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Mental Health Bill [HL]

Volume 689: debated on Monday 26 February 2007

Further consideration of amendments on Report resumed.

Clause 28 [Consent to treatment]:

55: Clause 28, page 21, line 17, leave out “after “58(3)(b) above”” and insert “before “a report on””

The noble Lord said: My Lords, I shall also speak to Amendment No. 56. This is a technical amendment that rectifies an anomaly that the Bill would otherwise have created in respect of the duty of approved clinicians to report to the Mental Health Act Commission. Section 61(1) of the Act currently requires reports to be made to the commission when a patient’s detention is renewed, if the patient has been treated without consent in the previous period of detention under a certificate given by a SOAD under Part 4 of the Act. Clause 28, as currently drafted, would have imposed that duty in respect of recalled community patients, even if a certificate was not needed for their treatment. It is not necessary to impose a requirement to report in those circumstances. To do so would be out of kilter with the requirements applying to detained patients, and would impose a small but unnecessary additional burden on clinicians and the Mental Health Act Commission. The amendment will ensure that Section 61 of the Act remains properly targeted on treatment authorised by SOADs appointed by the commission. I beg to move.

My Lords, Amendments Nos. 56A and 58A relate to the authority for treating patients who are made subject to community treatment orders or returned to hospital under such an order. They would replace Clauses 28 and 29, which establish the Government’s proposals on these matters. My main concern about those proposals is illustrated by the professional slang that has started to be used to refer to second-opinion appointed doctors—commonly known as SOADs—in the context of their proposed role in relation to community patients. The new term is “super-SOADs”, from which we can infer that we are talking about a SOAD with special powers. The special powers in question are indeed remarkable, and include the ability to see into the future.

Under the Bill, at some point during an initial period of at least one month, a community patient will receive a visit from a SOAD. The SOAD will examine the patient and authorise whatever treatment he or she thinks is appropriate at the time according to criteria set out in the Act, but he will also be able to anticipate and authorise the treatments to be imposed on the patient should he or she be recalled to hospital. This, I suggest, is where the Bill requires a SOAD to be not only a psychiatrist but also a person with paranormal powers.

In short, it anticipates that a SOAD, whose role should be to safeguard against unnecessary or unsafe compulsory treatment, will authorise the forced application of medication in circumstances that he or she cannot foresee at some unpredictable point in the future. The SOAD can have no way of anticipating the circumstances whereby a community patient might be recalled to hospital or what physical or indeed mental condition that patient would be in upon such a recall. A patient who has developed dangerous and possibly irreversible side effects might have them worsened by the further imposition of medication on the authority of the SOAD. A patient with a heart condition might be killed by the imposition of medication authorised in good faith by the SOAD. Alternatively, the patient may have become pregnant, in which case some medications might be dangerous to her or her unborn child.

The Minister may argue that I am ignoring the obvious fact that the responsible clinician or whoever is involved in actually giving the treatment to the recalled patient will of course have a duty of care and will not endanger their health or life recklessly in these ways. But if the only safeguard against a SOAD’s authorisation being used recklessly in a context other than that in which it was given is the professional judgment of the treating doctor, or even nurse, we have negated the point of the SOAD role. It is important to preserve the role of the SOAD in considering what treatment should be given on the basis of the actual presentation of the patient at the time of their examination. This is the protection that SOADs can offer patients. The Minister may also argue that SOADs already authorise some treatments in advance of their being given, which of course is true, particularly with medication that is authorised on a ‘PRN’ or as-required basis; but they do so on the basis of the patient’s presentation and situation at the time of their visit, having examined the patient and consulted two other members of staff who have professional involvement with the patient’s care. The SOAD is not acting as if he or she can predict the future.

I should make it clear that I have an interest as chairman of the Mental Health Act Commission, which is responsible for the administration of second opinions. One of the commission’s roles is to appoint and train SOADs, and this means that it must provide advice on second-opinion procedure. The Mental Health Act Commission will be likely to advise SOADs to be extremely cautious when considering whether or not to authorise treatments to be given in an unforeseeable situation at an unidentified point in the future. Indeed, even putting the issue in this way makes me wonder whether the discretion that the Bill allows SOADs in this respect will actually be taken up by this body of responsible psychiatrists. I have to say that I hope it will not.

The Bill’s proposals for SOADs raise another ethical issue. According to the Bill and the draft code of practice, a SOAD who certifies that a community patient consents to treatment would also be enabled to certify what treatments can be imposed on the patient if he or she withdraws consent and is recalled to hospital. I realise that the possibility of coercion hangs over the heads of many psychiatric patients, but this truly is a sword of Damocles. At the very least it would appear to breach the principle underlying true consent as set out in the Mental Health Act code of practice, which at paragraph 15.13 states:

“Permission given under any unfair or undue pressure is not ‘consent’”.

This brings me to my alternative model, set out in these amendments. The key difference between my model and the Bill is that any certification of the treatment of a community patient cannot authorise treatment upon recall. This means that the forcible imposition of treatment to a recalled community patient would find authority only in the urgent treatment provisions set out in Section 62 unless and until a further second opinion is requested to consider treatment in the new context of detention.

The amendment would not extend the three-month rule. Under the Bill, the requirement for a certificate authorising treatment takes effect only after the CTO has been in place for at least one month, and may be longer. A patient discharged to a CTO during his three-month period as an in-patient would have to wait until all of the unspent part of the three months had run its course before having the safeguard of a second opinion. Indeed, when an in-patient’s three-month period is but a distant memory, if that patient is discharged on to a CTO he or she will be subject to a new one-month period where the safeguards over his or her treatment as an in-patient will be suspended. I think patients will perceive that to be simply unjust.

My alternative proposal, where the three-month period still has some time left to run when the CTO is made, is to require certification no later than one month from the start of that order. Therefore, if the three-month period had expired within the first month, it would not be extended at all. If it were extended for more than one month from the start of the CTO, it would expire exactly one month from the start of that order. For in-patients whose three-month period has expired at the point when a community treatment order is made, I would require certification from the start of the order. Let us remember that drug treatment in the community is inherently less safe than such treatment under 24-hour medical care in hospital. We should be increasing the safeguards for community patients, not lessening them.

To enable the certification from the start of CTOs, part of the preparation for discharging a patient on to a CTO would be for incapable patients to be visited by a SOAD, and for a capable patient to have a consent discussion with a clinician responsible for the treatment. It would be permissible to complete certificates prior to the patient’s discharge that would only take effect once they become a community patient. There is a precedent for that in the fact that all detained patients who are currently coming to the end of their three-month period will have Section 58 certificates completed for them, with such certificates taking effect only when the period has actually expired.

Such an approach seems to be both more of a safeguard for patients and more practical for the administration of the SOAD system. One of the great unknowns in the Government’s proposals is how the second-opinion system might work with community-based patients. My proposals would allow for many SOAD visits in relation to the new powers to be undertaken before the patient ceases to be resident in hospital. At the very least, such a system would ensure that we knew where the patients were when they were due to be examined by a SOAD. I have some concerns that under the Government’s proposals a great many clinicians would be faced with the dilemma of whether to recall a patient to hospital simply because they do not attend appointments to meet a SOAD.

Nothing in my proposed arrangements contradicts my objections to SOADs anticipating patients recalling their authorisations. Certification, as a part of the discharge package, would of course take place where a patient’s situation and mental or physical state were quite apparent to the certifying doctor.

My amendment would reduce the complexity of the Bill; it uses the existing framework of Section 58 as its basis. We have heard from the Minister many times during our debates about the limitations of an amending Bill, and that we are not writing new mental health legislation from scratch. In that spirit, I offer this amendment on the basis that it makes only the most necessary changes to the current statute to set out the effects of community treatment orders under Part 4 of the 1983 Act.

My amendments, in contrast to the Bill’s provisions, would result in simpler and more practical arrangements for authorising treatment in these circumstances. Moreover, they would preserve the role of the SOAD, they would be safer for patients and more acceptable in ethical terms for the professionals who operate the Act. I hope the Minister will give them full consideration.

My Lords, I am grateful to the noble Lord for allowing us to debate what is undoubtedly an important matter. However, the Government disagree with him.

I shall explain. When a patient on supervised community treatment is recalled, it will be because he needs treatment in hospital to avert a risk to himself or others. He may have failed to comply with the medication authorised in the certificate, and it is simply the lack of compliance that engenders a risk. In that case, the treatment he needs would be the same as he has been receiving in the community. Alternatively, the patient’s condition may have deteriorated to the point where some additional different treatment is needed to restore his stability. I am advised that it is possible to foresee the possibility that such deterioration might occur, and to determine what medication would be needed to deal with it. SOADs make that kind of assessment quite regularly when they authorise treatment to be given as required. That is simply the kind of judgment we are proposing clinicians might make when completing a Part 4A certificate.

It is interesting to note that, under the Mental Health Care and Treatment (Scotland) Act, which we have discussed on a number of occasions, it is possible to authorise treatment given on recall, just as we propose. I understand that this has caused no particular problems.

I should emphasise that a SOAD certificate provides an authority to administer medication. It is not a direction to do so. It remains for the treating clinician to decide whether it is right and proper to administer the treatment at any given time.

The amendment which seeks to replace the Part 4A certificate is potentially detrimental to getting patients the treatment they need quickly on recall to hospital. If a patient is recalled to hospital and they do not consent to that treatment or do not have the capacity to object in some way, they cannot be treated with medication unless it is an emergency. Under this amendment, a responsible clinician would have to wait until a SOAD could be organised before he could treat the patient. This might cause an unnecessary delay of days. It could be a common scenario and could result in a worse deal for patients. Delays in treatment are not in the best interests of patients and may mean that a patient has to spend longer in hospital because they cannot be treated quickly and return home.

We think the Bill achieves a pragmatic approach; it allows a patient to be treated quickly while benefiting from the safeguard of a second doctor review of that treatment. Recall to hospital is an event that everyone concerned will clearly hope to avoid, but it is available if needed, and it makes sense to plan for it. Planning in advance of the eventuality and setting out transparently what treatment could be given on recall is surely helpful to the patient and their family, with an opportunity for them to contribute to the decision.

We have had a discussion about the length of time before which a SOAD must certify the medication of a patient under the Mental Health Act. As we have had that debate, I will not return to it in this context.

My Lords, before the Minister sits down, perhaps he will help me. Am I right in believing that the doctors who will be judging the effects of non-compliance with regard to medication are the same doctors whom the Government believe cannot predict the therapeutic benefit of a treatment for a patient? That is a problem for me. There is a hole in the Government’s logic and expectations.

My Lords, if there is a hole in the Government’s logic, I guess there is one in the noble Baroness’s logic, too. She is trying to argue it both ways. It is a different scale of order in relation to treatability more generally and to medication. This is a safeguard for patients.

On Question, amendment agreed to.

56: Clause 28 , page 21, line 17, leave out “or section 62A below,” and insert “, or by virtue of section 62A below in accordance with a Part 4A certificate (within the meaning of that section),”

On Question, amendment agreed to.

My Lords, Amendment No. 56A has been discussed in the group with Amendment No. 55. It is up to the noble Lord, Lord Patel of Bradford, whether he chooses not to move it; but, as it is now in its correct place on the Order Paper, he is free to move it now if he wishes to debate it further.

56A: Clause 28 , leave out Clause 28 and insert the following new Clause—

“28 Authority to treat community patients

(1) In section 58(3) of the 1983 Act, after “patient” insert “who is liable to be detained under this Act”.

(2) After section 58(3) of the 1983 Act, insert—

“(3A) Subject to section 62A below, a community patient who has not been recalled to hospital shall not be given any form of treatment to which this section applies unless—

(a) he has consented to that treatment and either the approved clinician in charge of that treatment or a registered medical practitioner appointed for the purposes of this Part of this Act has certified in writing that the patient is capable of understanding its nature, purpose and likely effect and has consented to it; or (b) a registered medical practitioner appointed as aforesaid (not being the approved clinician in charge of the treatment in question) has certified in writing that— (i) the patient is not capable of understanding the nature, purpose or likely effects of that treatment; (ii) he has either no reason to believe that the patient objects to being given the treatment, or he does have reason to believe that patient so objects, but it is not necessary to use force against the patient in order to give the treatment; (iii) he is satisfied that the treatment does not conflict with a valid and applicable advance decision, or a decision made by a donee or deputy or the Court of Protection; and (iv) having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given. (3B) Where a patient who has been liable to detention under this Act has been administered medication for a mental disorder to which this section applies for less than three months prior to becoming a community patient, the period mentioned in section 58(1)(b) above shall be read to extend for no longer than one month beginning with the day on which the community treatment order is made.

(3C) The Secretary of State may by order vary the length of the period mentioned in subsection (3B) above.

(3D) Certification under subsection (3A) above may take place whilst a patient remains liable to be detained, but will not come into force until the responsible clinician discharges the patient from detention in hospital under the terms of section 17A(1) above.”

(3) After section 58(4) of the 1983 Act insert—

“(4A) Before giving a certificate under section 58(3A)(b) above, the registered medical practitioner shall consult two other persons, who have been professionally concerned with the patient’s treatment, but of those persons—

(a) at least one shall be a person who is not a registered medical practitioner; and (b) neither shall be the patient’s responsible clinician or the approved clinician in charge of the treatment in question.” (4) In section 61 of the 1983 Act (review of treatment)—

(a) in subsection (1) for “or 58(3)(b)” substitute “, 58(3)(b) or 58(3A)(b)”; (b) in subsection (1)(a) after “20(3)” insert “20A(4)”; (c) in subsection (3) for “responsible medical officer” substitute “approved clinician in charge of the treatment in question”; (d) in subsection (3), for “or 58(3)(b)” substitute “, 58(3)(b) or 58(3A)(b)”. (5) In section 64 of the 1983 Act (supplementary provisions for Part IV), after subsection (2) insert—

“(3) In this Part of this Act, references to “not capable of understanding the nature, purpose and likely effects of treatment” are to be read in accordance with the test established at section 3 of the Mental Capacity Act 2005.

(4) References to a donee are to a donee of a lasting power of attorney (within the meaning of section 9 of the Mental Capacity Act 2005) created by the patient, where the donee is acting within the scope of his authority and in accordance with that Act.

(5) References to a deputy are to a deputy appointed for the patient by the Court of Protection under section 16 of the Mental Capacity Act 2005, where the deputy is acting within the scope of his authority and in accordance with that Act.

(6) Reference to the responsible clinician shall be construed as a reference to the responsible clinician within the meaning of Part 2 of this Act.

(7) References to a hospital include a registered establishment.”

(6) In section 119 of the 1983 Act (practitioners approved for Part 4 and section 118)—

(a) in subsection (2)(a) leave out “in a registered establishment” and insert “in a hospital or registered establishment or any community patient in a hospital or establishment of any description or (if access is granted) other place”; (b) in subsection (2)(b) leave out “in that home” and insert “there”; (c) after subsection (2) insert— “(3) In this section, “establishment of any description” shall be construed in accordance with section 4(8) of the Care Standards Act 2000.” (7) In section 28 (Mental Health Act matters) of the Mental Capacity Act 2005 (c. 9), after subsection (1) insert—

“(1A) Section 5 does not apply to an act to which section 58(3A) of the Mental Health Act applies.””

The noble Lord said: My Lords, I do not wish to debate this amendment further, except to make some closing remarks. I am obviously disappointed by the Minister’s reply. It is doubtful whether any thoughtful clinician, especially when undertaking the role of a SOAD, would take advantage of the scope of powers presented to him or her under the Government’s proposals. I urge the Minister to set aside the question of whether professionals should be able prospectively to authorise treatment on a patient recalled to hospital and consider the relative merits of the proposed models in terms of patient protection and practicability of administration.

I hope that the Minister will think again and be willing to discuss this further with me and other noble Lords, perhaps bringing forward some appropriate amendments at Third Reading. I hope that this matter is raised again during the Bill’s proceedings here or in another place.

[Amendment No. 56A not moved.]

57: After Clause 28 , insert the following new Clause—

“Assessment of need for health and social care services

After section 1 of the 1983 Act, insert the following Part—

“PART 1A Assessment of needs for health and social care services 1A Assessment of needs for health and social care services

(1) Where—

(a) it appears to a local authority or a health authority that any person with a mental disorder for whom they may provide or arrange for the provision of community care services may be in need of any such services; or (b) it appears to a health authority that any person with a mental disorder may be in need of services which are commissioned by the health authority in respect of mentally disordered persons, the authority and the health authority shall carry out a joint assessment of his needs for those services; and having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services.

(2) Where a local authority or health authority receive a request for an assessment under subsection (1) above in writing by—

(a) the person with mental disorder; (b) the carer (as defined under section 1 of the Carers and Disabled Children Act 2000); (c) the person who is or who will be the nearest relative; or (d) an approved mental health professional, the authorities must comply with subsection (3) below.

(3) The requirement referred to in subsection (2) above is to give notice, before the expiry of the period of 14 days beginning with the day on which the request is received, to the person who made the request or whether the health authority and local authority intends to undertake the assessment; and if the intention is not to undertake the assessment, of the reason why that is the case.””

The noble Lord said: My Lords, this amendment, which relates to the assessment of need for health and social care services, derives from the mental health organisation, Rethink, of which I have been for a long time a supporter. Without prejudice to the question of whether this should be in the Bill, which is a key point, it is rather bizarre not to have an assessment of the need for services of a person with a mental disorder. Without it, how can the right decision on services be made? The logic of this amendment seems quite irrefutable.

I want to make three points only. First, this amendment covers local authorities and health authorities, which is an innovation; I do not think that it is in current legislation. The health authority should in our view also be covered. Secondly, this assessment could be a request from a number of people: the person himself; the carer—that is a very important point in public opinion—the nearest relative; or a mental health professional. Thirdly, this assessment is not an absolute requirement. It is clear from the text that the authorities can decide not to make an assessment, but if they do that they have to give reasons. It is a logical sequence.

I leave it to the Minister to say whether it should be in the Bill, but I hope that he will indicate that it seems reasonable as far as possible for local authorities and health authorities to make an assessment, which it should be open to a number of people to suggest. There should also be a clause to say that an assessment does not necessarily have to be made in every case. I beg to move.

My Lords, needless to say, I will speak extremely briefly. This amendment seeks to deal with the prejudice against those with mental health problems which is reflected throughout the NHS. If we look at NHS budgets, I believe it is true to say that some 30 per cent of patients suffer with mental health problems, but only 13 per cent of the NHS budget is devoted to people with those problems. It is argued that physical treatments cost a great deal more than mental health treatments, but that situation is very far from straightforward. A complex care bed in a psychiatric hospital, particularly in the private sector, can cost £250,000 a year. Of course, some people remain for that time or a good deal longer. A bed in an intensive care ward can cost £90,000 a year. How many physically ill patients have treatment regimes that cost anything like that amount?

The principal argument behind this amendment has been that a quarter of people seeking assessment and help with their mental health problems are turned away. The likelihood is that a good proportion of those people will finish up needing these very expensive in-patient psychiatric admissions. The reality is that within the mental health budget, funding is heavily focused on those services directly affected by the Mental Health Act—for example, special hospitals, medium secure units and intensive care units where detained patients tend to be looked after.

If someone really wants mental health services, believe me, they need to have a thorough-going psychiatric breakdown and get themselves detained under the Act. If you do not do that, you have not got much chance of anything like adequate care and treatment. I really do not believe that the Government want to be responsible for a service with that extreme imbalance in the allocation of resources. This amendment would over time encourage more resources to be focused on prevention. This would support the Government’s welfare reform strategy, of which the Minister is much more aware than probably any of the rest of us. Early assessment and evidence-based therapy would prevent people losing their jobs and help others back to work. This amendment would thus also help to fulfil the Government’s social inclusion agenda—all sorts of government agendas are being talked about in this very short debate.

I am sure that none of us supporting this amendment wants a section in the Act which would leave the Government open to endless litigation. This amendment avoids that problem and keeps the House within its legitimate boundaries by not requiring additional resources, so long as reasons are given for an inability to respond to a request. The aim would be, through increased awareness of need as a result of an assessment being done, that appropriate treatment would in time become available.

I hope that the Minister will give us some assurance that a way forward can be found to ensure that people suffering crippling mental health symptoms can be assured of an assessment, exactly as any patient with comparable physical symptoms could take for granted.

My Lords, this has been a short but important debate. The argument between us, if it is such, is that we believe that there are sufficient existing duties providing for the assessment of patients and the provision of services in legislative provision at the moment, which makes the amendment unnecessary. However, I fully accept that noble Lords have raised issues in relation to the provision of adequate assessment, which deserves every consideration.

The Government readily acknowledge that the issues that they have raised are real and that there are people who experience issues in accessing assessment and services. Noble Lords gave examples of problems in Committee and at this stage. Because we believe that existing statutory duties cover the point, the issue is how to ensure that statutory services ensure that the kind of problems that they have raised do not occur in practice. We have to build on the progress that we have made in recent years. The national service framework has laid the foundation for the kind of service that we want in mental health care. We have seen many more resources put in, with more people employed, and services such as assertive outreach, which we have discussed in the context of supervised community treatment. One hundred and nine early intervention teams have been formed, as well as 343 crisis intervention teams and 262 outreach teams.

I am not at all complacent. I realise that there is more to do and that, if the noble Baroness is right and there is no level playing field in practice between physical and mental services, we need to ensure that in statute there is a level playing field. The issue is how to ensure that there is one with regard to services on the ground. I am afraid—because I know that noble Lords may find this answer tedious—that we will not achieve that through legislation. We have to achieve it through determination to continue improvements to ensure that people do not slip through the net and that when assessment and services are needed they are provided. But there is no moving away from the hard graft that needs to be done on the ground to ensure that that happens.

My Lords, I thank the Minister for his reply. The issue is important and I am strengthened by the convincing arguments presented by my noble friend Lady Meacher, which I thought were very much to the point. I am grateful for the Minister’s acknowledgement of the importance of the issue and his determination to build on the progress that we have already made. Since he has promised us hard graft, I shall look to him for hard graft in future. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 29 [Authority to treat]:

58: Clause 29 , page 22, line 22, leave out “treatment falling within section 57 above” and insert “a form of treatment to which section 57 or 58A above applies”

On Question, amendment agreed to.

[Amendment No. 58A not moved.]

Clause 30 [Repeal of provisions for after-care under supervision]:

59: Clause 30 , leave out Clause 30

On Question, amendment agreed to.

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

“Referral to Secretary of State by hospital manager

After section 67 of the 1983 Act insert—

“67A Referral to Secretary of State by hospital manager

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

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

(3) Where the hospital manager reasonably believes that the patient lacks capacity and that there is no good reason why an application under subsection (1) above should not be made, he shall refer the patient’s case to the Secretary of State in order that he may consider whether to exercise his power under section 67 to refer the case of the patient to the Mental Health Review Tribunal.””

The noble Earl said: My Lords, the Minister will remember that in Committee I tabled a very similar amendment to this one. The point at issue is whether there should be an extra degree of protection in the Act for those mental health patients who lack capacity and who therefore do not exercise their right to appeal to the mental health review tribunal.

Every year there are about 45,000 detentions under Sections 2 and 3 of the Mental Health Act, which are the sections that enable a patient to make an immediate application to the mental health review tribunal. Yet it is extremely unlikely that any but a small minority of patients so detained have the capacity to make a tribunal application. For example, some of these patients will have learning difficulties that will have prevented them from understanding the nature and purpose of the tribunal. Others, by reason of their mental illness, will not have the capacity to apply for a tribunal because their depressive symptoms make them feel that there is no point in applying, or their delusional symptoms make them suspicious of the tribunal’s motives.

Just taking Section 2 detentions, we know that in 2004-05 Section 2 was used more than 21,000 times and there were just over 6,000 tribunal applications. Therefore, about 15,000 people detained under Section 2 did not apply for a tribunal. We cannot tell how many of those 15,000 lacked the mental ability or legal capacity to take a decision on whether to apply, but even if only 10 per cent fell into that category—and that has to be a modest assumption—1,500 referrals still could have taken place, and almost certainly should have taken place, but did not. Hospital managers have a legal duty to ensure that suitable cases, where patients lack capacity, are referred to the tribunal. It is clear that many are not properly complying with that obligation. That is a very serious situation.

When I raised this issue in Committee, the Minister said that she understood the point at issue, but she rejected the amendment on several grounds. In the first place, she reminded us that Section 68 already places a duty on hospital managers to refer a case to a tribunal where no application has been made in the first six months. Following this, adult patients are referred every three years, and children every year. She also pointed out that the Bill introduces the option to reduce these periods when resources allow. Her fear was that the amendment would lead to an immediate increase in tribunal referrals which may or may not be wanted by the patients concerned, and that it would force managers to assess capacity indiscriminately.

The Minister will see that I have changed the amendment so as to place a duty on hospital managers to make appropriate referrals not to the tribunal direct but to the Secretary of State, who can exercise her power under Section 67 to refer the case to the tribunal. I say to her that this formulation is not designed to change the law; it is designed to help NHS trusts not to fall foul of the law. The case of R(MH) v Secretary of State (2004) clearly showed that hospital managers have a duty to refer appropriate cases to the Secretary of State with a request that it be referred to the tribunal. The noble and learned Baroness, Lady Hale, concluded the case by saying that,

“every sensible effort should be made to enable the patient to exercise that right”,

to appeal to the MHRT,

“if there is reason to think that she would wish to do so”.

The duty under Section 68 to refer all cases for a tribunal hearing where no application has been made after six months really is not a sufficient safeguard for this particular group of vulnerable patients. That certainly is the conclusion one can legitimately draw from the judgment in the MH case. Yes, it is indeed likely that the amendment may lead to an increase in tribunal hearings. But why is that? It is because these patients are currently being denied access to the tribunal. That hardly places the Minister’s position on the moral high ground.

I agree with the Minister that hospital managers in general have no system to identify those detained patients who are incapable of applying to a tribunal; that is true. But the result of that is that many people are being denied the right to have their cases heard by a mental health review tribunal. There has been absolutely no guidance on this point from the Department of Health.

It would be very good if the Minister were able to take this problem on board and think about how it might be put right if an amendment such as this is not acceptable to her. I beg to move.

My Lords, I am very grateful to the noble Earl for introducing his amendment. My background briefing says that this is a very clever amendment, so I pay tribute to him for that. I, too, was struck by what the noble and learned Baroness, Lady Hale, said in responding to this. The critical part of what she said was about being practical and effective in what we did in terms of the amendment. I thought very carefully about the issue that the noble Earl has rightly raised. I reiterate what I said in Committee: I have no difficulty with the principle behind what the noble Earl is seeking to achieve; the discussion between us is how we get there.

There is a difficulty in placing this in the Bill, because we run into two possible problems. One is the inflexibility that primary legislation can offer us sometimes, which could be a difficulty. Secondly, I hope that the amendment is unnecessary, for two reasons. First, in the draft code of practice we have been very clear. It states:

“If the patient’s case has not already been considered by the MHRT—or a significant period has passed since that hearing—Hospital Managers should consider making a request as soon as the detention is extended. A failure to do so could result in a breach of the patient’s rights under the Human Rights Act 1998”.

That raises my second point, which is that under either the ECHR or the Human Rights Act we have very clear guidance and understanding in the public bodies that they have a right and a duty to comply with the Human Rights Act.

I am happy to commit to look again at the code of practice to see whether we can strengthen this aspect of it to address the reasonable concerns expressed by the noble Earl to make sure that this actually happens when it should happen. I hope that in so doing, although I am not committing to putting this in the Bill, I will be able to demonstrate as the Bill passes to another place that I have addressed the concern that is reasonably raised in the amendment. To do so would make sure that the combination of ECHR/Human Rights Act compliance and the requirements under the code of practice addresses the concerns that the noble Earl raises. On that basis, I hope that he is able to withdraw his amendment.

My Lords, I am very grateful to the Minister for that helpful and positive reply, and I accept her offer with gratitude. I am grateful to her for giving such serious thought to the proposals that I put forward. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 33 [Cross-border arrangements]:

61: Clause 33, page 32, line 40, at beginning insert—

“(1) At the end of section 17 of the 1983 Act (leave of absence) insert—

“(6) Subsection (7) below applies to a person who is granted leave by or by virtue of a provision—

(a) in force in Scotland, Northern Ireland, any of the Channel Islands or the Isle of Man; and (b) corresponding to subsection (1) above. (7) For the purpose of giving effect to a direction or condition imposed by virtue of a provision corresponding to subsection (3) above, the person may be conveyed to a place in, or kept in custody or detained at a place of safety in, England and Wales by a person authorised in that behalf by the direction or condition.”

(2) ”

On Question, amendment agreed to.

Schedule 5 [Cross-border arrangements]:

62: Schedule 5, page 70, line 21, leave out “Scotland or”

63: Schedule 5, page 70, line 26, leave out from beginning to “an” in line 27

64: Schedule 5, page 70, line 29, leave out “words “to Scotland or Northern Ireland”” and insert “following—

(a) the words “to Scotland or Northern Ireland”, (b) paragraph (a), and (c) in paragraph (b), the words “in Northern Ireland,”

65: Schedule 5, page 72, line 9, at end insert—

“19A (1) In section 146 (application to Scotland), omit the words from “88” to “138)”.

(2) This paragraph does not extend to Scotland.”

66: Schedule 5, page 72, line 19, leave out “after “section” insert “289,”” and insert “for “290” substitute “289, 290, 309, 309A””

On Question, amendments agreed to.

67: Before Clause 36, insert the following new Clause—

“Informal admission of patients aged 16 or 17

In section 131 of the 1983 Act (informal admission of patients), for subsection (2) substitute—

“(2) Subsections (3) and (4) below apply in the case of a patient aged 16 or 17 years who has capacity to consent to the making of such arrangements as are mentioned in subsection (1) above.

(3) If the patient consents to the making of the arrangements, they may be made, carried out and determined on the basis of that consent even though there are one or more persons who have parental responsibility for him.

(4) If the patient does not consent to the making of the arrangements, they may not be made, carried out or determined on the basis of the consent of a person who has parental responsibility for him.

(5) In this section—

(a) the reference to a patient who has capacity is to be read in accordance with the Mental Capacity Act 2005; and (b) “parental responsibility” has the same meaning as in the Children Act 1989.””

The noble Lord said: My Lords, in my response to the amendment on consent to treatment for 16 and 17 year-olds, tabled by the noble Earl, Lord Howe, I said that in view of what I had heard in Committee I would take it back and see whether the Government should table an amendment in this area. Amendments Nos. 67 and 94 are the result of the Government’s deliberations.

The amendments clarify the position of 16 and 17 year-olds who require treatment for mental disorder being admitted informally. Section 131(2) of the Mental Health Act 1983 at present provides that a 16 or 17 year-old who is capable of expressing his wishes may consent to being admitted even though there are persons with parental responsibility for him. The intention of the amendment is to make it clear that a 16 or 17 year-old may decide whether to be admitted, regardless of the fact that there is a person with parental responsibility for him. That builds on the approach taken in Section 131(2) of the 1983 Act and is consistent with the age range dealt with in the Family Law Reform Act 1969, which in Section 8 deals with consent by persons over 16 to surgical, medical and dental treatment. It is also consistent with the approach taken in the Mental Capacity Act 2005, which in general applies only to people of 16 years and over.

The amendment amends Section 131, so that patients aged 16 or 17 who have the capacity to consent to their admittance to a hospital or registered establishment for treatment for mental disorder can consent or not consent to such arrangements. If the patient consents to the making of arrangements, they can be informally admitted to hospital, and their consent cannot be over-ridden by a person with parental responsibility for them. If the patient does not consent to the making of the arrangements, they cannot be informally admitted on the basis of consent from a person with parental responsibility for them.

Practitioners must, of course, satisfy themselves that, where the patient appears to be consenting, he understands what he is consenting to and the consequences of that consent. Where the practitioner is not content that the consent is sound, they may not use the consent of a person with parental responsibility. The patient can be admitted to hospital for treatment under the Mental Health Act 1983 if they meet the relevant criteria. There is also, of course, the possibility of applying to the court for authority, but we would not expect that route to be used often where there is the statutory alternative of the Mental Health Act.

The repeal of a sub-paragraph in a schedule to the Children Act is pure housekeeping. The sub-paragraph inserted new text into the current Section 131(2) of the 1983 Act and requires repeal. The other amendment in my name in this group replaces that text.

In conclusion, I thought that the debate in Committee was very good. I was convinced by the arguments and have, therefore, brought forward these amendments. I beg to move.

My Lords, perhaps I may say how very much I welcome the amendment tabled by the Government, which undoubtedly goes a long way to address some of the concerns voiced in Committee about consent to treatment for minors.

Unfortunately, and at the risk of appearing to be a latter-day Oliver Twist asking for more, I wonder whether the amendment goes far enough. It could be said that it sets up an anomaly. If the amendment is made to the Bill in the form in which it has been tabled, the rights of a 16 or 17 year-old are protected, but those of a Gillick-competent child are not. That discrepancy is unsatisfactory and potentially confusing. Amendment No. 71, which stands in my name and that of other noble Lords, would provide an explicit statutory provision that those with parental responsibility could not over-ride the competent refusal of a child or young person for treatment for a mental disorder.

Perhaps I could briefly set out why this is an issue. It has commonly been accepted that the refusal of a Gillick-competent child or a mentally capable 16 or 17 year-old to accept medical treatment can be over-ridden by a person with parental responsibility for that child or young person. That principle was established in a 1992 case, In Re W. In the area of mental health, this led to uncertainty: should a professional rely on parental consent in the face of the child or young person refusing, or should he use the powers of compulsion under the Mental Health Act 1983? That uncertainty typically causes delay in making appropriate arrangements for the child or young person, which is highly unsatisfactory.

The Department of Health initially cited case law as giving greater autonomy to children and young people; the Minister referred to that in Committee. However, the case law in question, the Axon case, is not conclusive. It relates to the duty of confidentiality. It considered how medical professionals should deal with young people who are Gillick competent and want advice on sexual matters but who cannot be persuaded to inform their parents or to permit the medical professionals to inform their parents. It does not, therefore, address the issue of a competent child’s refusal of medical treatment. Indeed, the case of In Re W is not mentioned in Axon.

In Committee, the Minister referred to changes to the code of practice. In fact, the draft illustrative code of practice removes references to the refusal of a Gillick-competent child or a capable 16 or 17 year-old being over-ridden by a person with parental responsibility. However, it cites no case law to support that view, nor is there any explanation for the change in approach.

There is confusion here. The department’s 2001 guidance, Reference Guide to Consent for Examination or Treatment, refers to parental consent over-riding the refusal of a competent child or young person and suggests that this power should be used only rarely. But the guidance then states that,

“no definitive guidance has been given as to when it is appropriate to over-rule a competent young person’s refusal”.

So the cause for concern is not simply that there is a need for guidance in the form of a code of practice, or whatever, to resolve the confusion among practitioners; the amendment is needed because the current law is unclear. I believe that it can be made unambiguous only by including a provision on the face of the Bill. I hope that the Minister will agree to look at this issue very carefully.

My Lords, I support the noble Earl, Lord Howe, and thank the Minister for his letter to me explaining the position that he took at that time and for his change of heart. We very much welcome the amendment, although it does not quite go far enough. The concept of the Gillick-competent child is quite well understood. It works very well in relation to sexual advice. If you were dealing with a large number of children—in a school, for example—it might be practically difficult to use the concept of a Gillick-competent child in making decisions. The cases we are talking about involve individual children whom the professionals have had every opportunity to get to know and to assess whether they are competent to make the decision. In that situation, I suggest to the Minister that, practically speaking, it is very reasonable to ask the Government to include not just 16 and 17 year-olds but also those children who can demonstrate their competence to decide on these matters.

My Lords, I am grateful for the noble Baroness’s helpful comments. This is clearly a complex area.

I begin by saying that I should be very happy to institute discussions between now and further stages of the Bill. I give no commitment but it is important that there is an opportunity to discuss a complex area. I am happy to accept the invitation that noble Lords have given to enable that to happen.

The Family Law Reform Act provided that 16 should be the age at which the consent to treatment should be treated as though that person were an adult and the consent of a person with parental responsibility should not be required. The Mental Capacity Act, as I have already said, also provided that in general none of the measures in it would apply to persons under 16. The position of under-16s is more complex; there is likely to be far more variation. That is why our initial thinking is that guidance is able to go into much greater detail in this difficult area. That is our preference.

Where the child is Gillick-competent—that is, it is deemed that they understand what they are consenting to and the consequences of that consent—and the child consents, the draft code plainly says that he can be admitted informally on that basis. I reiterate for the noble Earl, Lord Howe, that that is very much a draft code and is work in progress. Comments made during the passage of this Bill will undoubtedly be fed into the code. Where a Gillick-competent child refuses, our guidance will state that it would be unwise to rely on the consent of a person with parental responsibility, and to detain a Gillick-competent child against his wishes might be in breach of Article 5 of the ECHR. The code will suggest that detention under the Mental Health Act should be considered, although again there is the possibility of an application to the court. But, for under-16s, every case will be different and depend on the specific facts of that case. That is why we think that it is right to leave under-16s to the code.

This is a developing area of law; that is why we think it better to put this guidance in the code. I accept what the noble Earl said about clarity in the law but the problem with the amendment is that it requires children to be treated as adults as a blanket rule; we think that for those under 16 every case will need to be looked at individually and had regard to a range of factors that will be explained in the guidance. For example, where the child is not Gillick-competent to make such a decision, if the decision falls within the zone of parental responsibility, a person with parental responsibility will be able to give consent and the child can be admitted informally on the basis of that consent. Guidance as to what is within what is known as the zone of parental responsibility will be given in the code. Again, this is a developing area, and we think it more helpful to give detailed advice in the code, which can be updated from time to time. It is, however, basically about the kind of decisions that our society thinks it proper for a person with parental responsibility to be able to take.

Where the child is not Gillick-competent and either it is not considered that the child could be admitted informally on the basis of the consent of a person with parental responsibility, or no person with parental responsibility is prepared to consent, consideration should be given to the use of compulsion or, occasionally, an application to the court. As I said, the Family Law Reform Act sets 16 as the benchmark for a young person to give consent to treatment as though he were an adult. We think that our approach is in line with that. I should be happy to enable further discussions to take place on this important matter but our default position is that, because of the complexity, we think that the code of practice is the best place to deal with it.

On Question, amendment agreed to.

68: Before Clause 36, insert the following new Clause—

“Places of safety

(1) The 1983 Act is amended as follows.

(2) In section 135 (warrant to search for and remove patients), after subsection (3) insert—

“(3A) A constable, an approved mental health professional or a person authorised by either of them for the purposes of this subsection may, before the end of the period of 72 hours mentioned in subsection (3) above, take a person detained in a place of safety under that subsection to one or more other places of safety.

(3B) A person taken to a place of safety under subsection (3A) above may be detained there for a period ending no later than the end of the period of 72 hours mentioned in subsection (3) above.”

(3) In section 136 (mentally disordered persons found in public places), after subsection (2) insert—

“(3) A constable, an approved mental health professional or a person authorised by either of them for the purposes of this subsection may, before the end of the period of 72 hours mentioned in subsection (2) above, take a person detained in a place of safety under that subsection to one or more other places of safety.

(4) A person taken to a place of a safety under subsection (3) above may be detained there for a purpose mentioned in subsection (2) above for a period ending no later than the end of the period of 72 hours mentioned in that subsection.””

The noble Lord said: My Lords, I beg to move formally.

My Lords, I apologise to the House. I am not used to moving amendments at the start of a group. No wonder the noble Lord, Lord Patel, and I got mixed up last time.

It may be helpful if I speak briefly to my amendment. The noble Earl, Lord Howe, and the noble Baroness, Lady Neuberger, may then like to speak to their amendment and I shall respond to that.

Amendment No. 68 is a response to some of the concerns raised in Committee. It would enable a person detained at a place of safety under either Sections 135 or 136 of the Act to be moved from one place of safety to another. I beg to move.

My Lords, I am extremely grateful to the Minister for having tabled the government amendment. It is most welcome and responds to the concerns expressed from around the Chamber in Committee that the law as it stands is inappropriately rigid. A permissive power to move a mentally disordered person from a police cell to another place of safety without necessarily waiting for 72 hours to elapse is a sensible and humane provision. However, perhaps I may bring us back to our Committee debates. I confess to a measure of disappointment that the Government have not felt able to pick up some of the other concerns that I and others raised on that occasion. The amendment in my name grouped here is designed to go somewhat further than Amendment No. 68.

Everyone agrees that a police cell is not a therapeutic environment for someone who may have reached a mental crisis point and may even be suicidal. It is simply, if you like, an expediency. I do not propose to repeat everything that I said in Committee, but putting someone in a police cell when they are in an excited or depressed state of mind is neither good for the person nor fair on the police. We have to recognise that police cells should be available as a last resort, but that is not what the Act says. It places police cells on an equal footing with other places of safety as though all had equal validity. Amendment No. 69A therefore says that a police cell should be used only if it is impracticable to use a therapeutic environment. It also proposes that the period of 72 hours allowed for in the Act for someone with mental health problems to be detained by the police is too long and that it should be reduced to 24 hours.

I still think that the case for making this change is extremely strong, and it is supported fully by the Police Federation and the Independent Police Complaints Commission. In fact, new research from the IPCC shows that the average amount of time that those detained under Section 136 are held in custody is 10 hours. The vast majority of detainees—95 per cent, in fact—leave police custody after 18 hours. That suggests very strongly that making an amendment to the Act to reduce the maximum period of police custody to 24 hours would not represent an unduly onerous requirement. Indeed, it is fair to say that it is only the absence of suitably trained specialist staff to carry out assessments that prevents police in some areas of the country discharging mentally disordered detainees even more quickly. With that thought in mind, the amendment would also put in the Act a duty to ensure that, where someone is detained in a cell, he must be assessed by mental health professionals or transferred to a psychiatric hospital within the shortest possible time.

I realise that the Minister is unlikely to warm to the amendment or at least to the parts of it that do not chime in with Amendment No. 68. In view of the widespread concerns expressed on these issues, both from the police and the mental health community, I ask him whether he will agree once more to take these various points away with him and give them further thought. If he cannot agree to the amendment, it would be extremely welcome if the Minister were able to give a commitment to monitor the use of police cells as places of safety and publish the figures regularly. At least that would help to establish the extent of the problem and the particular areas in which police cells are over-used. At the moment, there are no official national statistics or monitoring of the use of police stations as places of safety.

I understand that the Police Federation does not believe that that would be an unnecessary administrative burden. Most police authorities already have a computer system that allows them to log in when a patient is brought in under Section 136. However, according to the IPCC research, currently there are wide variations in the way in which that data are recorded, which makes it difficult to establish accurate numbers of people detained in police cells.

My Lords, I seem to be forever destined to disappoint the noble Earl, Lord Howe, even when I bring forward government amendments in response to issues that he raised at previous stages of the Bill. Of course, I recognise that there is a great deal of concern about the use of police cells for the detention of mentally ill people. As I said in Committee, I accept that a police station is not an ideal place in which to detain such a person. I also accept that 72 hours may seem to some people to be a long time. It should be borne in mind that that is an upper limit. Recently published emerging evidence from a study being undertaken by the Independent Police Complaints Commission suggests that the average amount of time in police custody under Section 136 is 10 hours and that the majority of detainees leave police custody within 18 hours. That is reassuring, although from this evidence it is clear that some people need to be detained for longer than 24 hours.

I well understand why the noble Earl has returned to this matter, but there are some issues of practicality. For example, in the case of a person removed from a public place, it would require the police and local agencies to try to identify an appropriate place of safety other than a police station. If none is available, it would be necessary to convey the person to a police station and to arrange for the person to be examined and interviewed urgently at the police station. If that is not possible, it would be necessary to transfer him to another place of safety and to arrange for him to be interviewed and examined there.

It may not be possible to do all that within 24 hours. As I said in Committee, I do not think that imposing statutory restrictions is the way to address the concerns of the noble Earl. The right way forward is to try to limit the use of police stations by facilitating good practice. The Government are allocating a considerable amount of money to the NHS in England to improve the NHS estate and £130 million is being made available this year and next year. That money will help to facilitate an increase in hospital-based places of safety and improvement in existing facilities. Therefore, it will help to reduce reliance on police stations.

I also re-emphasise that we are planning to reinforce our approach to encouraging good practice by strengthening the guidance in the new code of practice for England along the lines of the noble Earl's amendment. The current code states that police stations should not generally be used. In the revised version of the code, we intend to stress that police stations should be used only as a last resort; for example, only if nowhere more suitable is immediately available and even then only if such use is compatible with local agreements on the use of places of safety. We also intend to stress in the revised code that assessment should be completed as soon as possible. Of course, we shall consult widely on that. I understand that similar arrangements will be made for the code of practice in Wales.

There is clearly more that we can do. The amendments that I have tabled also deal with an issue that was raised in Committee—a very good issue—and we now amend the Bill so that patients can be moved from one place of safety to another. Clearly, it is not appropriate for vulnerable, mentally ill people to have to remain at, say, a police station, so that a doctor and an approved mental health professional can assess and interview when a more suitable setting is available.

On monitoring and the views of the Police Federation, my right honourable friend Mrs Rosie Winterton, the Minister responsible, recently met with representatives of the federation. There was a good, useful and constructive discussion. We are not convinced that there is a need to require the Home Secretary to monitor and report on the use of police stations as a place of safety. However, I shall take the more general issue of monitoring back to see what can be done. As the noble Earl will know, we intend to create a new single regulator in England to replace the Mental Health Act Commission, the Healthcare Commission and the Commission for Social Care Inspection. We will want to look at monitoring responsibility. In that context, I certainly undertake to look at the issues that the noble Earl has raised.

My Lords, before the Minister sits down, I should say that I am by no means unappreciative of the government amendment. Nor am I unappreciative of the proposal he just kindly just made, which I welcome.

On Question, amendment agreed to.

[Amendment No. 69 had been withdrawn from the Marshalled List.]

[Amendment No. 69A not moved.]

70: Before Clause 36, insert the following new Clause—

“Offence of ill-treatment: increase in maximum penalty on conviction on indictment

In section 127 of the 1983 Act (ill-treatment or wilful neglect of patients), in subsection (3)(b), for “two years” substitute “five years”.”

The noble Baroness said: My Lords, the amendment is similar to the one tabled in Committee. I shall not repeat the arguments. It merely brings the statute up to date. As I remarked in Committee, I do not think anybody has been prosecuted under this legislation, but I have discovered that there was a case prosecuted under an identical clause in the 1959 Act, Pountney v Griffiths in 1975, that went to the Appeal Court. It may be used at some time, and seems to send an appropriate signal to patients and carers that this is a serious matter. I beg to move.

My Lords, I welcome the amendment of the noble Baroness, Lady Murphy. As she says, although it may not have been used, the fact that the amendment raises the offences seems an important signal. The Government are glad to support it.

My Lords, I am very grateful to the Minister indeed.

On Question, amendment agreed to.

[Amendment No. 71 not moved.]

71A: Before Clause 36, insert the following new Clause—

“Use of seclusion and other forms of behaviour management

After section 142 of the 1983 Mental Health Act insert—

“142A Use of seclusion and other forms of behaviour management

(1) This section applies to the use of seclusion, mechanical restraint or other interventions to manage disturbed behaviour as may be specified for the purposes of this section by regulations made by the Secretary of State.

(2) For the purposes of this Act, “seclusion” means the supervised confinement of a patient in a room, which may be locked to protect others from significant harm.

(3) A patient shall not be subject to any form of intervention to which this section applies, except in accordance with regulations.

(4) The Secretary of State shall make regulations prescribing—

(a) circumstances under which any form of intervention to which this section applies may be used; (b) reporting requirements on the use of any such intervention; (c) review and scrutiny of the use of such interventions; and (d) circumstances under which patients subject to such interventions must be visited by persons authorised by the Commission. (5) Before making any regulations for the purposes of this section, the Secretary of State shall consult such bodies as appear to him to be concerned.””

The noble Baroness said: My Lords, the amendment has been introduced late in the passage of the Bill due to the report of the Joint Committee on Human Rights. Other noble Lords around the House will be quite aware of that.

The JCHR recommended:

“We urge the Government to ensure that, whatever method of regulation is adopted, sufficient safeguards are included on the face of the bill to ensure that seclusion is only used when strictly necessary and that individuals subject to it should have access to review at intervals to ensure that it is brought to an end when no longer necessary”.

The amendment deals with seclusion and regulates its use and other methods of managing disturbed behaviour to provide greater safeguards to patients subjected to such interventions. The Joint Committee on Human Rights identified the lack of regulation in the Act as an omission. The House of Lords held, in R (Munjaz) v Mersey Care NHS Trust and Others, concerning the introduction of a written policy governing the seclusion of patients at Ashworth Hospital that diverged considerably from the framework in the code of practice on the frequency of review, that,

“hospitals are free to depart from the Code if they have a good reason for doing so”.

Given the recommendations of the JCHR and the absence of reassurances about the status of the code of practice, we thought it appropriate to debate the regulations of seclusion even at this stage of the Bill.

Seclusion is defined in the code of practice on the Mental Health Act 1983 as,

“the supervised confinement of a patient in a room, which may be locked to protect others from significant harm. Its sole aim is to contain severely disturbed behaviour which is likely to cause harm to others”.

The definition in this amendment is based on that. The code also specifies that:

“Seclusion should be used … as a last resort … for the shortest possible time”.

It,

“should not be used; as a punishment or threat … as part of a treatment programme … because of shortage of staff”,

or,

“where there is … risk of suicide or self-harm”.

I think that the Mental Health Act Commission may have proposed a slightly different amendment to guidance on the latter point.

It may be necessary to have a fuller description in regulations or the code of practice to ensure that all practices that amount to seclusion are indeed covered. In its latest biennial report, the Mental Health Act Commission sets out various terms used to describe a range of practices that still amount to seclusion. These include therapeutic isolation, single-person wards, enforced segregation, and restriction of movement. The quality of care provided under these circumstances can vary widely, from the very good to the dangerously substandard. The Department of Health has also referred to different kinds of nursing and accommodation that is separate from other patients as “alternatives to seclusion”. Again, that may undermine regulation of these practices. This amendment deliberately uses the language of managing behaviour to differentiate these interventions from clinical or therapeutic interventions; I cannot state too clearly or strongly that they are not.

There is some considerable prevalence of seclusion being used in the mental health system. The Mental Health Act Commission’s own census found that 3 per cent of all psychiatric in-patients resident on 31 March 2005 had experienced one or more episodes of seclusion in their period of admission or in the previous three months, 112 patients had experienced at least five periods, and 42 at least 10. The maximum number was over 100, and there were particularly high rates for black patients. Here is an issue that ought, yet again, to ring alarm bells with all of us; it seems to be overused for black people and those from minority-ethnic communities. It appears that this could be an area where the use of seclusion—if it is to happen at all—is overly strong with some communities rather than others.

Over six months in 2004-05, the Mental Health Act Commission collected data on episodes of patients being held in isolation for 48 hours or more. It was notified of 74 episodes in the acute sector and 156 in the medium or high secure sector. Many were for much longer periods, and many were not described as seclusion. The Healthcare Commission’s recent audit of psychiatric units found about one-third saying that they used seclusion at some point or other.

Numerous aspects of seclusion may lead to patients’ rights being infringed. The grounds for using seclusion could be punishment rather than treatment. There could be conditions in which people were accommodated without a toilet or any washing facilities—people can be cared for really badly during seclusion—or issues about how seclusion is brought to an end. For instance, there are examples of staff requiring the patient to “show remorse”, or all sorts of issues in how complaints about using seclusion are dealt with. All these areas could be addressed by the review and by the visiting requirements envisaged in regulations.

This amendment simply proposes that the Act sets the scope for regulations with which the use of seclusion, and any other interventions added to the clause, must comply. Those would define: the circumstances in which the measures could be used; reporting requirements; review and scrutiny; visiting issues; and, if there are people who are subject to prolonged or repeated seclusion, making sure that they are visited by an independent person who can protect their rights. These regulations would set limits on the use of seclusion and provide procedural safeguards to check whether people in this extremely powerless set of circumstances were being treated in accordance with the code of practice. As this is such an important and difficult area, we believe that there has to be consultation on any regulations before they are laid.

Finally, in addition to the recent Joint Committee on Human Rights report, the Joint Committee on the draft Mental Health Bill recommended that the Bill regulate the use of seclusion and mechanical restraint by requiring the same kind of safeguards provided in the current code of practice to ensure that decisions to seclude or restrain are made only when absolutely necessary, are subject to regular monitoring and review, and that the seclusion or restraint is brought to end immediately the intervention is no longer needed for the protection of others. There should be a requirement to report such interventions to the Mental Health Act Commission and, if seclusion or restraint is prolonged, a member of the expert panel should visit the patients. The Government agreed with the Joint Committee on the draft Mental Health Bill about this when that draft Bill was still current and they agreed that similar safeguards should continue in this Bill. They also shared the concerns about prolonged seclusion and restraint and were exploring how best to safeguard patients’ interests in the context of the new legislation. According to the Mental Health Act Commission, the Government were considering using the mechanisms then being proposed in the Mental Health Bill that were concerned with medical treatment.

We were all delighted that the Government were interested in regulating seclusion, but we are concerned that, given the legislation now before us, it no longer appears to be on the Government’s agenda and similar mechanisms to those governing treatments are being considered. Seclusion is a means of containing violent behaviour, but it is not a treatment. Confusing the two functions could have the effect of legitimising seclusion for other purposes and weakening any safeguards by giving scope for clinical discretion. We believe that this is a golden opportunity for the Government to fulfil their earlier intention to commit to a form of regulation and to work out, in consultation, the best way of doing it. I beg to move.

My Lords, I am grateful to the noble Baronesses, Lady Neuberger and Lady Barker, for raising this issue following the Joint Committee’s recommendation. I agree with the general thrust of this amendment, and I hope that serious consideration will be given to it. I certainly believe that there should be regulation of the use of seclusion.

As the noble Baroness said, the Mental Health Act Commission, of which I am the chairman, called for this in several of its reports, including the most recent, the 11th biennial report. That was published before the abandonment of the draft Bill of 2004, in which the Government, rather to the horror of the Mental Health Act Commission, proposed regulation of a sort using the mechanisms of Part 4 of the Act. The Minister may have read the discussion of seclusion in chapter 4 of the commission’s report, but if not, I hope that he will do so, paying particular attention to the section entitled “The Perils of Medicalisation”.

I am pleased that this amendment refers to the management of disturbed behaviour rather than to its treatment. Let us not fall into the trap of assuming that these are simply matters for clinical discretion, but recognise that they engage rather wider issues of keeping order within hospitals. I note that this amendment prescribes the circumstances in which seclusion or other types of serious restraint may be used. I sense that the response from the Minister may be that it could be dangerous to fetter services in such ways, but I hope that such arguments will not close off deeper consideration of how such regulations might be formed.

While we must not establish quasi-clinical criteria for the act of isolating a patient from others, it does not seem impossible to me that we could have regulations that set out what seclusion can and cannot be for, rather in the way that Section 62 sets out when certain treatments can and cannot be given. Just as importantly, we need a statutory definition of seclusion that will prevent services claiming never to seclude a patient when all they really do is operate seclusion under some euphemistic term. If we can prevent hospitals euphemising seclusion away, we should certainly require them to keep records of the practice that would be available to monitoring bodies and their own internal auditing procedures. This amendment provides regulatory powers to enable all these things.

The Minister’s brief on this amendment no doubt suggests that he should repeat the mantra that these matters are appropriate for a code of practice, not statute. I hope that he will pause before doing so and reflect upon the point raised by the noble Baroness, Lady Neuberger, about the way in which the code’s guidance on seclusion was at the centre of the judicial ruling in Munjaz. That ruling effectively tells services that they can write their own codes of practice on seclusion so long as they do nothing in breach of the European convention. It is a shame that the Department of Health, although nominally the co-sponsor of the code, argued in submissions to the court that services should be free to disregard it.

We have not yet finished debating the status of the code and I will not pre-empt that discussion, but I ask the Minister to remember that services already have guidance on seclusion in a code of practice that many of them do not follow, and which some of them openly disregard. Just as the dissenting judgment of the noble and learned Lord, Lord Steyn, in Munjaz warned of a free-for-all, the use of the code in this area has led to something of a Wild West in practice. The Mental Health Act Commission cannot even collect meaningful seclusion data across the high-security sector because hospitals—or rather one in particular, Ashworth Hospital—operate incompatible, or at least incomparable, systems of seclusion. Patients transferred from one hospital to another, not just in the high-security sector, may now find arbitrary differences in how hospital regimes operate seclusion, despite the European convention requirement for transparency and predictability in matters that potentially engage the rights that it establishes.

I suggest to the Minister that this is not good enough, and that more stringent regulation is needed.

My Lords, I am grateful to noble Lords. I certainly do not want to close down the options for discussion and I am sorry if my applause for the code is seen as a mantra. It is important. We have debated—no doubt, later this evening we shall further debate—the code of practice, but the two go very much together. There are very good reasons why some matters are left to the code and are not in legislation or regulations.

Essentially, we think it unnecessary and undesirably inflexible to regulate seclusion, restraint and other similar interventions in the way proposed by the amendment. It is true that the amendment leaves the details to regulations, which is certainly preferable to trying to codify rules in primary legislation, but we still foresee difficulties finding sufficiently clear definitions for regulations. Such definitions should not, on the one hand, encroach on what may be thought of as routine clinical interventions, rather than crisis responses. On the other hand, I very much agree that we should not encourage people to use less appropriate techniques to avoid the bureaucracy of the regulations—the risk of the perverse incentive—or because what they believe to be the best in the circumstances is not permitted.

There is genuine concern that we may unwittingly restrict staff to a limited range of techniques that do not sufficiently recognise the huge variety of scenarios that they may face. Any kind of restrictive regulation invariably runs the risk of inhibiting new innovative techniques for managing difficult behaviour.

We accept that there is variation in the use of seclusion and restraint, not all of which represents genuine differences in need. I have no doubt that there are places where practice can be improved. However, we must be wary of defining what hospital staff may or may not do either as part of routine clinical care or as an immediate response to dangerous situations. It is worth remarking on the issue of violence towards NHS staff. A programme is being broadcast at this very moment about it. We need to recognise the situations in which staff find themselves. We have to pay regard to their interests in these matters.

Currently we address such issues through guidance to practitioners in the code of practice. The code currently states that hospital managers should have clear written policies on the use of physical and other forms of restraint. Physical restraint should take place only as a last resort, not routinely. Any restraint should also be reasonable in the circumstances, apply the minimum force necessary to prevent harm to the patient or others, be for only as long as necessary and be sensitive to gender and race issues.

In preparing the draft illustrative code of practice, I have remained very aware of the deliberations in the Joint Committee on Human Rights and our evidence to it, which concluded that the most appropriate approach to this practice issue is to provide for it through guidance in the code of practice. That remains our position. In preparing the draft illustrative code of practice to accompany the Bill, we revisited and updated the guidance on seclusion and restraint. It will be further developed in the new code to be issued for consultation. I understand that the Assembly Government intend to make a similar provision in the code of practice for Wales. The draft illustrative code of practice reflects the NIMHE 2004 guidance, the Mental Health Policy Implementation Guide. It also advises that the NICE guidelines are also adhered to. The NICE guidelines address the management of aggression and violence, including restraint.

The use of seclusion and restraint is often a clinical judgment. Its use should be informed by detailed professional guidance of the sort to which I have just referred. The code of practice provides that such guidance is brought to the attention of practitioners and service providers. We need to be clear about the observation of the Appellate Committee of this House that the requirement that cogent reasons be shown for any departure from the code sets a high standard that is not easily satisfied. We must be clear about that, although I realise that we will probably discuss this a little later on.

Section 120 of the Act already enables the Mental Health Act Commission at any reasonable time to visit and interview any detained patient and to inspect any records relating to the detention or treatment of that patient. I know that there are concerns that young men from some black and minority-ethnic groups are over-represented in the use of seclusion and restraint. I understand those concerns: we all have general concerns about how a group of people is treated in the current services. I understand that the 2006 census will show less emphasis in relation to that figure. I must be careful not to speculate, but one can only hope that some of the current publicity and the advice and guidance are beginning to have an impact on service provision and practice activities in the services.

We will keep the operation of the Act under review, and we will look for comprehensive information on how it is used, which will help us to monitor better what is happening. Again, as I said about places of safety, when the new combined regulator for health and social care is formed, we will consider how information on the use of seclusion may be reported to the new regulator. I do not seek to undermine anything that the noble Baroness and the noble Lord have said about this. We simply think that it is better to deal with this in the code.

My Lords, I am extremely grateful to the Minister for his reply, although I am not wholly content with it. He is obviously not entirely surprised to hear that, either. Let me say just a few things. First, given the very clear recommendation from the Joint Committee on Human Rights, when it said:

“We urge the Government to ensure that, whatever method of regulation is adopted, sufficient safeguards are included on the face of the bill”,

it is extraordinary for the Government to say yet again that they think that this is better dealt with in the code of practice. I find that really quite worrying, because to some extent they are simply not listening. However, we have heard about the code of practice and will come to that later.

Secondly, I fully accept that the guidance on seclusion is the NICE and the NIMHE guidance. I do not think that anyone has any particular quarrel with that, except that what the Minister said to me about wanting to leave it to clinical judgment has come up time and time again. This is not an area that one would normally expect to leave to clinical judgment, because it has nothing to do with treatment: it is being used simply to protect others from significant harm. That is very different from the normal use of clinical judgment in a treatment decision. This is an important point, which the Minister did not pick up. All noble Lords around the House are very concerned about attacks on NHS staff, but it is precisely because seclusion is used to protect others from significant harm that you want to be very clear about where it should be used—to protect staff and others from harm.

Given the lateness of the hour, and having voiced some of my objections to some of what the Minister has said, I beg leave to withdraw the amendment. I shall take this away and consider how we might come back, even at the very latest stage of the Bill—at Third Reading.

Amendment, by leave, withdrawn.

[Amendment No. 72 not moved.]

72A: After Clause 38 , insert the following new Clause—

“Local arrangements for assessment, conveyance and admission

(1) The 1983 Act is amended as follows.

(2) For section 140 substitute—

“140 Local arrangements for assessment, conveyance and admission

(1) It shall be the duty of every Primary Care Trust, in conjunction with—

(a) the NHS trusts contracted to provide in-patient mental health services and ambulance services within its area; (b) the police authority or authorities within its area; and (c) the local social services authority or authorities within its area, to prepare, publish and maintain up-to-date a comprehensive scheme for the safe, timely and effective management of the cases of patients within its area who may require urgent admission to hospital for treatment for mental disorder, whether under this Act or otherwise.

(2) This scheme shall include details of—

(a) the arrangements for the assessment of urgent cases and for ensuring the safety of the patient, carers, those carrying out the assessment and any other persons present during the assessment; (b) the arrangements for obtaining a bed, if required, and the criteria for determining the relative priority of urgent cases awaiting admission; (c) the arrangements for ensuring safe custody and conveyance of patients who need to be admitted to hospital under section 6(1) of this Act; and (d) agreed time-limits for response by the bodies listed in subsection (1)(a) to (c) above in cases of urgency where there is a serious risk to the safety of the patient or others.””

The noble Baroness said: My Lords, I shall also speak to Amendment No. 72B. These amendments are strongly supported by the British Association of Social Workers. The first amendment seeks to ensure that the responsible organisations, the primary care trusts and others prepare and maintain a scheme to deal quickly and efficiently with patients detained under the Mental Health Act who therefore urgently need an in-patient hospital bed. The amendments set out the arrangements for ensuring the safety of the patient, carers and professionals present during the assessment, arrangements for obtaining a hospital bed and arrangements for ensuring the safe custody and conveyance of the patient.

Why is this amendment important? At present, the only individual with a statutory responsibility for a person’s safety and welfare, once that person has been formally assessed as liable to be detained, is the approved social worker in person. That personal responsibility continues until the patient is admitted on to a hospital ward. Frequently, it is unsafe to transport a newly detained patient without the police and an ambulance, but last year a survey by the Association of Directors of Social Services into the ASW service found that nearly 60 per cent of local areas reported problems with accessing police and ambulance support. This level of problems occurs despite the fact that for a number of years the code of practice has made it a requirement on local social services authorities to have policies with police and ambulance services covering access to support. I understand that the British Association of Social Workers is in discussion with the department about whether the problems can be dealt with by the code of practice rather than through these amendments. The experience to date, I have to say, is not encouraging.

Amendment No. 72A seeks to place the ultimate responsibility for conveying the patient to hospital upon the health trust responsible for providing the treatment to a detainee. The approved social worker or approved mental health practitioner under the new Bill would continue to undertake the duties of assessment, application for detention and conveyance to hospital, but would be conveying on the trust’s behalf. The important thing here is that in extremis the AMHP should be able to call upon the trust’s director on duty to make sure that a bed is available for a detained person. Certainly I am conscious of that in my trust. I know that if an ASW phoned our director on duty, something would happen quickly.

I could give lots of examples of the problems faced by individual social workers, but I shall cite just one. Due to the threats of an individual to his family members and their very real fears for their own safety, and the fact that his mental state was causing concern, a consultant asked for an urgent ASW assessment. This service user happened to be a martial arts expert, which was a little unfortunate. The police refused to help. The ASW was therefore sent into the house armed with nothing more than a mobile phone with 999 programmed into it. Things got out of hand and she had to call the police urgently. Thankfully, all the response cars in the county turned up, so the person was safe. However, had the police responded at the start, perhaps a couple of officers might have contained the situation.

The availability of ambulances in these crises also varies considerably across the country, and again if no ambulance comes, perhaps the police will not arrive either. They will come only if an ambulance also comes to the scene. Who is left holding the problem? It is the individual ASW. Alternatively, the ASW may be relatively fortunate. The police officers and an ambulance agree to help to convey the patient to hospital, but even then—and I am very conscious of this particular situation, having been rather close to it—it is quite possible for the ASW to arrive only to be told that the bed has been filled by another emergency admission. The police officers say, “Sorry, we can’t hang about. We have to go to another incident”. The ambulance driver says, “We can only stay for another 10 minutes”. What is the ASW, and in the new world, the AMHP, supposed to do in that situation? As the Bill stands, they will carry personal legal responsibility. That situation simply should not happen, and I am sure that Ministers would agree. But the risk is very real on a daily basis.

Wards across the country are functioning with 100 per cent occupancy. In fact, in one of our boroughs, bed occupancy is 103 per cent. Ward closures continue—we closed wards last year; we will be closing some this year—in order to release funds for community-based services. The amendment is of growing importance as in-patient hospital beds in our mental health services are becoming an incredibly scarce resource. In my view, and I speak as the chairman of a mental health trust, mental health trusts should have the statutory responsibility to ensure that detained patients are safely conveyed to our hospital wards once they have been deemed liable to be detained.

I hope that the Minister will be willing to consider this amendment most carefully. I appreciate that these issues are not straightforward, but I know that she will be as concerned as I am to avoid serious injuries or worse to approved mental health practitioners who will be carrying the conveyance responsibilities in future. Perhaps I might mention that many years ago, when I was an ASW, a colleague of mine went to a house to assess a patient and she was decapitated. My interest in this amendment is somewhat personal. I beg to move.

My Lords, Amendments Nos. 72A and 72B are similar to amendments that were laid in Committee, and I know that they are supported by the British Association of Social Workers—quite understandably, given the comments just made by the noble Baroness. I am aware that in some parts of the country social workers can experience difficulties in accessing the services that they need in order to safely convey and admit patients. I note the figures cited by the noble Baroness and her graphic examples of problems experienced with ASWs. We fully sympathise with their concerns and understand their frustrations, and I note the dangers. However, we are not convinced that these amendments are the way to improve things, although clearly improvements are needed.

The amendments seek to put the onus on trusts to sort out difficulties in co-ordinating the services needed to convey and admit patients safely. I understand that approved social workers feel that they as individuals cannot influence the availability of the services and that a trust as an organisation would have more clout. However, approved mental health professionals should be supported by the local social services authorities on whose behalf they are acting. Indeed, it is often the case now that difficulties are escalated within the local social services authority, and the force of the LSSA is brought to bear on the situation.

It is crucial that there are effective local arrangements and good ongoing communication between all the bodies involved in conveying and admitting a patient. Amendment No. 72A would put a requirement in legislation for such arrangements to be in place. However, the Mental Health Act code of practice already says that there should be arrangements between the bodies involved in assessing, conveying and admitting patients to hospital. All the code does is state what is self-evidently the job of local bodies to co-operate with one another to put in place effective local services. They do not need guidance from the Government to tell them what is required. In many parts of the country protocols that are in place are working well, but where that is not the case there is no reason to believe that placing the requirements for protocols in legislation would make it any more likely that those protocols would be effective or adhered to.

Organisations at a local level need to consider whether the arrangements that they are already expected to have in place are working properly to protect patients and, of course, to protect their staff. That can be done only at a local level. Changing the legislation is not the way forward. We will consider how the code of practice can be used to emphasise further to local bodies what their obligations are, and naturally we would welcome further comments from noble Lords.

In addition, I wonder if the increased emphasis on local area agreements in the local government Bill currently being considered in another place will help to ensure that health services and local social services work more closely together so that there really are more effective local arrangements. In addition, I hope that the implementation of the Mental Health Bill will be an excellent opportunity to remind all local agencies of their obligation to work together.

We sympathise with the sentiment behind the amendments, but we believe that these issues are better dealt with through interventions at a local level. I therefore urge the noble Baroness, Lady Meacher, not to press her amendments.

My Lords, I am obviously disappointed at the Minister’s response. I hope that we can negotiate with the Home Office to improve responsibility for the police arriving at these scenes. It seems to a number of people involved that the police are the key here—if they arrive, the ambulances will arrive. If the police see their responsibility as being available for these emergencies, that will be very helpful.

My Lords, I note the noble Baroness’s comments. I undertake to explore that issue further; speaking with local police authorities about being more aware of the need to work more closely with the other agencies is a sensible step forward.

My Lords, I am most grateful to the Minister for that suggestion. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 72B not moved.]

72C: After Clause 38, insert the following new Clause—

“Independent mental health advocacy

After section 125 of the 1983 Act insert—

“125A Independent mental health advocacy

(1) The appropriate authority must arrange, to such extent as it considers necessary to meet all reasonable requirements, for help from persons to be known as independent mental health advocates, to be available to qualifying patients.

(2) The help available under the arrangements must include—

(a) help in obtaining information about and understanding— (i) what medical treatment is being provided to the patient; (ii) why it is being provided; (iii) under what authority it is being provided; (iv) the requirements of this Act which apply in connection with the patient’s treatment; and (v) the rights which can be exercised by or in respect of him under this Act, and (b) help (by way of representation or otherwise) in exercising those rights. (3) An independent mental health advocate authorised by a patient or his nearest relative on his behalf may at any reasonable time, for the purpose of providing, in accordance with the arrangements, help requested by the patient or his nearest relative, meet with the patient in private.

(4) The appropriate authority may by regulations provide that a person may act as an independent mental health advocate—

(a) only if requirements specified in the regulations are met in respect of him; (b) only if requirements specified in the regulations are met in respect of any person with whom arrangements are made for him to act as an independent mental health advocate; and (c) only in circumstances otherwise specified in the regulations. (5) In making arrangements under this section, the appropriate authority must have regard to the principle that the provision of help under the arrangements should, so far as practicable, be independent of any person responsible for the patient’s treatment.

(6) The following are qualifying patients—

(a) a patient who is liable to be detained by virtue of an application for admission for assessment or an application for admission for treatment under Part 2 of this Act; (b) a community patient; (c) a patient who is removed to a place of safety within the meaning of section 135— (i) in the execution of a warrant under section 135; or (ii) by a constable under section 136; (d) an accused person within the meaning of section 35 remanded under that section to hospital for a report on his mental condition; (e) an accused person within the meaning of section 36 remanded under that section to hospital for treatment; (f) a patient in respect of whom there is in force— (i) a hospital order; (ii) a transfer direction; (iii) a hospital direction; (g) a patient, not being liable to be detained under this Act, who is asked to consent to any form of treatment to which section 57 applies.””

The noble Lord said: My Lords, in moving this amendment I will speak to Amendment No. 72D as well.

We left this subject in Committee on something of a high note, with the Minister undertaking to consider this amendment during the Bill’s passage. As I understood the noble Baroness, Lady Royall of Blaisdon, to have said earlier, the Minister is still considering it, so I hope this amendment may jolly him along.

As there is no difference between us over the value of advocacy services, I shall not belabour that point. I remind the Minister—unnecessarily, I know—that the Mental Capacity Act is soon to come into force, with its special advocacy provisions. Indeed, the Government have made something of a virtue of this in public in the past week.

This legislation has wide support among mental health practitioners and user groups. The Minister will not need reminding that the Mental Capacity Act provides a statutory duty on authorities to provide independent advocacy to persons who, for example, face serious medical treatment under the powers of that Act. The glaring lack of such safeguards for patients who are formally detained under the Mental Health Act is spelt out in Section 37(2) of the Mental Capacity Act.

I believe that this distinction between the rights of patients under the Mental Capacity Act and the Mental Health Act is not only unethical in terms of equity of provision but dangerous. It is dangerous because we run the risk of having two statutes that have considerable overlap. The Mental Capacity Act is, and is seen to be, forward-thinking, concerned with patient rights and protections, and so on, whereas the Mental Health Act appears to be a set of second-rate provisions, outdated attitudes and the shifty machinations of a Home Office forever seeking unfettered powers of social control.

Every time we allow some unjustifiable inequity between the way in which these two statutory frameworks deal with patients, we move a step closer towards the Manichean system of a nice mental health law and a nasty mental health law. The danger, as this House has heard before, is that the nasty mental health law drives away those whom we would wish to seek early treatment, not least on grounds of safety.

Such concerns take us slightly away from the subject immediately at hand. To return to the question of advocacy, whether a detained patient is judged to be incapacitated or not in relation to certain decisions about his or her care, we must never forget that such decisions are taken within a framework of extraordinary disempowerment. I cannot see why patients detained under the 1983 Act should be any less deserving of statutorily based advocacy services than incapacitated patients falling under the terms of the Mental Capacity Act.

I hope that this puts some extra spark into the Minister’s deliberations. I beg to move.

My Lords, I feel enthused and sparked up. In Committee, we said that we would take away the issue of advocacy and consider the best way to make advocacy services available. That is exactly what we have done, but tonight’s deliberations will inform us more and will add spark to that debate. As I said in the previous debate on advocacy for children and young people, this issue demands careful consideration, so we are continuing to develop our proposals on the subject. We will bring them back when the Bill is considered in the other place. In the mean time, we look forward to discussing those proposals with interested noble Lords, and I would ask the noble Lord to withdraw his amendment.

My Lords, I am really pleased that at this late hour I have managed to bring some spark into the House. I am very grateful for the Minister’s comments and, therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 72D not moved.]

My Lords, my spark has all gone and I beg to move that further consideration on Report be now adjourned.

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

House adjourned at 10.11 pm.