tighten the criteria for urgent treatment to stop such patients being suddenly reclassified as urgent cases and treated without the safeguard of a second opinion.

Secondly, I am disappointed that the Government’s amendment leaves out the safeguard of taking second opinions before any person under the age of 18 is given ECT. I support the amendment tabled by the noble Baroness, Lady Murphy, on these grounds. For this reason, I hope that Ministers will allow the noble Baroness, Lady Murphy, and her marshalled troops to push them that one or maybe even two steps further in providing safeguard