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Mental Health Bill [HL]

Volume 689: debated on Monday 26 February 2007

Consideration of amendments on Report resumed.

26: After Clause 21, insert the following new Clause—

“Conflicts of interest

(1) The 1983 Act is amended as follows.

(2) In section 11 (general provisions as to applications), after subsection (1) insert—

“(1A) No application mentioned in subsection (1) above shall be made by an approved mental health professional if the circumstances are such that there would be a potential conflict of interest for the purposes of regulations under section 12A below.”

(3) In section 12 (general provisions as to medical recommendations), in subsection (1), after “this Part of this Act” insert “or a guardianship application”.

(4) In that section, for subsections (3) to (7) substitute—

“(3) No medical recommendation shall be given for the purposes of an application mentioned in subsection (1) above if the circumstances are such that there would be a potential conflict of interest for the purposes of regulations under section 12A below.”

(5) After that section insert—

“12A Conflicts of interest

(1) The appropriate national authority may make regulations as to the circumstances in which there would be a potential conflict of interest such that—

(a) an approved mental health professional shall not make an application mentioned in section 11(1) above; (b) a registered medical practitioner shall not give a recommendation for the purposes of an application mentioned in section 12(1) above. (2) Regulations under subsection (1) above may make—

(a) provision for the prohibitions in paragraphs (a) and (b) of that subsection to be subject to specified exceptions; (b) different provision for different cases; and (c) transitional, consequential, incidental or supplemental provision. (3) In subsection (1) above, “the appropriate national authority” means—

(a) in relation to applications in which admission is sought to a hospital in England or to guardianship applications in respect of which the area of the relevant local social services authority is in England, the Secretary of State; (b) in relation to applications in which admission is sought to a hospital in Wales or to guardianship applications in respect of which the area of the relevant local social services authority is in Wales, the Welsh Ministers. (4) References in this section to the relevant local social services authority, in relation to a guardianship application, are references to the local social services authority named in the application as guardian or (as the case may be) the local social services authority for the area in which the person so named resides.”

(6) In section 13 (duty to make applications for admission or guardianship), in subsection (5), after “section 11(4) above” insert “or of regulations under section 12A above”.”

The noble Baroness said: My Lords, the amendment deals with conflicts of interest. In Committee, I said that in Section 12(3) of the 1983 Act there was a lack of clarity on how conflicts of interest were dealt with. The amendment deals with two issues relating to that matter. The first is the circumstances in which a doctor, because of their position in relation to the applicant, the patient or another practitioner providing medical recommendations, may not provide medical recommendations. That is particularly important because of the proposals in the Bill to change the role of the ASW and the widening of the new role of associated mental health professional.

Secondly, for that reason, the amendment includes a regulation-making power that will enable the Government, perhaps at some time in the future, to widen the scope of the law concerning conflict of interest to a larger group of professionals than has been the case. There is need for complete clarity on how conflicts of interest are dealt with, particularly when people may be members of the same multi-disciplinary team. The regulation-making power would enable the provisions to be expanded at a future date without any need to resort to primary legislation. In moving the amendment, I place on record my thanks to officials who have helped with its formulation. I beg to move.

My Lords, I thank the noble Baroness, Lady Barker, for tabling such a sensible set of amendments. We agree with her that the regulation-making power that the amendment would introduce would give the flexibility to bring up to date the provisions about conflicts of interest for professionals concerned with applications, and to keep these provisions up to date in the light of future developments in service delivery. I hope that your Lordships will join me in supporting the amendment.

On Question, amendment agreed to.

[Amendment No. 27 not moved.]

28: After Clause 21, insert the following new Clause—

“CHAPTER 2A Criminal justice system amendments Court Mental Health Report for those remanded on bail

Before section 35 (remand to hospital for report on accused’s mental condition) of the 1983 Act, insert—

“34A Remand on bail for a mental health report

(1) In relation to the Crown Court, this section applies to a person who—

(a) has been sent for trial before the court for an offence punishable with imprisonment and has not yet been sentenced or otherwise dealt with for it (unless he has been convicted of the offence and the sentence is fixed by law), (b) has been committed to the court to be sentenced for such an offence and has not yet been sectioned or otherwise dealt with for it, or (c) has been committed to the court under section 43 and has not yet been dealt with under that section. (2) In relation to a magistrates’ court, this section applies to a person who has appeared before the court charged with an offence punishable on summary conviction with imprisonment and has not yet been sentenced or otherwise dealt with for it.

(3) Subsections (4) and (5) apply if the court—

(a) remands on bail a person to whom this section applies, and (b) is satisfied on the evidence of a registered medical practitioner that there is reason to suspect that the person is suffering from mental disorder. (4) The court may require the appropriate authority to arrange for an approved clinician to prepare a report on—

(a) the person’s mental condition, or (b) the appropriate medical treatment for that condition, (or both) in order to assist the court in dealing with the person for the offence. (5) The court may specify any particular matters which are to be included in the report (including an assessment of the risk posed by the person to members of the public).””

The noble Lord said: My Lords, I shall speak to this amendment only briefly; we have already had a debate on its subject matter. I simply want to glean whether there has been any movement on the part of the Government. The proposal would provide a smoother passage of some cases through the courts. I hope that the Government share that aim. I beg to move.

My Lords, the noble Lord invites me to give a short response. I am afraid that we were not moved by the noble Lord’s eloquence in Committee or when he described himself as astonishingly and wretchedly depressed by my response, because there is legislative provision to achieve what he wants. However, I accept that behind his amendment is an issue about problems that the courts have had. That is down to good practice rather than legislative requirement. I understand some of the practical issues that face courts when dealing with the kind of problems that the noble Lord raised in Committee.

My department and the Home Office commissioned a report on the state of court psychiatric schemes, which was published in September 2005. The report found that provision had grown up piecemeal. We need to do all that we can to even out that practice. Models of good practice in co-operation and commissioning are being identified and evaluated. A pilot has also been established based on a service level agreement for the provision of psychiatric reports to courts in the south-west. Evaluation of the pilot is due for completion in 2008 and will provide a good practice guide for other regions of the Courts Service.

We are not complacent about the issues that the noble Lord raised. We believe that this is best done through best practice. A pilot is in place and we will use its results to spread good practice throughout the court system.

My Lords, I am grateful to the Minister for his very helpful response. As he realises, I am concerned about ensuring uniform good practice in courts. Delays with psychiatric reports are very much to the detriment of mentally disordered defendants and cause delays in courts, which these days—in the Crown Court at least—cost between £15,000 and £20,000 a day to run. I hope that the pilot will prove successful and that, if it is, it can be rolled out quickly throughout all the circuits so that these difficulties will no longer occur. Having regard to the Minister’s helpful assurance of progress, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 29 not moved.]

30: After Clause 25, insert the following new Clause—

“Electro-convulsive therapy, etc.

After section 58 of the 1983 Act insert—

“58A Electro-convulsive therapy, etc.

(1) This section applies to the following forms of medical treatment for mental disorder—

(a) electro-convulsive therapy; and (b) such other forms of treatment as may be specified for the purposes of this section by regulations made by the appropriate national authority. (2) Subject to section 62 below, a patient shall be not be given any form of treatment to which this section applies unless he falls within subsection (3) or (4) below.

(3) A patient falls within this subsection if—

(a) he has consented to the treatment in question; and (b) either the approved clinician in charge of it or a registered medical practitioner appointed as mentioned in section 58(3) above has certified in writing that the patient is capable of understanding the nature, purpose and likely effects of the treatment and has consented to it. (4) A patient falls within this subsection if a registered medical practitioner appointed as aforesaid (not being the approved clinician in charge of the treatment in question) has certified in writing—

(a) that the patient is not capable of understanding the nature, purpose and likely effects of the treatment; but (b) that it is appropriate for the treatment to be given; and (c) that giving him the treatment would not conflict with— (i) an advance decision which the registered medical practitioner concerned is satisfied is valid and applicable; (ii) a decision made by a donee or deputy or by the Court of Protection; or (iii) an order of a court. (5) Before giving a certificate under subsection (4) above the registered medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient’s medical treatment, and of those persons one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner nor the responsible clinician.

(6) Before making any regulations for the purposes of this section, the appropriate national authority shall consult such bodies as appear to it to be concerned.

(7) In this section—

(a) a reference to an advance decision is to an advance decision (within the meaning of the Mental Capacity Act 2005) made by the patient; (b) “valid and applicable”, in relation to such a decision, means valid and applicable to the treatment in question in accordance with section 25 of that Act; (c) a reference to a donee is to a donee of a lasting power of attorney (within the meaning of section 9 of that Act) created by the patient, where the donee is acting within the scope of his authority and in accordance with that Act; and (d) a reference to a deputy is to a deputy appointed for the patient by the Court of Protection under section 16 of that Act, where the deputy is acting within the scope of his authority and in accordance with that Act. (8) In this section, “the appropriate national authority” means—

(a) in a case where the treatment in question would, if given, be given in England, the Secretary of State; (b) in a case where the treatment in question would, if given, be given in Wales, the Welsh Ministers.””

31: After Clause 25, insert the following new Clause—

“Section (Electro-convulsive therapy, etc.): supplemental

(1) Part 4 of the 1983 Act (consent to treatment) is amended as follows.

(2) In section 58 (treatment requiring consent or a second opinion)—

(a) in subsection (1)(b), after “section 57 above” insert “or section 58A(1)(b) below”, and (b) in subsection (3)(b), before “has not consented to it” insert “being so capable”. (3) In section 59 (plans of treatment), for “or 58” substitute “, 58 or 58A”.

(4) In section 60 (withdrawal of consent), for “or 58”, substitute “, 58 or 58A”.

(5) In section 61 (review of treatment)—

(a) in subsection (1), for “or 58(3)(b)” substitute “, 58(3)(b) or 58A(4)”, and (b) in subsection (3)— (i) for “or 58(3)(b)” substitute “, 58(3)(b) or 58A(4)”, and (ii) for “and 58” substitute “, 58 and 58A”. (6) In section 62 (urgent treatment)—

(a) in subsection (1), for “and 58” substitute “, 58 and 58A”, and (b) in subsection (2), for “or 58” substitute “, 58 or 58A”. (7) In section 63 (treatment not requiring consent), for “, not being treatment falling within section 57 or 58 above,” substitute “, not being a form of treatment to which section 57, 58 or 58A above applies”.”

On Question, amendments agreed to.

32: After Clause 25, insert the following new Clause—

“Independent mental health advocacy: young persons

After section 125 of the 1983 Act insert—

“125C Independent mental health advocacy: young persons

(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 for patients aged 18 years or under.

(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.””

The noble Lord said: My Lords, this amendment was tabled in Committee by the noble Baroness, Lady Howells of St Davids, whose name is again attached to it, and spoken to by the noble Baroness, Lady Massey, who has now moved on to even greater things.

I draw the Minister’s attention to the fact that this is what I described on the last occasion as the mini-amendment; that is, it deals with advocacy for children and young people. It does not deal with the other question of advocacy. I did not retable that amendment, although the noble Lord, Lord Patel of Bradford, has done so, and it is not grouped with this amendment. I will deal only with advocacy for children.

We have convincing evidence that children and young adults who are admitted to in-patient units do not always have information and are subject to confusion and fear. That is shown, for example, by the report from the office of the Children’s Commissioner, which was specific on this point. I want briefly to refer to two elements. The Children’s Commissioner made it clear that difficulties did arise and quoted specific examples, so we are basing our argument to a considerable degree on facts and evidence. Many of the young people were dissatisfied and unhappy about the in-patient services. In one case, no education was made available, although the patient was well within the “young” category for education. We believe that a specific requirement to make advocacy available to children and young people would be helpful in preventing them from switching off from the services and that it would provide a better basis for treatment and rehabilitation.

The amendment is in line with the national service framework for children. In our view, the costs would not be high—perhaps about £100,000 a year for compulsory admissions and up to £1 million for all children and young people. In so far as the Minister may insist that much of this work is already being done, the new expenditure is correspondingly lower.

I have brought this amendment forward now because it would be helpful to have the Minister’s assurances about the action that the Government and the authorities are encouraging in this area. That is what we are interested in; we want to know that we are making progress in making advocacy for children and young people more widely available. I beg to move.

My Lords, when I proposed this amendment in Committee, I related to noble Lords the story of a young Asian girl. Today, I will not give any further case studies but, as I am sure noble Lords know, there are many more.

The amendment would give children and young people under the age of 18 the right to receive counsel from an independent advocate when they are about to be, or have been, admitted for treatment for a mental health problem, whether the admission is voluntary or under compulsion. Independent advocacy for young people provides a safeguard against the improper use of powers to detain or treat them. All children and young people should have the right to know what will happen to them if they are admitted to an in-patient unit, what to expect on admission and when they might be discharged.

With an advocate present, a young person can be sure that someone independent of their parents, carers or clinicians will communicate their interests and ensure their right of appeal. It is very difficult for children to overturn any parental responsibility. It requires a court order, so children who do not feel that their views are being heard by parents and staff might have to seek extreme measures in order to be heard, possibly compromising their own beliefs.

I feel sure that the Government should look very carefully at the amendment and come back to the House with something that they may feel is more appropriate. However, we feel strongly that this amendment should receive the best care and attention from the Minister.

My Lords, we on these Benches also support the amendment. The Minister will know that there are precedents for groups of people having a right to advocacy services. The Mental Capacity Act 2005 enshrines the right to advocacy for people lacking capacity through the independent mental capacity advocacy service, and the Adoption and Children Act 2002 gives young people looked after by the state the same right to advocacy.

There are many reasons why a young person may need an independent person on whom they can rely to express their wishes to the appropriate authorities. I am particularly concerned about the right to education. The Children’s Commissioner report contains a case study about a young woman called Amber, who was not offered any education during her seven-month stay on an adult psychiatric ward, despite being 14 at the time of her admission. A child’s right to education and all the other rights are matters with which an advocate would be able to help them. An advocate could also ensure that children were properly informed, understood the treatment that was being made available to them, and many other matters. I support the noble Baroness, Lady Howells, on this.

My Lords, this amendment has an application to those in custody and possibly to those who come into the criminal justice system during the period before custody.

My Lords, this amendment is intended to ensure that advocacy services are available to all patients with a mental disorder aged 18 years or under. We recognise that there are certain groups of patients who will receive particular benefit from advocacy services and we have noted the views of the Children’s Commissioner. The noble Lord, Lord Patel of Bradford, and my noble friend Lady Howells of St Davids brought to our attention in our debate in Committee the experience of people from black and minority-ethnic communities treated under the Mental Health Act. In particular, they stressed that:

“Culturally competent advocacy can improve therapeutic alliances and find culturally, socially and racially responsive resolutions to conflict where it arises”.—[Official Report, 17/1/07; col. 691.]

The noble Lords were, of course, absolutely right, in that properly trained, specialist advocacy can be of greater benefit to particular groups of patients than more generalised advocacy. The work that the Government have commissioned to develop training and standards for advocates, which is currently under way, is looking at the needs of particular groups from within the population of patients with mental disorder.

In Committee, we said that we would consider the best way to make advocacy services available. I want to assure the House that we are making progress. I am unable to confirm how we will proceed, as we wish to continue with that work before the Government announce how they will take this issue forward. We have listened not only to the strength of feeling expressed by noble Lords in Committee but also to their comments about the need for a service that will take account of the differing needs of different groups of patients.

The amendment would provide that all patients aged 18 years or under would have access to these services. The Act provides that a patient is any person suffering from a mental disorder or appearing to suffer from a mental disorder. That person need not be in hospital or under the supervision of a specialist doctor. There is a wide range of conditions and situations that fit into that definition. Of course, I do not wish to underestimate the significance of any person who is living with a mental health problem. However, I wonder whether this would provide for a service that would effectively target resources to those in need.

I am aware that many younger child patients who are in hospital for their mental disorder are not subject to the Mental Health Act where their parents provide consent for their treatment, as my noble friend Lady Howells outlined. In considering the best way to provide for advocacy services, I well understand that it is important that this group must not be forgotten.

As we said in Committee, we are considering the best way in which advocacy services can be made available, taking into account the differing needs of different groups of patients. We wish to see tailored advocacy services, which will bring the maximum benefit to all groups of patients, including children and young persons. We have not, however, been able to get provisions ready in time for Report stage.

The Government will continue to develop their proposals on how patients with mental disorder who are subject to the Mental Health Act can access appropriate advocacy services and we will bring them back when the Bill is considered in the other place. Indeed, in considering this subject we would be very happy to discuss our proposals with noble Lords who are interested in doing so. We very much hope that they will help us on this. As such, I hope that the noble Lord will feel able to withdraw his amendment.

My Lords, I thank the Minister for that encouraging reply. I said at the beginning that this was a mini-amendment, and we always hope that the Government will make a mini-effort to accept it. We recognise, however, that the Government have gone quite a long way in following up their proposal at an earlier stage to consider the best ways to make advocacy services available. We note that their provisions are not yet ready for Report and that the Government expect to come forward with something to clarify their position when the Bill is in the other place. That is certainly encouraging for us.

This has been a short debate, but I am sure that the Minister feels that there is a strong feeling that this would be valuable and that we could make progress and improve on it. We shall be following the debates in the other place with great care and we hope that something of value will come forward. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 33 had been withdrawn from the Marshalled List.]

33A: After Clause 25 , insert the following new Clause—

“Nominated person

(1) Section 26 of the 1983 Act (definitions of “relative” and “nearest relative”) is amended as follows.

(2) In the cross-heading preceding section 26 after “functions of relatives” insert “, persons acting as relatives”.

(3) Before subsection (1) insert—

“(A1) In this Part of the Act “named person” means—

(a) any person described in subsection (1) below; or (b) any person not described in subsection (1) below who is the patient’s carer, who has been nominated by the patient in accordance with subsection (1A) below. (B1) In this Part of the Act “carer” has the same meaning as in section 1(1)(a) of the Carers and Disabled Children Act 2000.”

(4) After subsection (1) insert—

“(1A) A person is a named person in accordance with this subsection if—

(a) the nomination is signed by the nominator; (b) the nominator’s signature is witnessed by a prescribed person; (c) the prescribed person certifies that, in the opinion of the prescribed person, the nominator— (i) understands that the effect of nominating a person to be the named person will give him the role of nearest relative; and (ii) has not been subjected to any undue influence in making the nomination. (1B) A nomination under subsection (1) above may be revoked by the nominator in accordance with subsection (3) below.

(1C) The nomination of a named person is revoked in accordance with this subsection if—

(a) the revocation is signed by the nominator; (b) the nominator’s signature is witnessed by a prescribed person; and (c) the prescribed person certifies that, in the opinion of the prescribed person, the nominator— (i) understands the effect of revoking the appointment of a person as named person; and (ii) has not been subjected to any undue influence in making the revocation. (1D) The nomination of a named person shall be effective notwithstanding the nominator’s becoming, after making the nomination, incapable.

(1E) A person nominated under subsection (1) above may decline to be the nominator’s named person by giving notice to that effect to—

(a) the nominator; and (b) the local authority for the area in which the nominator resides.” (5) For subsection (3) substitute—

“(3) In this Part of this Act, subject to the provisions of this section and to the following provisions of this Part of this Act, the “nearest relative” means, in descending order—

(a) the named person; (b) the person first described in subsection (1) above who is for the time being surviving, relatives of the whole blood being preferred to relatives of the same description of the halfblood and the elder or eldest of two or more relatives described in any paragraph of that subsection being preferred to the other or others of those relatives, regardless of sex.” (6) In section 26(4) after “his nearest relative” insert “under subsection 3(b) above”.

(7) In section 26(5) for “(3)” substitute “(3)(b)”.”

The noble Baroness said: My Lords, the new amendment takes a much narrower approach than we took in Committee because we have listened so closely to the Government’s arguments. The Mental Health Alliance has come up with this amendment, providing the patient with a more restricted power to choose their nearest relative. The current list of eligible relatives who can take on the role of nearest relative will be retained. The patient would have the power to nominate their nearest relative, but only somebody from the current list plus their primary carer. The patient would have to fill out a legal form and a prescribed person would have to certify that the patient had the capacity to make this decision. It gives a restricted amount of choice to the patient, but gives some nevertheless.

The Bill must be amended to allow a patient to nominate their representative to some extent. First, the nominated person is more likely to be someone in whom the patient has trust and confidence. Secondly, it would provide greater legal clarity on who the patient’s legal representative is, and avoid the need for some of the intrusive questioning which certainly goes on during the sectioning process. Thirdly, it would avoid the unnecessary legal costs of requiring a patient to go to court to displace a nearest relative they disagreed with.

The Joint Committee on Human Rights also recently reaffirmed the implications of R(E) v Bristol City Council 2005, where the court held that the provision should be interpreted in accordance with the patient’s Article 8 ECHR rights, taking her wishes and/or health and well-being into account. The JCHR said that to ensure compatibility with Article 8, the approved social worker’s duty to consult the nearest relative about compulsory admission does not apply if the patient objects to that person being consulted. We also know that service users welcomed the 2004 Bill’s provision for a nominated person and are clear about the importance of the role for them.

I could say a great deal more on the matter, but I hope that I have given your Lordships’ House a sufficient explanation of why we regard this as so important. I hope that I have also shown that we have listened closely to the Government’s own concerns about this. I beg to move.

My Lords, I agree with the points raised by the noble Baroness, Lady Neuberger, and shall add a brief comment. As your Lordships are aware, the Joint Committee on Human Rights has warned that the Government’s proposals do not give adequate respect for the patient’s right to private and family life, saying that,

“the Government is laying themselves open to future embarrassing litigation”.

I shall be surprised if the Minister does not, finally, grasp at the solution being offered through this amendment. The law as it is, and as it will remain under the Government's proposals, leaves too much that is uncertain and too much to the discretion of individual social workers for an adequate protection of Article 8 rights.

For example, even after being displaced by a county court, a nearest relative is deemed by case law to continue to retain—I quote from the 1995 ruling in Surrey County Council SSD v McMurray—a “legitimate interest” in a patient’s welfare, which,

“should always be paid proper respect by the authorities in making decisions about and arrangements for the patient's care”.

The law therefore suggests that, even after displacement, a nearest relative may continue to have some contact with professionals regarding a patient’s circumstances and decisions relating to his or her care. The only way in which an approved mental health practitioner could avoid a continuing breach of Article 8 in respect of a patient whose nearest relative has been displaced as unsuitable, would be to claim that such continued contact would be not “practicable”, relying on the definition of practicability given in the more recent 2005 Bristol City Council case referred to by the noble Baroness. To my mind, that places a burden on the social worker that should not in fact arise in any sensible legal structure. Furthermore, a displaced nearest relative continues to retain the ability, under Section 29(6) of the Mental Health Act, to apply to the mental health review tribunal annually on a patient’s behalf.

As such, the proper answer to the Article 8 problems highlighted in past legal challenges is not to widen the criteria for displacement, but to enable patient choice to determine who the nearest relative is in the first place.

My Lords, I am grateful to the noble Baronesses, Lady Barker and Lady Neuberger, for their work on Amendment No. 33A, which is a considered attempt to address the concerns that my noble friend Lord Hunt raised on the earlier amendment in Committee. They have made significant changes. However, while it addresses the issue of patients nominating totally inappropriate strangers as their nearest relative, it still suffers from the difficulties associated with patients having nomination rights over the person who can block their admission to hospital or discharge them from compulsion.

In Committee, noble Lords made reference to the role of the “nominated person” that we proposed in the 2004 draft Bill. As your Lordships are aware, that Bill would have abolished the nearest relative, while the role of the nominated person, which it instituted, was entirely different to that of the nearest relative. The role of the nominated person was that of a patient representative, so it was right and proper that the person was chosen by the patient. In the debate, a number of noble Lords did not accept our concern that a patient nominee would act at the behest of the patient even where that might not be in line with what they themselves saw as the best interests of that patient. The noble Baroness, Lady Barker, asked why there was any more reason to believe that a person nominated by the patient would be more likely to act against the best interests of the patient than one nominated under any other system.

We are not concerned that a person named by the patient is more likely to act wilfully against the best interests of the patient, but that a named person is more likely to act at the behest of the patient. We feel that a person named by the patient is likely to feel an obligation to act in the very way the patient requests. While this amendment restricts whom the patient can nominate as their nearest relative, the same concerns apply. The role of the nearest relative is not one based on acting in the name of the patient, but one that provides for nearest relatives to act in the way that they consider is right. The process of nomination can introduce an unhelpful and damaging dynamic into the relationship between the patient and the person who is to exercise the rights of the nearest relative.

SANE has told us that,

“because of the effects of their illness, some patients put considerable pressure on their nearest relative to stop them being taken to hospital or discharging them once they are there. The spouses, parents and caring relatives manage this as well as they can”.

It goes on to say that it,

“would be concerned if widening the scope of those who might be able to perform the functions of the nearest relative could have the effect of alienating family members caring day in and day out for relatives living with severe and enduring mental health problems—making family relationships at these difficult times even more fraught and fractured and possibly compromising the help on which the patient might need to rely in the long term”.

That is not to say that SANE opposes the principle of patient choice. However, it believes that,

“it is also important to protect the status of the nearest relative and distinguish it from that of other people and advocates”.

We have made it clear that nearest relatives are not patient representatives, and their appointment should not be made in a way that can place further stress on family relationships at what may already be an extremely difficult time.

Where detention is for the purposes of treatment, under Section 3 of the Act, the nearest relative is able to oppose the detention. Having decided to retain the general scheme of the current Act, rather than to replace it entirely, we do not wish to see an end to that important safeguard. Equally, we do not wish a nearest relative named by the patient to feel obliged to oppose detention because that is the wish of the patient who nominated him, and, should he fail to oppose that detention, to see the patient revoke his status as nearest relative only to choose another perhaps more compliant relative or carer who would order his discharge.

Since we announced our changes we have had correspondence, some from a concerned nearest relative whose daughter has from time to time been detained. He reports that his daughter is often angry that he, as her nearest relative, does not use his powers to block her detention or to discharge her early. He was concerned that our amendments would mean that his daughter would be able to go to court to have him displaced as a nearest relative, because he would not act to discharge his daughter if he felt doing that was not in her best interests. We have reassured him on that point.

Various points were made about the JCHR. In its fourth report of the 2006–07 Session it questioned whether the Government intended the word “suitable” to equate to abuse. That is not the case. The intention is that it will include, but not be so narrow as to be limited to, nearest relatives who have a history of abusing or potential to abuse the patient.

Returning to the amendments, I believe that Amendment No. 33A would concern the father of the patient, to whom I referred, as well as many other conscientious and caring nearest relatives. We believe that the amendment may inadvertently undermine this safeguard, and has the potential to cause unwarranted problems in what are often, as your Lordships pointed out during Committee, complicated family dynamics.

On Amendment No. 35, I recognise that the noble Baronesses, Lady Barker and Lady Neuberger, wish the nearest relative to have a say in vital decisions affecting the patient. That is understandable, and in principle we agree. However, Amendment No. 35 is not needed and could cause real practical problems. In Section 3 of the Mental Health Act 1983, there is a duty on what will be known as the AMHP to consult the nearest relative on application for admission for treatment, unless it is impracticable or would involve unreasonable delay. That enables the nearest relative to exercise his right to block the detention of the patient.

The decision to place a patient on a CTO is quite different in nature to detention under Section 3; it is a treatment decision. The CTO is essentially an extension of compulsion and, importantly, lessens the restrictions imposed on the patient. The Act requires consultation with the nearest relative—and provides a power for the nearest relative to block detention—in decisions where the patient is facing greater restrictions to his liberty, not fewer. The requirement to consult the nearest relative when a CTO is made is not consistent with this. Paragraph 31 of Schedule 3 to the Bill amends Section 133 to ensure that the nearest relative is informed where a patient is placed on to a CTO, as must occur when a patient is discharged from detention. We therefore believe that no further requirement to consult the nearest relative is needed. Also, to impose a duty for the responsible clinician to consult is problematic without an associated power for the nearest relative to act should they disagree with the decision. What would happen if there were a disagreement between the nearest relative and the responsible clinician? This amendment gives no power for the nearest relative to act if such disagreement occurs.

We are also concerned that it would not be right to involve a nearest relative in cases where the patient objects. To do so may give rise to a breach of the patient’s rights under Article 8 of the European Convention on Human Rights. Even if the nearest relative were a person named by the patient—as Amendment No. 33A proposes—it would not always be the case that the patient would want the nearest relative consulted when a community treatment order is being considered. This amendment does not provide for the patient to prevent this consultation.

There is already a duty to inform the nearest relative when a CTO is made. We think the best way to address the question of consultation is via the code of practice, where it is possible to set out the circumstances where consultation should and should not take place. The draft illustrative code for England includes material to that effect; we can, of course, consider what else might be needed in due course and will listen to the views expressed by noble Lords. We consider that there is an important place for the proper representation of patients. There is a role for a person, or persons, of the patient’s choice to be able to put forward their views and advocate on the patient’s behalf, as I described in our last debate.

We have provided guidance to practitioners in the draft illustrative code of practice on when carers and nearest relatives should be consulted, and the important role that they can play in a patient’s care and treatment. There will also be further opportunities for stakeholders’ views to be incorporated before the code is laid before Parliament.

We do not believe that the amendments in question are the appropriate way of achieving effective patient representation, but that we already have the correct balance in the existing provisions for carers to be prioritised when determining the nearest relative. I therefore ask that the noble Baroness considers withdrawing her amendment.

My Lords, I thank the Minister for her response. She will hardly be surprised to hear that I am slightly disappointed. We accept part of what she said, particularly her fair point on Amendment No. 35 about the nearest relative not being able to act on the CTO, which is something that we will take back and look at. However, we are not convinced by the rest of the argument. This is a point that goes back to Committee. We are not convinced of the real difference between mental illness and physical illness or that one does not let a person make even limited choices about who can act as nearest relative on his behalf. We listened to what the Government had to say and limited the list concerned. We believe that there is enough differentiation in the system between people with physical and mental illnesses. We think that this is a difference too far, and that it is unnecessarily restrictive. We will take this away and look at it closely, and we will probably come back at Third Reading. Having made clear that we are not as yet content, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 26 [Community treatment orders, etc]:

33B: Clause 26, page 15, line 31, at end insert—

“(b) if the responsible clinician is not a medical practitioner, the responsible clinician has arranged for the patient to be examined by— (i) the registered medical practitioner who has been professionally concerned with the medical treatment of the patient; or (ii) if no such practitioner is available, a registered medical practitioner who is an approved clinician; and the medical practitioner has made a written recommendation in the prescribed form including a statement that in the opinion of the practitioner the relevant criteria set out in subsection (5) below are met; and”

The noble Earl said: My Lords, in speaking to Amendment No. 33B I shall raise an issue that has caused considerable and deep divisions between the Government and the mental health community, namely, the conditions which should determine the threshold of entry on to a community treatment order. I shall speak also to Amendments Nos. 36A, 47 and 59.

The Minister should note that, in moving this amendment, I do not oppose CTOs outright, even though there is a strong argument for doing exactly that. If there was one speech in Committee that summed up the intellectual case against CTOs, it was that of the noble Baroness, Lady Meacher. The supposed effectiveness of CTOs as proclaimed by the Government is not backed up by any convincing evidence. Even more serious than that, there is a real risk that the coercive element in CTOs will undermine the whole basis on which community mental health services are provided through assertive outreach teams and the rest. Those services depend for their success on positive engagement and trust. It is very difficult to have benevolent treatment and coercion operating side by side; indeed, some would say that it is impossible. At the very least, the combination sends a very mixed message to the patient.

The Minister seems to take it as self-evident that being on a CTO is better for a person than being detained as an in-patient because it is less restrictive, but he overlooks an important fact: although a patient may have been ill enough to be placed in hospital at the outset of the process, by the time the issue of discharge arises, that is no longer the case. At that stage, the issue is whether a person who is well enough to enter the community should remain under the enforceable and coercive power of an order. It is by no means self-evident that, for the generality of patients, continuing coercion represents an ethical or therapeutically effective way forward.

We have to be clear that these orders are likely to be exceedingly restrictive in some cases. Clinicians will need to think carefully before imposing them because there is no doubt that any CTO will interfere with a person’s family and private life, sometimes severely. Yet the Bill tends to encourage the opposite approach—the noble Baroness, Lady Meacher, made this point—because it is framed in such a way as to put pressure on professionals to impose CTOs, even when they may not really wish to, purely to cover their own backs. I do not think we should put professionals in that position, which is one of the main reasons why I feel we owe it to them and to patients to define as closely as we can the cohort of people whom we are prepared to accept could be made subject to an order.

The amendments take as their starting point a premise that I am not sure the Minister has ever really accepted, which is that, leaving aside people who fall within Part 3, patients who retain full decision-making powers in relation to their own treatment should normally be allowed to take control over their own lives, just as anyone with any other health condition should be able to. Only where decision-making powers are impaired is there an ethical case for compulsion. Furthermore, I believe that those who are not a serious risk to others can be treated satisfactorily by the existing provisions of the Mental Health Act relating to leave of absence and supervised discharge.

Although supervised discharge is little used, it has been proven to be effective in most of the cases in which it has been used over a wide range of clinical and social problems. It is suited to patients who are in hospital under compulsion and whose condition has stabilised to the extent that they do not require close hospital supervision but who are not well enough to be fully discharged from medical care. It is a supportive regime that strengthens rather than weakens the therapeutic relationship. One of the interesting features of the research into the use of Section 25 supervised discharge is that it improves compliance with medication. The absence of a coercive element does not seem to matter. Apart from the fact that that finding calls into question the whole rationale for CTOs, it provides good grounds for leaving out Clause 30 and retaining the option of supervised discharge. If one accepts that—and the vast majority of mental health professionals do—it is clear that we need to exclude from the ambit of CTOs any patient who represents no serious risk to others and can take balanced decisions about his or her own treatment.

So what kind of patient is a CTO potentially suited to? The Government’s argument for the use of CTOs has focused on cases where a person poses a serious risk to others. The thought is that this group of people will benefit particularly from the blend of supervision, care and control and the possibility of recall that a coercive outpatient system provides. As far as hard evidence goes, the jury is still out on whether that assumption is valid in the sense of CTOs being able to prevent homicides. We simply do not know. However, in an effort to be fair to the Government, I am willing to take their belief at face value for the purposes of the Bill. Accordingly, the amendment states that those who pose a serious risk of harm to others should be liable to be placed under a CTO; furthermore, they should be people whose ability to make decisions about receiving medical treatment is significantly impaired. In a nutshell, we are dealing with patients who do not, at the relevant time, accept that they are a risk to others, despite being advised that they are, because of the nature of their mental disorder. In the accepted jargon, they lack insight.

However, we need to go further than that. If we allow CTOs to be imposed on every patient who falls into that category, we run a big risk of leaving very wide scope for these powers to be used on people who will derive no benefit from them. There is simply no evidence that, for the majority of patients, coercion in the community works better than an informal regime of community supervision and care. If coercion is used, it must be justifiable.

For that reason, I have also argued under the amendments that we should seek to restrict the application of CTOs to a relatively narrow group, commonly referred to as revolving-door patients. They are defined by a three-pronged criterion. The first prong is that, on at least one occasion for the current admission under Section 3, the person has refused to accept medical treatment for a mental disorder. The second is that, when appropriate medical treatment has been refused in the past, there has been a significant relapse in his condition justifying compulsory admission to hospital. The third is that, when the person was admitted compulsorily, medical treatment resulted in an improvement in his condition or prevented its deterioration.

The conditions therefore link the previous refusal of treatment which results in admission with the proven benefit to the patient from the treatment proposed. They then require a relapse to have occurred because of the failure to continue with the medication. Furthermore, the doctor must be clear that the patient is unlikely to continue with the medication without an order. In that way, the legislation will make clear to professionals that the key criteria are: previous relapse, proven therapeutic benefit from treatment and the need—the need—for compulsion.

The amendment also stipulates that any decision to place a patient on a CTO must involve a medical practitioner. That is because only a medical practitioner can take what are essentially medical decisions—what is the person's mental disorder, how severe it is, how likely it is that the patient will comply with medication, the risk of relapse and so on.

I do not expect the Minister to change his position on the issue. He has previously resisted any narrowing-down of the criteria for CTOs. We are therefore likely to remain as far apart at the end of this debate as we were at the beginning. That is not a happy state of affairs, but it does not detract from my belief that the amendments represent the right way to proceed, for all the reasons that I have given. I therefore beg to move.

My Lords, we support the amendments moved by the noble Earl for the reasons that he has given. I simply want to remind the House of Chapter 5 of the report of the joint scrutiny committee. We heard a great deal of evidence about community treatment orders. As paragraph 205 of Volume 1 of our report records, on balance, we came down in favour of limited compulsion in the community. We heard a great deal of evidence from both home and abroad, and we invite the Government to take the view that the amendments provide an appropriate restriction on a power which, we on the committee fear, might become overused as a substitute for residential compulsory treatment.

My Lords, I want briefly to appeal to the Minister and the House to recognise that these are complex disorders and situations. It is a fantasy to believe that the first time that a psychiatrist meets such a patient they will know precisely what is the diagnosis; that, even if they do, they will know what is the best treatment; and, even more contentiously, that they will be clear about the prognosis. To believe otherwise is to be in cloud-cuckoo-land. These are complex, difficult disorders. Until one sees how they work out in practice—whether patients relapse; whether particular treatments work; whether compulsion, inpatient or outpatient treatment works best—other than from the experience of working with the patient, one cannot know. To embark on compulsion from an early stage is, at best, unwise and, at worst, professionally irresponsible.

My Lords, I just add a brief word about the contrary pull of compulsion and therapy. Obviously, I am not a medical practitioner, but I often have to deal with people who need to, if I may put it this way, do some work on themselves if they are to flourish and make a continued good contribution.

I have never known a case where compulsion assisted in that process. It is always to be undertaken with the greatest reluctance because of its counter-therapeutic effect. The patient—the person—is deflected from an engagement with the forces within that have to be engaged with into a preoccupation with the forces of the authority that has required the patient to have treatment. As I say, that is counter-therapeutic; therefore, the narrowing of the criteria—imposing statutory reluctance, as it were—seems to be of the first importance.

My Lords, I am very disappointed overall. Although I have moved a long way personally in my response to the Government's proposals—I no longer oppose them fully—we do not even have agreement to the constraints that would restrict community treatment orders to the very group that the Government have said they want to be subject to the orders. I remain very concerned that a young person who has a first breakdown—20 per cent will never have a relapse—may be placed on an order, come into hospital and remain on an order at intermittent review, without ever having had the opportunity to demonstrate their non-compliance with the medication.

At the very minimum, we should have some restriction that enables that person to demonstrate that they can build a relationship and become engaged in treatment. As the legislation stands, that may not be possible. What signal does that send to young people in the community, the very ones whom we want to encourage into treatment at the first symptoms of their illness? I strongly support the amendments to constrain the orders and still believe that we would catch under the order the very people whom we would like to engage in treatment for longer.

My Lords, this has been a short, although, if I may say so, sober debate on supervised community treatment, which is one of the pillars of the legislation. We had a good debate on the principles of supervised community treatment in Committee. Although noble Lords opposite and those on the Cross Benches have concerns about supervised community treatment, they have also made clear—the noble Earl, Lord Howe, certainly, did—that supervised community treatment is not opposed outright.

However, there is clearly a big gap between the Government and other noble Lords on the benefits that we believe supervised community treatment will bring and on other views. For instance, the noble Earl, Lord Howe, talked about the coercive element of supervised community treatment undermining confidence and trust and referred to the positive nature of assertive outreach work. He suggested that that might be undermined by the use of supervised community treatment. Clearly, the Government disagree. We think that supervised community treatment is complementary to the progressive work being done in the development of mental health services. I reiterate the comment that I made in Committee, which the noble Lord read back, that if supervised community treatment can be provided as an alternative to compulsory treatment in hospital, surely that must be to the advantage of many patients.

Before I give my technical response to the amendments, I should point out that supervised community treatment, in contrast with that in other countries, can apply only to those patients who would already have been detained under the Mental Health Act. The strong criteria in Clause 26, on page 15, against which a person must be tested for a community treatment order, very much mirror the criteria that would apply to a person having to be detained in hospital in the first place. I know that we are going to debate some of the safeguards in the next two groups of amendments, but I must say at this point that the amendment ignores what the Government believe are very strong safeguards in the Bill for people placed under supervised community treatment. That is my answer to the noble Lord, Lord Alderdice. Of course I accept his point about the complexity of the issues. As a lay person, I do not begin to underestimate the difficult decisions that psychiatrists, responsible clinicians or approved mental health practitioners will have to take, not only in relation to provisions in the Bill but more generally in their work. The fact that a person to whom supervised community treatment applies will have already been detained under the Mental Health Act is a response to the fear that thousands of people will suddenly be compulsorily detained in the community. Noble Lords will know that we estimated that, over five years, it would apply to a few thousand people. We do not believe that it will be overused or that it will be a substitute for hospital treatment. We believe that supervised community treatment sets a very positive example for a number of people who have been detained.

There are a number of elements to the amendments that the noble Earl has tabled, some of which we have debated in earlier stages of the Bill. Amendment No. 33B relates to the role of a medical practitioner in the decision to place a patient under a community treatment order. It is very important that provision is made in the Bill for a patient’s responsible clinician and that the ability to be a responsible clinician has been widened from being simply a medical practitioner. That is a very important element of the proposals that we put before your Lordships. It is worth making the point that the responsible clinician alone cannot make the CTO but must have the agreement of an approved mental health practitioner. Responsible clinicians should consult the multi-disciplinary team, who will provide the necessary input.

I reiterate a point made by my noble friend on Report: there is no question of the responsible clinician being able to dictate to a doctor the medication for a particular individual. That cannot arise. As my noble friend said, the decision must rest with the individual doctor prescribing that medication. Nothing in the Bill changes that. There are real benefits in having responsible clinicians who may not be medics but who will be senior professionals in their field and will have demonstrated the highest skill and expertise in mental health and undergone specialist training. The skills, experience and expertise will be enshrined in—

My Lords, does the Minister accept that a consultant psychiatrist has had 13 years of training to create the tools for him to make these very difficult judgments? When he mentions other professionals and training, I think that we are probably assuming that he means perhaps days or weeks of training. Does he really think that, in the case of someone suffering from a psychotic illness, anyone other than a psychiatrist, who has had the many, many years of training and experience that I mentioned, can develop the expertise to make these judgments to impose on the individual, possibly for very long periods, a requirement to take medications that that clinician will not understand and the side effects of which that clinician will not understand? Does it not seem incongruous to the Minister to have people taking decisions that they simply do not have the competence to take?

My Lords, I simply do not recognise the possibility that the noble Baroness describes. She referred, for instance, to a few weeks’ training. Let me disabuse her of that notion immediately. We are talking about people who have been senior professionals in their particular field for a considerable number of years; I do not want to specify the exact number. That is the point of directions, which will have the force of law. These issues are being, and will be, agreed with stakeholders, including the Royal College of Psychiatrists.

My Lords, of course other professionals may have had several years of training in their professions to develop the tools to enable them to undertake their professional duties. However, those professionals will be experts on behavioural therapy and all sorts of other things, but they will not be experts on the treatments that are required by psychotic patients. That is the concern. I think that many of us in this House will be very happy for, say, a psychologist to be responsible for making a community treatment order for someone with a personality disorder once the assessment has been made of that person to ensure that that disorder was not in some way complicated by a psychotic disorder. My concern is that there is no indication in the Bill that people with a psychotic disorder should be put under a community treatment order only by someone who understands the full implications of that decision and the treatment to which that person will be subjected.

My Lords, the problem with the route that the noble Baroness is taking is that if a responsible clinician, subject to approval by the approved mental health practitioner, cannot take certain decisions in relation to a community treatment order, you undermine the role of that clinician. I do not want to be pushed into a corner and give a definite statement in response to an instance that she has given, but my general understanding is that, in the kind of situations that she has described, a consultant psychiatrist is the most likely responsible clinician. My problem with the amendment is that it is saying in essence that the responsible clinician cannot in the end accept responsibility. I have received a number of comments from bodies such as the British Psychological Society and the Royal College of Nursing, as well as from a consultant psychiatrist, expressing concern that, however much the amendment as proposed is well intentioned, its ultimate impact will be to undermine the whole concept of the responsible clinician who in the end has to accept responsibility.

My Lords, I want to draw two issues to the Minister’s attention. First, it is not possible for the responsible clinician to take responsibility for a medication unless they are qualified to prescribe it. Secondly, the person who is responsible for prescribing a medication may be in the position of having to continue to prescribe it within a context that they do not agree with, because it is required only that there be a consultation. We all know from years of working with Governments how much consultation can sometimes mean in terms of real decision-making. Therefore, the medical practitioner will be in the position either of having to continue prescribing a medication within a context that they do not agree with or of stopping it. The medication could not then be prescribed by the responsible clinician if he is not a medical practitioner because he would not be legally empowered to do so.

My Lords, I made it clear early on that, when a doctor prescribes a medication, that is clearly the result of the medical judgment of that doctor. I reiterate that. On coercion, I should have thought that any doctor who was so coerced would be acting against all the principles that the medical profession holds dear. I just do not see that happening. The point that I sought to make is that, if we are establishing responsible clinicians in this Bill, we accept that, while in some cases they may not be medical doctors, in the main they probably will be. Given that, by agreeing to the amendment proposed by the noble Earl, Lord Howe, where the approval of the medical practitioner is needed, we would undermine the role of the responsible clinician. It may be that because of their concerns in this area, noble Lords wish to do that. All that I am seeking to do is again to draw a distinction between the role of the responsible clinician and that of the medical practitioner in the decision—

My Lords, will my noble friend give way, because I am becoming increasingly confused about this? It has always been my understanding, and I do not see anything in the Bill to change it, that if a person is to be treated with a drug therapy to deal with a psychosis, for example, it has to be prescribed by a doctor. It cannot be prescribed otherwise—end of argument and full stop. On the other hand, in the case of a personality disorder that does not usually require drug treatment, the patient might require treatments using other skills and abilities that also often require lengthy periods of training. In those circumstances, a person with medical qualifications is not necessarily the right individual to make the approach. Therefore, there always has to be a team approach, because ultimately both groups will be involved. However, it is and always has been absolutely clear—and would be even if this Bill had not been brought forward—that a person cannot prescribe a drug therapy unless they are medically qualified.

My Lords, that is a helpful intervention. My noble friend is right: nothing in the Bill requires a professional to act beyond their professional competence. A professional will not be able to make decisions about medication unless they are qualified to do so.

I shall carry on in order to refer to two other aspects of the amendment. The noble Earl, Lord Howe, referred to concerns that, in effect, clinicians will be forced to err on the side of caution and make a patient subject to a CTO on discharge from hospital simply to cover their backs. With respect, if a responsible clinician is considering supervised community treatment, they must make the decision with reference to the criteria in the Bill and the guidance that we will provide on the application of those criteria. We have debated before the issue of trust in professionals when exercising their judgment to do so fairly, so surely it is right to expect responsible clinicians to exercise their judgment on the application of the criteria. We need to be very careful before we accept this caricature of how a supervised community treatment order might work in practice.

I understand the points made by the noble Earl about aftercare—ACUS, as it is known—and his argument that this ought to be retained as a way in which supervised aftercare could be provided. However, the problems are twofold. First, it is clear that it has not been used because neither professionals nor patients have much confidence in it. We have evidence that it has not worked well. A study commissioned by my department in 2001 found that take-up was low, largely because it was seen as bureaucratic and lacking in the necessary powers. For instance, there are no powers to recall a patient to hospital for treatment. I also say to the noble Earl—and here I go back to our previous debate where clarity has been called for, particularly for the professionals who are going to have to operate the legislation—that to have two different systems for the management of mental disorder in the community would make it more difficult and confusing to clinicians in deciding which system is more appropriate for their patients.

I fully accept that supervised community treatment is a compulsory regime and should not be taken lightly. I believe that the stringent criteria set out in the Bill and the safeguards built into supervised community treatment, along with the judgment of professionals, albeit guided by the code of practice, will ensure that the clear advantages offered by supervised community treatment will bring very worthwhile benefits to many patients now being detained in our hospitals. I therefore urge the noble Earl to reconsider his view.

My Lords, I am most grateful to all noble Lords who have taken part in this debate and to the Minister for his reply. He is of the view that we have here a set of provisions that provide an appropriate gateway into compulsory community treatment. My belief is that the gateway is too wide, and that is the reason for these amendments. Underlying that division of view between us is a philosophical divide. If I had to be brutal about the Government’s position on this issue, as indeed on other issues in the Bill, I would say that it rests on a profoundly paternalistic attitude to mental health patients. It is an attitude that accepts only grudgingly that the autonomy and decision-making ability of those with a mental illness matter at all and which would actually much prefer these people to jolly well accept what is good for them whether they like it or not.

My Lords, I apologise for intervening because I know that the House wants to reach a decision, but I just want to say that that is not the Government’s view. Ours is not a paternalistic approach. The noble Earl, Lord Howe, ignores the fact that the patients to whom these provisions will apply are those who have already been detained under the provisions of the Mental Health Act. Supervised community treatment, far from being paternalistic, will offer a number of patients a greatly enhanced process over simply continuing to be detained in hospital.

My Lords, I understand the Minister’s view on this issue. The fact is that we do not know how many patients will benefit from being on a CTO because the evidence, as I said, is simply not there, despite all that the Minister said. The evidence that we have is inconclusive, in that all the studies in this area have been unable to tell whether any beneficial effects of CTOs are due to the compulsory nature of the order or to the increased community services that are made available alongside the order. If enhanced community services support better outcomes on a voluntary basis, as we know they do, the addition of a compulsory order is likely to make no positive difference to those outcomes; indeed, it may detract from them because of the element of coercion.

It is not often that I pray in aid the noble Lord, Lord Warner, but it was he who emphasised in Committee that it is the so-called “revolving door” patients whom these provisions are designed to help. That is why the amendment proposes that only those patients who fall into the “revolving door” category are covered by the SCT provisions. The noble Baroness, Lady Murphy, told us succinctly the dangers of having a wider gateway. In response to the exchanges about the medical practitioner being involved, these amendments propose that, before a person is put on to a CTO, two professionals have to agree that that is clinically appropriate. That is all it amounts to.

On an issue of this kind, it is right for me to test the opinion of the House, and I beg leave to do so.

[Amendments Nos. 34 and 35 not moved.]

[Amendment No. 36 had been withdrawn from the Marshalled List.]

36A: Clause 26 , page 15, line 39, leave out from beginning to end of line 7 on page 16 and insert—

“(b) except where a patient is detained under Part 3 of this Act (a patient concerned in criminal proceedings or under sentence), the patient’s ability to make decisions about the provision of medical treatment is significantly impaired because of his mental disorder; (c) it is necessary for the protection of others from serious harm that he should receive treatment; (d) subject to his being liable to be recalled to hospital for medical treatment such treatment can be provided without his continuing to be detained in a hospital and it cannot be provided unless he is liable to be recalled to hospital; (e) the patient has, on at least one occasion previous to the present admission under section 3, refused to accept medical treatment for a mental disorder and— (i) when appropriate medical treatment has been refused there has been a significant relapse in his mental or physical condition justifying compulsory admission to hospital; and (ii) medical treatment following compulsory admission alleviated or prevented a deterioration in his condition; and (f) appropriate medical treatment is available for him.”

On Question, amendment agreed to.

[Amendments Nos. 37 and 38 not moved.]

39: Clause 26 , page 16, leave out line 34

The noble Earl said: My Lords, we come now to some further, very major, concerns about supervised community treatment. I shall speak also to Amendments Nos. 41ZA and 50A.

Clause 26 will allow the responsible clinician to require a patient on a CTO to abstain from a particular conduct. I suggest that this provision is misplaced, possibly even dangerous. My concern, which has been very widely expressed, is that this particular condition of a CTO could make supervised community treatment into some form of psychiatric ASBO. I can do no better here than quote the Mental Health Act Commission, which has argued:

“Our serious concern would be that perhaps over time those clauses would start to be used in a way that would provide controlling arrangements, perhaps for young black people who are thought to be drug addicts and they are placed on what would be the equivalent of an Anti-Social Behaviour Order but run under the Mental Health Act”.

Part of the problem is that the Bill does not go into detail about what sort of conditions might be thought reasonable. One condition might be that the person must not go down to the pub; another might be that he must not be outside his house between certain hours; another might even be that he is not to leave his house at all and that he is to be kept there effectively under house arrest.

The potential for a very serious interference with a patient’s private life is considerable. There is no guidance in the Bill to say to the responsible clinician, “You must exercise your powers in line with public law principles and the patient’s convention rights under the Human Rights Act and the ECHR”. Of course the code of practice will be there, and I am sure that the Minister will point that fact out, but it will have a limited legal effect and cannot be thought sufficient to provide protection to patients in this regard.

There are other concerns as well. Carers' organisations are worried that they would be left to police these conditions. Even the National Forum for Assertive Outreach, which is a strong supporter of CTOs, has agreed that it would be morally wrong to place conditions on a CTO such as preventing a patient visiting a pub or begging.

This is, above all, a moral issue, but it is also about having clarity in the law and the dangers of a lack of clarity.

Let me turn to the other two amendments. These would allow a patient on a CTO to appeal to the mental health review tribunal against any of the conditions imposed. They would also allow a tribunal to recommend that any of the conditions could be varied or suspended when an application has been made to the tribunal for the patient to be discharged. In both cases, the tribunal would have the power to recommend that the responsible clinician should make changes to the conditions. If this is not done, the tribunal would have the power to order a further hearing.

We are dealing with a human rights issue of considerable significance. The Bill does not permit the tribunal to review the conditions imposed on a CTO—it can only discharge someone from a CTO altogether. In my submission, that is simply not acceptable. We can easily imagine a situation in which very restrictive conditions have been applied to a CTO—restrictions that are so great as to amount to a breach of the patient’s Article 5 rights. Why should the tribunal not be able to review them?

There could be a slightly different situation in which a patient does not dispute the need for a CTO but objects very much to a particular condition which might amount to a breach of a convention right. It could be argued that there is a breach of Article 13 in that there is no effective remedy available.

The remedy that the Minister will no doubt refer to is the independence of the approved mental health practitioner. I have considerable doubts about the degree to which the AMHP will be able to exercise true independence as a member of a clinical team which includes the responsible clinician. Are we really saying that proper training will do the trick? The Government clearly did not think that that would be enough when they published the 2004 draft Bill, which made provision for the tribunal to approve conditions and treatment plans. Again, the Minister may say that the code will ensure that the conditions are kept to the minimum necessary. However, the code will not prevent the imposition of a curfew or similar restrictions which, cumulatively, might amount to a deprivation of liberty.

There is a real lack of external safeguard, which contrasts with other areas where Article 8 of the convention is engaged, such as the Regulation of Investigatory Powers Act 2000 and the Prevention of Terrorism Act 2005. I am sure that the Minister will not disagree that restrictions on conduct should be proportionate and that conditions should not be imposed which collectively amount to a deprivation of liberty. The question is whether we can rest content if these requirements do not appear on the face of the statute. I do not believe that we can. Therefore, I beg to move.

My Lords, I support these amendments for all the reasons which have been so cogently expanded by the noble Earl. I just want to emphasise one part of what he said; namely, the legal issue which it seems to me arises if there is not a remedy before the mental health review tribunal. The analogy with the Prevention of Terrorism Act 2005 is good. It was recognised when control orders were introduced that it was essential that a due process be provided; that is, a judicial procedure which would be regarded as a remedy under Article 13 of the convention. That due process has been found to be useful. There have been cases—for example, R v E, in which judgment was received in the past few days—in which the judge reviewing the control order conditions declared that some of them were unlawful and therefore invalid, and a new control order had to be issued.

If the Government do not include the power to go to the mental health review tribunal for a review of community treatment order conditions, what will follow is inevitable. Someone, or a group of people, whose conditions are fairly stringent will apply to the High Court for judicial review on the grounds that they are disproportionate. That will result in an expensive and time-consuming set of litigation, which will eventually lead us to the conclusion that the Act is insufficient in the remedy it provides. It is far better to deal with that now than after a war of attrition through the courts.

My Lords, obviously these amendments reflect concerns raised in Committee and at Second Reading. The short-term phrase “psychiatric ASBOs” has been used, which we refute. I have concerns about the impact that the amendments would have and want to make it clear that the conditions attached to a community treatment order set a framework for the patient’s life in the community. One is not being defensive about this—that is what they are there to do. They make clear what the patient needs to do or not in order to manage his or her mental disorder and to remain stable.

As noble Lords have suggested, they will be greatly dependent on the professional views of the responsible clinician and the improved mental health practitioner because the conditions must relate to the patient’s mental disorder and its management. They must also be acceptable—even if not agreeable—to the patient at the outset. Inevitably, the establishment of the community treatment order will take place after discussion between the patient concerned and the clinician. It is hardly likely to work if the patient is not in a position to take advantage of the community treatment order. If the patient does not agree at least to try to keep to the conditions, what are the chances that supervised community treatment would succeed in the first place?

As set out, the conditions say that they may be specified. They are merely examples, which will not be appropriate for every case. They are not enforceable, with the exception of,

“a condition that the patient make himself available for examination”.

That is not their purpose. We do not propose to recall a patient to hospital merely because he has failed to comply with a condition. Of course, a failure to comply is a signal that something may be going wrong and, depending on the patient’s medical condition, recall to hospital may be necessary, but that will depend on the patient’s individual circumstances and is not automatic.

I stress that, just as the conditions in general are not mandatory, the fifth condition is likely to be appropriate for only a minority of patients. It is there for consideration where it is directly relevant to the patient’s mental disorder and will contribute to the success of the patient’s community treatment. If abstaining from a particular kind of conduct would help a patient to remain stable and if making it a condition of a community treatment order makes that abstention more achievable, the patient and others will benefit. It would be unacceptable to impose such a condition for any other reason, which will be made clear in the code of practice. Two professionals will be involved when a community treatment order is made; namely, the responsible clinician and the approved mental health practitioner, who must both agree to all the conditions before they can be set. That should surely ensure that there will not be arbitrary conditions imposed which cannot be justified.

I was asked about examples: in Committee, I quoted an example in which a patient was thought to be illegally taking drugs or consuming alcohol to adverse limits. That could impact on the overall treatment and condition of the patient and, in certain circumstances, it may be appropriate to lay such a condition. If noble Lords accept that, I know that they would then wish to bring the tribunal into play. We do not agree that that is the way forward. The tribunal of course is an independent judicial body, which considers the justification for a person’s continuing detention, guardianship or compulsory treatment order under the Act. But referring the issue to a tribunal would be to ask the tribunal to substitute its judgment about the best way to treat a patient for that of the professional, or professionals, responsible. We do not agree that that is a relevant decision for the tribunal.

It is interesting that the amendment does not propose that the tribunal set new conditions to substitute for those that the responsible clinician has sought to place in the case of a particular patient. We also think that these amendments might impose extra and unnecessary burdens on the tribunal, and extra bureaucracy on the tribunal and the responsible clinician. I stress again that, ultimately, the conditions laid out in new Section 17B “may” be specified, save for the condition,

“that the patient make himself available for examination”.

A failure to observe one of those conditions would not lead to the—

My Lords, let us suppose that one of the conditions under new Section 17B(3)(e) is that a person remains in their home from six o’clock in the evening until seven o’clock the following morning—the purpose being to prevent them from going out drinking, taking drugs or both. If the patient wishes to challenge that on the grounds that it is a disproportionate curfew in effect, which is exactly what has been done in the control order cases, what remedy would he have? What advice would the Government give to such a patient on how to proceed to have that condition rescinded on the grounds that it was disproportionate?

My Lords, these are all hypothetical examples, but my assumption in that circumstance would be that discussion would have taken place between the patient and the clinical team, including the responsible clinician and the approved mental health practitioner. If it becomes clear that the patient would find that unacceptable and is unlikely to abide by it, that would call into question the decision that a community treatment order would be suitable in that patient’s concern. That is the best answer I can give the noble Lord on that. We do not think that the kind of formality that is being proposed here, with the involvement of the tribunal, is the way forward. We believe that the way in which the provision is set out, whereby conditions may be satisfied, is a proportionate approach. I hope that the noble Earl on that basis will consider withdrawing his amendment.

My Lords, I am grateful to the Minister for his reply, although it was disappointing. My fear here is that the Government are in danger of entering a minefield, if they ignore the human rights traps which they have set themselves. We would do well to listen to the noble Lord, Lord Carlile, whose expertise on these issues is undoubted—and I am sorry that the Minister is unable to appreciate the risks that I see in having an open-ended provision for conditions to be attached without qualification. For the reasons I stated, I believe that that could lead to some very unfair situations arising.

I am extremely torn as to what to do, but I believe that the issue is sufficiently important for me to invite the House to give its opinion.

[Amendments Nos. 40 and 41 had been withdrawn from the Marshalled List.]

[Amendments Nos. 41ZA to 43 not moved.]

44: Clause 26 , page 19, line 24, at end insert “for a maximum of three years in total”

The noble Earl said: My Lords, this amendment is about time limits. One of the big worries that many of us have about CTOs is that, as formulated in the Bill, they are of indefinite duration. To my mind that is not acceptable. Let us just consider what kind of patient will be thought appropriate for supervised treatment in the community. It will typically be the patient who is coming to terms with his diagnosis and finding out which treatment is best for him. It will be someone who is trying to re-establish a life in the community, possibly after a lengthy period spent in a psychiatric institution. He will be in the throes of establishing a therapeutic relationship with the community treatment team and he will be starting to engage with the various community resources such as day centres and support services for employment and housing.

That profile of a typical CTO patient is all about making the transition from being an in-patient to living a normal life in the community. If CTOs are seen as transitional in this sense, then patients should not be subject to indefinite renewals of supervised community treatment once they are on it.

While a patient is on a CTO either he will get better or he won’t. If he has got better, he should be discharged. If someone’s condition has not improved to the extent that he can be discharged within a reasonable period—and the amendment proposes three years—that suggests that the CTO has failed to stabilise the patient’s health sufficiently. If that is the conclusion, then his treatment needs reviewing properly. A review of this sort should take place in hospital and need not involve a long stay. Once that has happened, it may be thought appropriate for supervised community treatment to occur on a slightly different basis from before.

In the Bill as published, setting aside the effect of the amendments passed earlier, the provisions for entry on to a CTO are very broad. A CTO can also be reviewed year on year without time limit. In those circumstances it may be very difficult for someone to prove that they no longer need to be placed on one, because there will always be an argument the other way. If the person’s mental health has improved, the argument will be that he ought to remain under the order to maintain the improvement. If he deteriorates, that could also be seen as justifying the need to continue the order. So a CTO validates itself either way.

Professor Genevra Richardson raised this concern with her memorable analogy of the lobster pot: a CTO will be relatively easy to get into but very difficult for a patient to get discharged from. A CTO can be renewed using the same broad grounds as those used to determine whether to place someone on a CTO in the first place. These are the reasons why, I believe, the aggregate period over which a CTO may be extended, including renewals, should be limited to three years. In other words, any extension of supervised community treatment after three years should require a new assessment under the Act. The amendment is in tune with the recommendation of the joint scrutiny committee, which proposed something very similar. Three years is a period which I am advised is sensible and reasonable for achieving the therapeutic objectives inherent in a CTO without restricting a person’s liberty in an unacceptable, open-ended way. I expect that the Minister has been briefed to resist the idea but I hope that, at the very least, he will wish to take it away and reflect on it. I beg to move.

My Lords, I am grateful to the noble Earl, Lord Howe, for his amendment, which seeks to set a time limit on the duration of a community treatment order. He is right to say that the Bill provides that a CTO can last six months initially, can be extended for a further six months, then for a further year and so on. I hope that I can reassure noble Lords about the possibility that patients will never get off supervised community treatment and can remain on community treatment orders indefinitely. I very much hope, as do the Government, that community treatment orders and supervised community treatment will enable many patients to be discharged as quickly as possible. The very basis of supervised community treatment can be seen as a positive move towards helping patients who originally met the criteria but, because of the impact of supervised community treatment, will no longer meet them and can be discharged completely. There is a clear, laid-down process for extending a community treatment order, which requires examination of the patient and a report to the hospital managers. There are safeguards in place for the patient.

I understand the lobster pot analogy used by Professor Richardson, concerning patients who would find it very hard to get out of non-resident treatment. I share the view, as I have already implied, that supervised community treatment should not last indefinitely, but I am not convinced that the amendment is the right way to go about it. Any time limit that we might set is inevitably arbitrary. The noble Earl might have chosen two years or four years; it takes no account of any individual circumstances or of the patient’s clinical condition. I suggest to the noble Earl that there is the danger of a “cliff-edge” approach, and the cut-off date might create that.

It might leave the responsible clinician in a situation of a perverse incentive, where a patient would have to be discharged on a certain date, irrespective of their clinical need or whether they are able to manage in the community without the support that the community treatment order provides. Mental health practitioners might be in a very difficult position if they had to stand by knowing that a patient was likely to relapse and the only action that they could take if they were not prepared to, or it would not be right to, take the risk of discharging the patient would be to apply to detain the patient once more and the patient would have to come back into hospital. I understand what the noble Earl is seeking to do here, but there is a risk that by putting three years into legislation it could work the other way. It might be perceived as the norm, and there might be an expectation that patients remain on supervised community treatment until their three years are up.

We believe that the construct of the Bill, with the safeguards, when the question of renewing the community treatment order is being considered, is the best way to deal with the issue rather than having an arbitrary time limit. Noble Lords should remember that a responsible clinician can discharge a patient at any time, and they must do so if the patient no longer meets the criteria for supervised community treatment as laid out in the Bill. That question has to be explicitly reviewed every time an extension of the community treatment order is considered. The patient can also apply to the tribunal for discharge as soon as a supervised community treatment order begins, once during each period for which the CTO is extended, and again if the CTO is revoked.

In conclusion, although I fully understand what the noble Earl, Lord Howe, seeks to do, the conditions and safeguards in the Bill serve the purpose better than a time limit, which, of necessity, is bound to be arbitrary.

My Lords, I thank the Minister for his reply and take note of his comments. He described the amendment as a “cliff edge approach”. I do not share that analysis. The amendment would certainly not oblige a clinician to discharge a patient. The point is that it would leave open the option of a fresh assessment for the patient. In my view, that is only fair to the patient if, after three years, his condition has shown insufficient signs of improvement. We are seeking to avoid a situation where too few questions are asked. Once someone is on a CTO, it is very easy for a clinician to renew it with insufficient thought about whether it is the right thing to do therapeutically. Nevertheless, there is not going to be agreement between me and the Minister on this. It perhaps needs to be tested in the field before we see whether an open-ended arrangement is sensible and right. Noting the Minister’s objections, and with my own reservations and doubts on the record, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 45 had been withdrawn from the Marshalled List.]

45A: Clause 26 , page 19, line 31, leave out from “report” to end of line 32 and insert “, in the prescribed form, that in his opinion the relevant conditions are met”

On Question, amendment agreed to.

[Amendment No. 46 had been withdrawn from the Marshalled List.]

46A: Clause 26 , page 19, line 32, at end insert—

“(4A) The responsible clinician may not furnish a report to the managers unless—

(a) an approved mental health professional states in writing— (i) that he agrees with the opinion of the responsible clinician that the relevant conditions are met; (ii) that it is appropriate to make the order; and (b) if the responsible clinician is not a medical practitioner, a medical practitioner, as provided in section 17F(4A), has examined the patient and as a result of the medical examination it appears that the conditions mentioned in subsection (6) are satisfied in respect of the patient.”

47: Clause 26 , page 19, line 40, leave out from beginning to end of line 1 on page 20 and insert—

“(b) except where a patient is detained under Part 3 of this Act (a patient concerned in criminal proceedings or under sentence), the patient’s ability to make decisions about the provision of medical treatment is significantly impaired because of his mental disorder; (c) it is necessary for the protection of others from serious harm that he should receive treatment; (d) subject to his being liable to be recalled to hospital for medical treatment such treatment can be provided without his continuing to be detained in a hospital and it cannot be provided unless he is liable to be recalled to hospital; (e) the patient has on at least one occasion previous to the present admission under section 3 refused to accept medical treatment for a mental disorder; and (i) when appropriate medical treatment has been refused there has been a significant relapse in his mental or physical condition justifying compulsory admission to hospital; and (ii) medical treatment following compulsory admission alleviated or prevented a deterioration in his condition; (f) appropriate medical treatment is available for him.”

On Question, amendments agreed to.

[Amendment No. 48 not moved.]

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

[Amendments Nos. 49 to 50A not moved.]

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

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

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

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

(a) visit and interview and, if he is a registered medical practitioner, examine in private that patient; (b) require the production of and inspect any records relating to the treatment and care of that patient, and (c) raise any concerns with the appropriate authority.””

The noble Lord said: My Lords, I will speak to Amendments Nos. 51 and 52. The Mental Health Act Commission is primarily a visitorial body, whose members meet patients detained under the Act and keep under review the powers and duties of the 1983 Act. It is a modern incarnation of an honourable, or at least relatively honourable, tradition of such bodies, stretching back to the seventh Earl of Shaftesbury’s lunacy commissioners of the mid-19th century.

In some ways, the lunacy commissioners had an easier task than that faced by the Mental Health Act Commission today. The landscape that they surveyed was largely one of asylums and private madhouses, within which most patients were subject to the legal powers that they were concerned to report on. But the increasing emphasis throughout the 20th century, rightly, on informal treatment has meant that most patients passing through the hospital systems today are not formally subject to legal powers and are out of the reach of the Mental Health Act Commission.

I am not seeking to make the point that the Mental Health Act Commission should have under its purview all mental health services. Indeed, in discussions with the Government on their plans to merge the Mental Health Act Commission with other health and social care inspectorates, I have argued consistently for the protection of a visitorial role, with a primary focus on those who are deprived of liberty in the psychiatric system.

The Mental Health Act Commission has been saying to various Governments for more than 20 years that not everyone who is deprived of liberty is subject to the formal powers of the 1983 Act. Our observations were confirmed by the European court rulings that have led to the so-called Bournewood proposals in this Bill. Even if Parliament accepts those proposals, and monitoring is established for the new legal framework for authorising deprivation of liberty, I guarantee to this House that there will still be patients who are subject to conditions amounting to deprivation of liberty without any formal powers and safeguards being invoked.

In Committee, I remarked on the dreadful irony that the safeguard of Mental Health Act Commission visiting extends to those who are lawfully detained but not to those who are unlawfully detained. The law at present appears to require Mental Health Act commissioners to walk past those patients who may be incarcerated unlawfully in dirty, cell-like rooms on the grounds that formal powers under the 1983 Act have not been applied to deprive those patients of their liberty in a lawful manner. This amendment would simply allow the Mental Health Act Commission to have legitimate access to patients and records and to raise its concerns formally when it encounters worrying situations concerning informal patients or patients subject to the Bournewood provisions. I emphasise now, as I did in Committee, that this is not a call for extra resources, but a simple request that the Mental Health Act Commission be enabled to raise questions about patients that its commissioners cannot but notice while undertaking their current statutory duties.

I have revised my amendment since Committee, having taken account of the Government’s correct concern at the earlier drafting, which implied that a statutory body could “keep under review” the unlawful treatment of patients. I have rephrased the amendment to be more specific about what the statutory powers should be when the Mental Health Act Commission encounters de facto detained patients.

In Committee, I said in response to the Minister that I could not accept his assurance that legal safeguards would be addressed in future legislation to merge current health and social care inspectorates. I cannot see why we should not take this opportunity to amend the commission’s remit now and provide some protections in the interim period, even if these measures will eventually be overtaken by events. The Minister knows well that existing powers under the 1983 Act enable the commission’s remit to be extended in the way that I suggest here. He will also know that our request for an extension of similar effect has been extant since 1985.

I believe that I have the support of many noble friends in this House and I hope that the Minister will be able to respond to my amendment in a constructive manner. I beg to move.

My Lords, the noble Lord, Lord Patel, argued as persuasively for this amendment today as he did in Committee for a slightly different amendment. However, he will be glad to hear that we have some sympathy with the amendment, although there are a couple of important things to bear in mind.

First, as the noble Lord noted, there is current work to establish a new single regulator in England replacing the Mental Health Act Commission, the Healthcare Commission and the Commission for Social Care Inspection. We argue that the issue in the amendment of the noble Lord, Lord Patel, sits comfortably with that work and will be considered as part of the creation of the new regulator during 2008.

Secondly, the amendment may cut across monitoring proposals for the Bournewood safeguards. The statement of intent that we have published outlines how the monitoring function will be conferred on the three existing inspectorates in England, including the Mental Health Act Commission. After the establishment of the new single regulator, the function would transfer to that body. We would not wish to establish powers that might not dovetail with that.

The amendment is unnecessary because provision to achieve the intention behind it is already contained in the Mental Health Act 1983. The Act gives the Secretary of State and the National Assembly for Wales a duty to keep under review the powers and duties relating to detained patients and directs her to delegate that duty to the Mental Health Act Commission. Section 121(4) allows the Secretary of State, following a request from or after consultation with the commission, and after any other consultation that she sees fit, to direct the commission to keep under review the care and treatment of any patients not liable to be detained.

However, I can give noble Lords a commitment that we will explore making a direction under Section 121(4). This will be no quick fix, because we are required to carry out a consultation and we would need to have discussions with colleagues in the Welsh Assembly Government to explore the options available there. Any future work in respect of Wales, including a formal consultation, would of course require the agreement of Welsh Ministers. However, on that basis and with that firm commitment, I invite the noble Lord to withdraw his amendment.

My Lords, on a pleasant note, I thank the Minister for agreeing to look at this further and for recognising that we can address these issues using the existing powers of the 1983 Act. She will be aware that the Mental Health Act Commission has submitted a formal request for existing powers to be used to put a stop to the arbitrary limitations in relation to its inability to address de facto detained patients. I am keen to work with the Government and I await their response to the request that we have already submitted. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 52 and 53 not moved.]

54: Schedule 3, page 60, line 14, leave out paragraph 35 and insert—

“Extent 35 (1) In section 146 (application to Scotland), omit the words from “128” to “guardianship)”.

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

The noble Baroness said: My Lords, this group of amendments relates to cross-border issues. The majority of them follow from changes made in Scotland which amend the Mental Health Act 1983; the others seek to clarify the position of patients granted escorted leave from elsewhere in the UK or from the Channel Islands or the Isle of Man who wish to visit England and Wales.

Amendments Nos. 54, 62 to 65, 90 to 93, 96 and 97 have been laid because of amendments brought forward by the Scottish Executive, in the consideration of the Adult Support and Protection (Scotland) Bill, which amend the Mental Health Act 1983 in relation to Scotland. The ASP Bill was passed by the Scottish Parliament on 15 February; it is expected to receive Royal Assent in March 2007 and to come into force in spring 2008. It will repeal Sections 88 and 128 and remove the references to these provisions in Section 146 of the Mental Health Act 1983, but only as a matter of Scottish law. These amendments reflect the changes made in Scotland to the Mental Health Act 1983 and apply them to the rest of the UK. Their effect will not have a practical impact on the care of patients in Scotland or in the rest of the UK; they simply align the law in Scotland and the law in the rest of the UK. I commend the amendments to your Lordships’ House.

Amendments Nos. 61 and 66 clarify the position of patients on escorted leave in England and Wales from elsewhere in the UK or from the Channel Islands or the Isle of Man, and the legal powers of their escorts. Under Section 17 of the 1983 Act, the clinician giving leave to a detained patient may determine that it is necessary in a patient’s own interests, or for the protection of others, that the patient remains in custody or be escorted during a leave of absence. Section 137 provides that a patient granted escorted leave in England and Wales is deemed to be in the legal custody of their escort. Section 138 provides for the retaking of a patient who escapes from such lawful custody.

Amendment No 61, by adding two subsections to Section 17, will engage these provisions for patients on escorted leave in England and Wales from other jurisdictions. The effect is to put beyond doubt that a patient who is granted leave in another jurisdiction, under a provision corresponding to Section 17, may be conveyed, kept in custody or detained by their escort while in England and Wales and retaken in the event that they escape. This will benefit patients from other jurisdictions, particularly those in hospitals outside England and Wales whose relatives live in England and Wales. A clinician is more likely to grant escorted leave into England and Wales if the patient’s health and safety and the health and safety of others can be protected and the legal position is clear. Other jurisdictions are considering similar legislation to ensure that a patient on escorted leave from a hospital in England and Wales is deemed to be in legal custody and that there is a power to retake a patient who escapes from lawful custody.

Amendment No. 66 is consequential. It amends regulations that apply to people who may be taken into custody under Scottish legislation so that regulations may be made in respect of patients on leave in Scotland from another jurisdiction. I beg to move.

My Lords, my noble friend Lady Carnegy, who unfortunately cannot be here, has asked me to express her thanks to the Minister for the letter that she kindly wrote on 11 January in response to a point made on these issues by my noble friend on 10 January.

My noble friend has, however, asked me to put a question. Let us suppose that a patient is detained north of the Border under Scottish law and a proposal is made for that patient to be transferred nearer to his or her family south of the Border. My noble friend’s fear is that, unless the basis on which the patient is detained in Scotland accords with English law, it will not be possible to transfer that patient because, were they to be transferred south of the Border, they would have to be released, which would not of course be satisfactory. Does not a practical problem arise out of the disparity between Scottish law and the Bill?

My Lords, there is the potential in theory for a patient to meet the criteria for compulsion in one country and not another. In practice, however, that is very unlikely to arise. Prior to any transfer taking place, there will be discussions between the hospital where the patient is being treated and the hospital to which they wish to transfer. It would be questionable whether, as a matter of law, the managers of a hospital in any jurisdiction could agree to accept, as a detained patient, a person who they may have reason to think would not meet the criteria for detention. I trust that that clarifies the position for the noble Earl.

On Question, amendment agreed to.

My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, I suggest that Report stage begin again not before 8.31 pm.

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