My Lords, I beg to move that the Commons amendments be now considered.
Moved accordingly, and, on Question, Motion agreed to.
[The page and line references are to Bill 76 as first printed for the Lords.]
1: Clause 3, page 2, leave out lines 22 to 30 and insert-
“(3) Dependence on alcohol or drugs is not considered to be a disorder or disability of the mind for the purposes of subsection (2) above.”
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1. There is no doubt that, as befitting a Bill which deals with such important subjects, it has been the subject of vigorous debate, both in this House and in the other place. In this House we have had debates which have been informed by the special experience and expertise that noble Lords can bring to bear on this and on many other subjects.
There is no doubt in my mind that the Bill has benefited from those debates. The Bill that has been sent back to us by the other place is stronger than it would have been without the contribution of this House in identifying and getting to the heart of the issues which are of the most importance. The other place may not have agreed with this House on all those issues, but it is plain that the debate in your Lordships’ House has provided a very important context for the other place’s consideration. I have no doubt that the Bill is the better for it.
As one would expect, the meaning of mental disorder was one of those critical issues identified by your Lordships’ House. The simplified definition itself met with considerable support. Debate concentrated instead on what, if anything, should be excluded from that definition. As noble Lords will recall, there are three exclusions from the definition of mental disorder in Section 1 of the Mental Health Act as it stands: “promiscuity or other immoral conduct”, “sexual deviancy” and “dependence on alcohol or drugs”. The Bill, as first introduced, removed the first two and reworded the third.
On Report, this House replaced that single exclusion with four new exclusions for: substance misuse; sexual identity or orientation; commission, or likely commission, of illegal or disorderly acts; and cultural, religious or political beliefs. This amendment was reversed by the House of Commons.
In introducing his amendment on Report, the noble Earl, Lord Howe, said:
“There needs to be some limit to guard against the inappropriate use of the clinician’s power of detention. Without such limits, the powers are capable of being used, even in a well-intentioned way, as a form of social control”.—[Official Report, 19/2/07; col. 906.]
The Government could not agree more. We believe that those limits are to be found in the Act—in the criteria for detention and in the safeguards which are themselves strengthened by the Bill. But I fully accept that the noble Earl, Lord Howe, spoke for all Members of the House when he went on to say:
“The law should make the position clear. It is not enough for a person to be odd, eccentric or a social misfit; the only legal grounds for compulsory detention are an underlying mental health diagnosis”.—[Official Report, 19/2/07; col. 907.]
Again, we agree. The law should make the position clear; in our view it does. The Bill does not permit any compulsory intervention except where the relevant criteria are met. Those criteria cannot be met except on the basis of a disability or disorder of the mind.
Although not drafted in that way, the amendment which the other place rejected contained two types of exclusions—substantive exclusions for conditions which are recognised mental disorders and others whose effect is declaratory. The proposal to exclude substance misuse was at least in part an example of the former. It has become clear in the course of debate here and in the other place that “substance misuse” was intended, in the words of the honourable Member for East Worthing and Shoreham, Mr Tim Loughton, to ensure that,
“neither the binge drinker nor the casual consumer of drugs is considered a case for compulsion”.—[Official Report, Commons, 19/6/07; col. 1326.]
But there is no such exclusion now, and no reason to believe that such people are being detained. On the other hand, if we did have an exclusion there is a risk that we might prevent the use of the Act in those rare cases where acute intoxication is so severe that detention is a legitimate clinical response.
The noble Earl’s amendment, which the other place rejected, dealt more with things that are simply not recognised mental disorders. Sexual orientation is not a mental disorder; being homosexual or bisexual does not make one mentally disordered, any more than being heterosexual does. Holding religious, political or cultural beliefs does not, of itself, make one mentally disordered; nor does committing a crime. It follows that none of these matters falls within the definition of mental disorder in the Act; indeed, to say so in the Act would be legally otiose.
Strong arguments have been advanced for exclusions. Perhaps I should test the patience of the House by going through them. The first is that, by not changing the Act, we will encourage clinicians to change their practice for the worse. I do not see the logic of that, or any evidence for it; nor is it consistent with the ethical and professional responsibilities of those who will have the responsibility for this under the law. Secondly, it has been argued that the list of exclusions will make psychiatrists reflect more closely on how their own values and experience influence their decisions. That is, of course, a good thing to encourage; it should be central to clinical practice in mental health services. However, the idea that this kind of careful practice will not happen without a few strictly unnecessary words in an Act, or that those words will create a sea change in attitudes, stretches credulity.
The same is true of the third argument—I recognise that this is a very important matter—that those words will reassure particularly those in black and minority ethnic communities, who fear that the Act may be misused to their detriment or to that of their families. I have met representatives of black communities and the black churches several times, and I know just how strongly they feel about this matter. We do not know why there are such markedly higher rates of diagnosis of certain conditions in people from many black and minority ethnic communities, or why they are much more likely to be admitted to hospital or detained under the Act. None of us has seen convincing research. Research to date has been far better at describing than explaining the situation. However, although we may not know why it happens, we do know that it does. Nor are we in any doubt that steps can and should be taken to change it. That is why this Government established their Delivering Race Equality programme, announced in December 2005 alongside their response to the inquiry into the death of David “Rocky” Bennett.
A fourth argument made in favour of the exclusions is that they would protect against individual psychiatrists extending the boundaries of mental disorder, encouraged by the fact that the Bill relies more on their subjective opinions. The Bill does nothing of the sort, but, even if it did, exclusions would not help. If some psychiatrists were tempted to act in that way, they would be arguing not for new mental disorders but about whether or not certain things were manifestations of established mental disorders. A fifth argument is that the exclusions are needed as a protection against Governments yet to come. The noble Earl, Lord Howe, was good enough to say on Report that this country is not Soviet Russia and is in no danger of being like it. However, once we get to the point where the rule of law has broken down, the wording of the law is not likely to save us. Another argument simply questioned the harm of the exclusions. It is not disputed that mental disorders can manifest themselves in the form of religious or political views, or in actions that break the criminal law. As the noble Earl, Lord Howe, said on Report, the key test is whether there is an underlying mental disorder, which may exhibit itself in any of the behaviours listed in the amendment.
There is therefore a risk that the exclusions would have no legal effect. They might, however, create room for doubt about what is and is not meant. That is not meant as a criticism of those who drafted or supported the noble Earl’s amendment. I hope that noble Lords will understand from my response that I quite understand the importance of the principles that inform the debate on exclusions, but we have concerns about the practical impact that those will have.
The noble Baroness, Lady Barker, has tabled an amendment dealing with discrimination, which from my experience of debating the Bill with noble Lords is a critical area of concern. The Government will support it. It deals with an important matter. The noble Baroness has drafted it in a way that allows us to make it clear to practitioners that this is an important principle but does not cause a problem in terms of the original drafting of the exclusions. I thank noble Lords for the constructive way in which we have debated the matter.
Moved, That the House do agree with the Commons in their Amendment No. 1.—(Lord Hunt of Kings Heath.)
1A: Page 5, line 8, at end insert-
“(aa) respect for diversity generally including, in particular, diversity of religion, culture and sexual orientation (within the meaning of section 35 of the Equality Act 2006),”
The noble Baroness said: My Lords, the Minister began by talking about how the debates in this House had had a great influence on the debates that subsequently followed in another place. That is true. However, this amendment and several of those that will follow this afternoon reflect the fact that there remains between the two Houses and between the Government and the whole of the Opposition some fundamental disagreement about the legislation’s purpose and application.
To go back to arguments held in this House and another place recently about principles in mental health legislation and about exclusions, we still believe that overall the Bill significantly changes the balance of the Mental Health Act 1983 away from the rights and protection of patients, which we believe are in the interests of public safety, towards giving greater power towards clinicians. The amendment moved at an earlier stage by the noble Earl, Lord Howe, was an attempt to clarify again the purpose of mental health legislation. With that amendment and with this one we were following statements made by Professor Genevra Richardson’s expert committee and by the Mental Health Act Commission 2004, which said that,
“for the law to be of value—to patients, State administrators, mental health professionals, the police, the courts or the Tribunal—its meaning cannot rest upon the discretion of those working within its framework. We do not find it difficult to envisage the inappropriate use, however well meant, of mental health legislation for non-medical purposes of social control”.
That has been the concern at the heart of the debates.
The debates in this House were more to the point than those in another place. I must confess that I found the debates on these matters in another place at times almost distressing. The flippancy with which some Members of another place addressed the underlying issues was not edifying. The Minister was right to pay tribute to those of us in this House who, albeit sometimes in inelegant ways, have attempted to find a way to give expression to the principles to which we subscribe not only in this House and in legislation, but which are commonly held throughout society. It remains a concern to me that there has been so much resistance from a very small section of the mental health profession who feel unable to subscribe to a set of standards that are now common in practically every area of life. Commercial companies now have long lists of equality statements. Every public authority has a list of duties. I do not understand why this should cause such turmoil to some members of the psychiatric profession.
We have had some rather spurious arguments during our debates. Why it should prove to be impossible—the word that has been used—for parliamentary counsel to draft a list of exclusions for this Parliament is difficult to understand. We have quoted exemplary legislation from around the world—from Scotland, New South Wales, Victoria and New Zealand—in which there are lists of exclusions that go with definitions of mental health. They are clearly understood and have not posed the major problems that might enable a legal challenge by people who wish to evade compulsory detention, as the Government suggested might happen.
Inevitably, at this stage of a Bill, we arrive at a point where principle goes against the tough daylight of pragmatism. I say that in order to explain to the many people outside, who have followed our debates with great intensity and great care, why those of us who believe this to be a matter of such importance will now sign up to something which we acknowledge is less than satisfactory, which it is. We believe that we will be making a statement, which, as the Minister said, may be declaratory, about what mental health legislation should be in our society now and that society should treat with decency and dignity people whose behaviour is different and, sometimes, difficult and challenging.
The amendment standing in my name, which I understand has support from around the House, is important, but it is not perfect. For example, it does not deal with the matters raised by the Government at the beginning of the passage of the Bill about paraphilia; nor does it deal with the important issue of belief. In this day and age, how people choose to express their beliefs is becoming increasingly important for society and for mental health professionals. We already have people detained under mental health legislation, at least in part because of their beliefs.
I believe that it is important for us to state that there will be exclusions for people on the basis of their religious beliefs and sexual orientation. Why? This country remains part of the tradition of modernisation of mental health legislation. We led the way and we continue to have a part to play in setting standards for ourselves. These are recognised around the world and, for the past 100 years or so, have changed how people with mental health problems have been viewed and how their rights have been extended.
Some of the debates in another place were disappointing in that they were conducted by people who had clearly forgotten some of the many abuses in the mental health services in this country, where there are still people who were subjected in the past to wrongful application of compulsory mental health treatment. I meet some of them in the course of my work and, although they are now very old, one does not have to be a professional to see the long and lingering damage that a misapplication of mental health treatment can do to people just because they happen to be different.
Imperfect though this amendment is, I believe that it is important not only as a declaratory statement but in practice, if only to serve to say to mental health professionals that their judgment will continue to be subject to scrutiny. I say to the noble Lord, Lord Rix, as he disappears, that it was in part his early speeches in our debate about the lack of exclusion for people with learning disabilities that fired up those of us who kept going in the face of opposition from the Government.
This is an imperfect amendment to a Bill that is certainly better than it was when it came to this House initially. The Bill is not the step forward for people with mental health problems that we all wanted, it is not the Bill that we needed and it will not be the legislation that we need, but I hope that by the end of today, with the addition of amendments like this, we will have clarified the situation for practitioners who in the future under this legislation are going to be far more accountable for their actions and decision-making than ever before. I hope that this House will yet again have proved that it serves a very important purpose in sticking up for those people who do not have a voice—in this case mental health patients. I beg to move.
Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 1, Amendment No. 1A.—(Baroness Barker.)
My Lords, perhaps I could begin by posing two detailed questions about Amendment No. 1A and its precise effects. My concern, which perhaps the Minister, as well as the noble Baroness, would like to comment on, is whether in deciding if someone should be detained or not, the responsible clinician needs to consider whether, let us say, an expression of religious belief is a sign of an underlying mental disorder. Does the amendment mean that the patient could appeal against an order on the grounds that he was being detained because of his religious belief rather than a mental disorder? That was one of the key points that the earlier amendment was trying to get at and I would like some reassurance that this amendment, limited as it is, would get us into the same kind of territory.
This amendment is certainly to be supported although it is, as we know, a pale shadow of the amendment that was passed by your Lordships at an earlier stage. The Government said that the previous amendment was absolutely unacceptable to them. However, the point of it can be expressed very simply. It was to signal in statute a clear warning to clinicians about making wrong assumptions about the presence of a mental disorder in a patient where no such disorder actually exists.
Contrary to the frequently expressed views of Ministers, this was not an outlandish proposal. The Bill itself contains an exclusion relating to drug and alcohol dependency. What is the point of that exclusion? It is to ensure that, before detaining somebody under the Mental Health Act, the clinician asks himself whether the behaviour of the person before him is attributable to something other than a mental illness. These concerns matter a great deal, and not just in the context of drug and alcohol dependency; they matter in particular to black and ethnic minority patients who, as the noble Lord, Lord Hunt, said, have a deep-seated and, many would say, justified fear of what the mental health system may do to them. They fear that the system is loaded against them and that clinicians who do not understand black culture and some of the religious practices that black people engage in may misinterpret the behaviour that is often integral to those practices and cultures. Influential and highly respected doctors assert that there is no institutional racism in mental health services. I do not know whether that view is right or wrong. I hope that it is right but, even if it is, the reality that we have to deal with—the one that matters—is the perception among black people that institutional racism does exist.
We need to do something that is more than just a gesture if we are to have any hope of assuaging those concerns. That is why this limited amendment, welcome as it is, needs to be accompanied by full and appropriate explanatory guidance in the code of practice. It is not just a case of saying in the guidance, “Do not discriminate unfairly against black people”. It is necessary to set out what actually goes on in clinical practice in order to explain why this provision exists and why it is thought to be important. Some of the disparities between the treatment of black patients and that of white patients cannot be explained merely by genetic differences. Rates of detention for defined groups of black people have been recorded as being up to 18 times the national average. Rates of prescribing of old-fashioned anti-psychotics are greater for black people than for whites, and at higher doses than they should have in relation to their different metabolism. The rates of referral for psychotherapy are much lower for blacks than for whites. Why is that? Clinicians need to understand what some of their number are doing in the name of medical treatment and ask themselves the right questions before they detain someone under compulsion.
These are the reasons why I and other noble Lords were so exercised about the amendment that we passed on Report, and they are why I hope that the Minister will agree to include within the code of practice a section that clearly sets out Parliament’s concern on these matters and how doctors should respond to that concern when exercising their clinical judgment.
My Lords, I support the amendment moved by the noble Baroness, Lady Barker. Many in this House and the other place have spoken passionately and at great length about the inequalities that exist for certain minority ethnic groups in our mental health system; the Minister and the noble Earl, Lord Howe, have said the same. Regrettably, I cannot see what we have done in all our discussions and amendments to the Bill that will even begin to rectify or alleviate the situation. Despite our best efforts, there are no principles set out in the Bill, something that I and many others would have liked to see. That would have been one small step towards reassuring those in the black and minority ethnic communities, along with all those delivering mental health services, that we are serious about addressing these failings. Although the amendment before us falls far short of that, it is essential, as it will go some way towards ensuring that the Act is applied with due concern for non-discriminatory principles regarding religion, culture and sexual orientation, although the issue about belief is missing.
I want to raise one specific issue to follow on from the noble Earl, Lord Howe. We are all aware that, under the Race Relations (Amendment) Act 2000, all proposed legislation on equality has to undergo a race equality impact assessment—an REIA—to pre-empt the possibility that the proposed policy could affect some racial groups unfavourably. While it is true that the Government have published an REIA on the Bill, we know from the published letter from the Commission for Racial Equality to the Department of Health that the CRE has consistently raised grave reservations about the adequacy of this assessment. The letter says:
“At each stage of the process of discussion between the Commission and the Department, the Commission has made the Department of Health aware of its concerns regarding the REIA and its potential impact upon the provisions of the Bill”.
The commission identifies a number of these concerns, not least the wholesale absence of specific service data, the distinct lack of monitoring and the failure to address potential adverse impacts arising from changes to the Mental Health Act. The commission’s letter also says:
“The Commission’s considered view is that the Department has not adequately considered the impact of the proposals in line with the duty to have due regard to eliminate unlawful discrimination, promote equality of opportunity and good race relations”.
It is true that Department of Health officials began a process of consultation on the REIA. However, due to a lack of time and, I believe, poor planning, this resulted in a number of major disagreements, not least about the process of consultation and engagement with black and minority ethnic communities and key agencies. In an attempt to resolve the situation and to move matters forward, the Department of Health established an advisory group, consisting of a number of eminent professionals, to advise on the final REIA. I was asked to chair that group, and I must declare that interest.
Despite the lack of time, the group produced a series of important recommendations that, if taken into proper account in the final published REIA, would have gone a long way towards reassuring communities and services that the department was serious about addressing these issues. Suffice it to say that many of our views and recommendations—one of which was to establish a royal commission—were not taken into account when the final REIA was published.
These matters are well known to many noble Lords, but it has only recently come to light that the Commission for Racial Equality had also expressed serious concerns. I have to wonder whether, had we known of the CRE letter earlier, this would have affected our deliberations or, indeed, those in the other place.
However, we are where we are. It would be helpful if the Minister reaffirmed for the record that, notwithstanding the criticisms of the CRE, it is the intention of the Government that this Act should not have discriminatory effects on racial—or, for that matter, any other—grounds. It is for these reasons that I support this amendment, although the matter is unlikely to end here. There is a great deal of concern about these matters among communities and professionals. I am well aware that the National BME Mental Health Network, which consists of carers, service users, communities and eminent mental health professionals, will be actively campaigning for a judicial review on these very issues.
I believe that we need a national committee of inquiry, if not a royal commission, in order to determine once and for all what lies behind the significant and worrying disproportion and differing treatment of black and minority ethnic patients, and to put to an end the mischief making of some academics in the field, who are attempting to discredit the whole concept of institutional racism.
I am conscious of the time, but I am also aware that this may be our last opportunity to raise these important issues in relation to the Bill. In supporting the amendment, I hope that I make my view clear that much more action is needed. We need to know that something will finally be done to address the scandalous situation of black and minority ethnic patients, their carers and families.
My Lords, I am grateful to those noble Lords who have spoken in this important debate. I say to the noble Baroness, Lady Barker, that from the start of our debate there have clearly been some fundamental disagreements. The purpose of our deliberations has been, in a sense, to try to find a way through in order to ensure that those issues are fully debated. In a considerable number of cases, changes have been made to the legislation to reflect some of those concerns. I do not agree with the noble Baroness about the shift of balance from the individual patient to the clinician. The safeguards contained within the legislation are strong and will ensure that that does not happen.
I accept that, in the context of the law, the practice of practitioners and clinicians will be critical. It is incumbent on the Department of Health to ensure as effective a programme as possible, so that clinicians understand the law as it has been amended and the practice that is required.
The Bill is well intentioned and has been improved. The agreement that we reached in your Lordships’ House on how to ensure that principles appeared on the face of the Bill, albeit linked to the code of practice, was an acceptable way of ensuring that the legislation was as practicable as possible and reflected the clear desire of many stakeholders to see principles on the face of the Bill. That is why I very much welcome the noble Baroness’s amendment, which seeks to improve and enhance that statement of principles.
There has been some debate about why in some jurisdictions it is possible to put exclusions on the face of legislation and why in others it is not. That is rather like our debates on House of Lords reform, where it is possible to find legislatures that have different experiences. It is possible to trawl the world to find examples that support one’s own case—for instance, in a province of Canada it is not the norm to have such exclusions—but, frankly, that is not a helpful exercise, particularly at this very late stage of debate. Jurisdictions are different. The strong advice that we have received is that what is proposed would not be considered good law in the tradition of this Parliament and its jurisdiction because of the risk, to which I have referred, of confusion and misinterpretation by professionals. One of the key points in our debates has been to ensure that professionals in the field, who deal with incredibly difficult challenges on a daily basis, are as clear as possible as to what the law is.
The noble Earl, Lord Howe, and the noble Baroness, Lady Barker, referred to the advice and guidance that would be given to practitioners in this area. This is already touched on in the illustrative code for England. Paragraph 1B.5 states:
“Disordered beliefs are sometimes symptoms of clinically recognised mental disorders, but in the absence of such a disorder no-one may be considered to be mentally disordered solely because of their political or cultural beliefs, values or opinions … A person’s sexual orientation does not, by itself, indicate the presence or absence of mental disorder; nor does involvement, or likely involvement, in illegal, anti-social or ‘immoral’ behaviour. Beliefs, behaviours or actions which do not result from a disorder or disability of the mind are not a basis for determining that any of the conditions is met, even if they appear unusual or cause other people alarm or distress”.
I realise that there is much more to be said. We will be looking seriously at the drafting and seeking ideas on how it can be improved. The codes, of course, will be subject to formal consultation, both in England and in Wales. I have no doubt that the amendment of the noble Baroness, Lady Barker, will help to set an appropriate context for the implementation of the Act as informed by the code. I shall invite my successor to commit to a willingness to engage with individual noble Lords on the code because clearly, from the quality of our debates, they have a great deal to offer.
The answer to the question of the noble Earl, Lord Howe, about an appeal is implied in what I read out of what is already in the draft code. Clearly a patient can appeal—he will still be able to—and argue before a tribunal that they do not have a mental disorder and that their religious beliefs have been mistaken for disorder. There is no doubt about that.
I well understand the passion with which noble Lords referred to their concerns about the disproportionate detention rates of people from black and minority ethnic communities, although the reasons for that are not established. I note the comments of the noble Lord, Lord Patel, on that matter. It is entirely understandable that many people in these communities believe, from their own experience or that of others, that at least part of the explanation lies in the legislation being at best applied carelessly and at worst actually being abused. Of course, I understand the question about institutionalised racism that the noble Lord, Lord Patel, raised. However, I take issue with his reference to mischief making by officials. Since 5 January, I have had the great joy of working with a considerable number of people concerned with mental health in the department and I have been enormously impressed by their commitment, experience, skill and integrity. I pay tribute to them.
I do not think that, in reality, the issue concerns the words in an Act. We come back to a point that I have made consistently—that while the Act sets the context, the real question is how we ensure that practice is acceptable and non-discriminatory. I very much echo the words of all noble Lords who have spoken on that. I have no doubt that we shall respond in the affirmative to the request of the noble Earl, Lord Howe, for the code’s advice on discrimination to clinicians in the field to be very clear and deliberate.
There has been considerable debate and correspondence between the Department of Health and the CRE, as the noble Lord, Lord Patel, said. I do not think that he wishes me to go through the ifs and buts and the backwards and forwards. The Department of Health and the Government wish to ensure as strong and close a relationship as possible with the CRE. Whatever has gone before, we want to ensure that the expertise and experience of the CRE is brought to bear in the development of future health policy and practice.
On Thursday, there was a great deal of discussion about the Mental Health Bill and I had the privilege of meeting representatives of black churches. They are represented here in the Gallery. It was a very lively and moving meeting. In accepting the amendment of the noble Baroness, Lady Barker, I assure her that I fully understand the concerns of the black and minority ethnic communities and that we shall do everything that we can to ensure that services meet the needs of all our communities, are fair and impartial and are implemented in the best possible way in the interests of the public and individual patients.
My Lords, Mencap and learning disabled people consider that the wording of the code of practice to which the noble Lord just referred, and to which he referred in his letter of 26 June, is splendid. We have, indeed, had meetings with the officials concerned. We have added the things that we wished to add to the code of practice and are delighted with the result.
Before I sit down, I should also say how sad it is to note that this is probably the last time that we shall see the noble Lord, Lord Hunt, here as a Health Minister. He has given us the greatest possible support and understanding, as well as his knowledge in the world of disability, over the past few months and, indeed, before that. We shall miss him greatly, as we shall miss the noble Baroness who is now the Leader of the House in responses to us on the Mental Health Bill and on other Bills concerning people with disability. I wish them both the greatest possible success in their new jobs, and I thank all concerned in the Government for taking such a keen interest in and having such an understanding of the amendments that came from your Lordships’ House.
My Lords, it is very rare for me to get to speak after the Minister and, when I do, the noble Lord, Lord Rix, steals my lines. That is my luck. I have three points. First, I thank the Minister for his explanations, but we on this side of the House believe that the words in legislation are critical in determining culture and practice. That is why we have returned time and again to these matters, and that is why we are where we are today.
Secondly, I thank him for his suggestion that noble Lords should be invited to comment on the code of practice. Throughout our debates, all of us have realised the importance of that. Given the considerable experience in this House, which has brought much to our debates, will it be possible to engage noble Lords in discussion of the regulations that will undoubtedly follow the Bill? That will be an important part of the process.
Finally, there is review. The points forcefully made by the noble Lord, Lord Patel of Bradford, were important. What will matter above all else is that in future there should be a body of independent research on which legislators can build. This legislation has suffered in many ways from the lack of a reliable evidence base on which to found legislation. I hope that that will happen, given all that we have learnt—we have learnt much in the passage of this Bill. If at some stage the department can give an assurance that independent research will be made available, in years to come we will receive what we have not yet managed in this Bill: mental health legislation that is fit for this century. I thank all noble Lords for their support on these matters.
On Question, amendment agreed to.
Motion, as amended, agreed to.
2: Leave out Clause 4
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2. This takes us back to another matter that has already been debated extensively in your Lordships’ House and in the other place. As your Lordships will recall, the House inserted a clause on impaired decision-making into the Bill, which was passed to the other place on 7 March. The proposal to include an impaired decision-making test in the criteria for detention has now been debated in the other place, which removed it from the Bill.
The new clauses that were removed from the Bill in the other place would have introduced a fundamental change not only to the Bill but also to the approach taken in mental health legislation. They would have required the needs of patients and the risks posed by their mental disorder to be subordinated to their decision-making ability. The primary purpose of the Mental Health Act is to provide an effective, properly safeguarded mechanism by which clinicians can intervene to protect people from the risks that arise from mental disorder, not because they have made a judgment about the person’s ability to make informed decisions but because it is necessary to protect them or others from harm. Accepting those amendments would have meant abandoning one of the most fundamental objectives of the Act, namely that compulsory intervention should be based on need and risk. As my honourable friend the Member for Stafford pointed out in Committee in the other place, there has been no obvious change since previous Mental Health Acts in 1959 and 1983 that would require this long-standing principle to be changed. We cannot accept that it should be changed, yet that would have been the effect of this proposed new test.
I know that some proponents of an impaired decision-making clause have said that the law and the state have no business interfering in the lives of patients who retain decision-making capacity, despite being seriously ill, if the risk they pose is only to themselves. Yet others have said, quite definitely, that if a person is at a serious risk of suicide their decision-making is necessarily impaired. I appreciate that some noble Lords and the British Psychological Society have said openly that what they see as the greater autonomy for patients that the test would have brought would have been right, even if it meant that some people killed themselves as a result.
I respect the honesty and sincerity of those views, but do not agree. We are not alone. The Royal College of Nursing, for example, has said it could not support any legislation that could impede its members in their primary aim of preventing foreseeable harm. A number of leading clinicians have written to us expressing their concerns. The honourable Member for Southport, in Committee in the other place, was so concerned to establish the true intention of the impaired decision-making test that he asked a number of leading organisations whether someone could be judged a serious danger to themselves and others because they are mentally ill, yet still be possessed of unimpaired judgment. He reported that the answers he received flatly contradicted each other. For example, the Law Society and British Association of Social Workers said that it could not happen, while the British Medical Association and the British Psychological Society said it was entirely possible. On the basis of those and other answers that he received, he worried that, as legislators, he and his colleagues were not able to be clear about the effect that an impaired decision-making test would have.
This is an important point that the proponents of the new test have to resolve before any responsible Government could accept it. The fact that there were so many different views about the effects of this test lends weight to the argument that it would have been a shot in the dark, fraught with the risk of unexpected and unintended consequences.
We should remember that this proposal was not just about the risk of self-harm. Of course most people’s mental disorders, even when severe, pose no danger to anyone except themselves, but sometimes there is a risk to other people, unfortunately. No one has convinced us that because a person has a mental disorder which makes them prone to violence against other people it necessarily follows that they have impaired decision-making. A point made to my ministerial colleague, the then Minster of State for Health Services, Rosie Winterton, in a recent letter from a number of senior psychiatrists was that,
“while impaired thinking is a common feature of mental disorder, impairment of the ability to make treatment decisions specifically is not, of itself, a criterion for diagnosing mental disorder, or any particular mental disorder”.
One of the signatories to that letter was Dr Kevin Murray, associate medical director of Broadmoor. If there were such a test in the relevant criteria and the clinicians could not be sure that the patient’s decision-making was significantly impaired, that would be that. The history of violence and assessment of future risk would have been irrelevant. If the patient could not have been persuaded to accept treatment voluntarily, the clinicians could have done nothing.
Again, I acknowledge that not everyone sees that as a problem. The view has been expressed in debate that if a patient’s decision-making is unimpaired, any risk that they pose to other people should be a matter for the criminal justice system. The problem with that view is that if there is no possibility of compulsory clinical intervention to prevent the violence, with all its implications, an action would have to wait until after an offence had been committed. That does not seem to me to be a very preventive approach.
I know that this matter has exercised noble Lords considerably. The Government have given it considerable attention and it has been fully debated in the other place, but I have to say that we are not persuaded to move on it.
Moved, That the House do agree with the Commons in their Amendment No. 2.—(Lord Hunt of Kings Heath.)
My Lords, I should like to say a few words on this amendment in the context of the Bill as a whole. It would be wrong to let this occasion pass without, from these Benches, a short word of appreciation to the Minister, whose last appearance at the Dispatch Box as a Health Minister this may be.
I thank the noble Lord for his personal contribution to the way this Bill has been successfully amended during its passage through both Houses. The amendments passed in another place, which I hope will be approved by your Lordships today, represent individually and collectively a vast improvement on the Bill that we were first presented with. The changes made in such areas as general principles, age-appropriate services for children and young people, advocacy, renewal of detention, ECT, and of course the definition of appropriate medical treatment—to name only the most salient issues—are most welcome. I firmly believe that we have a much better Bill as a result of these changes. It is right to acknowledge that the Government have listened and responded constructively to the concerns raised from many quarters. I thank them for that. I also thank the members of the Mental Health Alliance, in particular Professor Zigmond and Dr Daw, whose professional advice I have drawn upon throughout the Bill.
At the same time, however, there is a sense of regret. The sadness is that Ministers and we on this side of the House should have approached the task of amending the Mental Health Act from two different perspectives, which in the final analysis have not been reconciled. I say very readily that this is a better Bill, but it is also a lost opportunity. The Millan Committee said:
“It should not be the function of mental health law to impose treatment on those who are clearly able to make decisions for themselves”.
That principle has been the subject of much high-level support over the years. It is the reason why we sought, unsuccessfully, to persuade the Government that a test of impaired decision-making would do more to bring mental health services into the modern world than just about any other change. As it is we are, in a real sense, back in the world of Enoch Powell and 1959. Patient empowerment and respect for the wishes of the patient are acknowledged features of good clinical practice in all other areas of healthcare—but not, it seems, in mental health. It is true that some amendments passed in another place, such as those on advocacy and ECT, tip their cap to the principle of patient empowerment. Finding a way through this issue would have been the way to show that we wanted to banish the stigma and discrimination associated with mental illness. The Government were not willing to engage in that discussion—I, for one, am very saddened by that.
In this, as in other ways, the whole approach of the Bill views mentally ill people as patients who need compulsory treatment for their own good, whether they like it or not. Compulsion is, of course, necessary for many patients. But we need to remember—I do not think that some doctors always do—that it should always be a last resort. The Government say that every limitation on the ability of doctors to detain patients against their will has the effect of preventing those patients receiving the treatment that they need. To put the matter in those terms, however, presupposes that compulsion is the only means by which effective treatment can be delivered. Of course, it is not: good treatment is available without compulsion, and the fear of some of us is that the wider the gateway to compulsion and the easier the law makes it to get people through it, the less likely it is that those who need help will come forward to ask for it. To have acknowledged in law that there is a place for the wishes and feelings of patients who are capable of making their own choices would have been a profoundly far-sighted and beneficial change. Never let us forget the anguish, trauma and humiliation involved in subjecting a patient to compulsion—and never let us forget, as the RCN has emphasised, that compulsion should never be seen as a substitute for good healthcare.
So we bid farewell to this Bill with mixed emotions—a mixture of apprehension, disappointment, gratitude and relief. It is to be hoped that the revision of the draft code of practice and the professionalism of the generality of mental health practitioners, which we are firmly told can be relied on, will make the practical implementation of the Bill something that we can all be proud of.
My Lords, I thank the noble Earl, Lord Howe, for his kind remarks, which I very much appreciate. Having debated—I am not sure whether “shadowed” is the word—with him for four years, and now a further five months, I must say that he has made a really fine contribution to your Lordships’ House. He certainly kept me on my mettle as a Health Minister with the intellectual robustness with which he brings arguments to your Lordships’ House. I pay tribute to him for that and for the service that he gives to the whole House.
The noble Earl commented on the Bill as a whole and talked about two different perspectives; I want to respond. Coming late to this, noble Lords will remember that I made a Statement in, I think, 2001 announcing that the Government were to bring forward legislation. Since then, there has been considerable argument and debate. Some of the concerns that have been expressed about the Bill very much reflect the debate around the original discussions, going back to the beginning of this decade.
I do not disagree with the noble Earl, Lord Howe, one iota about the importance of respect for patients or that compulsion is very much a last resort. The argument that we still have is that he implies that compulsion has become easier under this legislation, but I do not agree. I believe that the Act contains very strong safeguards. I accept that within the context of the Act, the question is: how well do professionals operate in dealing with individual patients? That surely brings us together in terms of work on the code. I fully accept the challenge of the noble Baroness, Lady Barker, of wishing to ensure that Members of your Lordships’ House are able to contribute to draft regulations in future. We must come together again and ensure that the legislation works to the best interests of patients and the public. I assure noble Lords that the Government wish to work very warmly with all stakeholders to, in a sense, put aside some of the disagreements to ensure that the legislation is good and, above all, that there are good services for people with mental illness in this country; we all want that.
On Question, Motion agreed to.
3: Page 3, line 13, leave out from “is” to end of line 14 and insert “appropriate in his case, taking into account the nature and degree of the mental disorder and all other circumstances of his case.”
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 3. I shall speak also to Amendments Nos. 5 to 9, 15 to 18, 20, 22 to 30, 43 to 52, 54, 55, 57, 59 to 61, 63, 64, 67, 69, 70 to 72, 74, 77 to 100, 107 and 108. Some of them address amendments that were discussed, often passionately, in this House when the Bill was first before us; others make a series of technical improvements.
Amendments Nos. 3, 5 and 6 restore the original wording of the Bill’s references to “appropriate medical treatment”. Amendment No. 3 refers to the criteria for detention for treatment under Section 3 of the 1983 Act. Amendments Nos. 5 and 6 make similar changes in relation to the role of second opinion advisory doctors (SOADs) in confirming that it is appropriate for certain medical treatments to be given.
These amendments reverse the amendment, agreed to by your Lordships, effectively reinserting the so-called treatability test, which the Government believe has done more harm than good. Restoring the references to “appropriate medical treatment” puts us in a position to respond positively to the concerns, expressed by many noble Lords and Members of all parties in the other place, that the Bill should spell out in more detail what “appropriate medical treatment” would mean in practice.
Amendments Nos. 7, 8 and 9 do that by making explicit the purpose of medical treatment for mental disorder and so providing further clarification on the effect of the “appropriate medical treatment” test.
I am pleased that there was all-party agreement in the other place to these amendments, tabled by my honourable friend Chris Bryant. The word “purpose” was felt to be better than “intention”, and the word “manifestations” did not have the same risk of misinterpretation that noble Lords identified with the term “effects”. The Government have listened carefully, and I have no hesitation in commending the result to your Lordships.
Important improvements have been made to the safeguards afforded to children. Clause 24, inserted by this House, was removed by Amendment No. 15 as it did not provide sufficient flexibility. However, we have considered further the issue of age-appropriate services for children and young people following the debates in this House and the other place. Amendment No. 30 is the result. We are most grateful to the noble Lord, Lord Williamson of Horton, for laying the initial amendment on this subject and for his help in thinking through the important issues. His positive attitude and his customary determination have carried us a long way.
Amendment No. 30 has cross-party support and will ensure that patients aged under 18 are detained in a hospital environment that is suitable for their age, subject to their needs. The word “environment” ensures that children and young people should have separate and appropriate physical facilities, staff with the right training to understand and address their specific needs as children, and a hospital routine that will allow their personal, social and educational development to continue as normally as possible.
We have not set out a commencement date in the Bill. We believe that it would not be productive because we would have to veer on the side of caution and thus send a mixed message to the NHS. However, our aim is to implement the provision fully in England by around April 2010. Amendment No. 74 provides the necessary flexibility to allow, for example, that new Section 131A be commenced in relation to Part 2 and informal patients in England as soon as resources allow, rather than having to wait until it can be commenced for Part 2, informal, and Part 3 patients in England.
Amendment No. 69 was tabled by my honourable friend Madeleine Moon in the other place, and we thank her for doing so. The amendment increases safeguards for 16 and 17 year-olds by ensuring that their cases are referred to a tribunal by the hospital managers after one year, rather than the current three years, where the patient has not used their right to apply or if their case has not otherwise come before the tribunal.
This House amended the Bill to include provision for detained patients to refuse ECT, except in emergencies, where they have the capacity to do so. At that time the noble Earl, Lord Howe, and the noble Baroness, Lady Murphy, argued that urgent treatment provisions needed further restriction. Many noble Lords wished to see stronger safeguards on those few occasions when children are treated with ECT. We promised that we would consider the issues further. We did so and brought forward a number of amendments in the other place. As a result, the Bill has been further amended so that no child or young person under 18, whether detained or an informal patient, may be given ECT for their mental disorder without it being approved as appropriate for them by a second opinion appointed doctor. Amendments Nos. 47 to 52, 57, 61, 64 and 67 achieve that.
In addition, Amendments Nos. 16 to 18, 22 to 24, 26, 27, 43 and 45 provide that, where the treatment is to be given on the basis of the young person’s own consent, a SOAD must also certify that the patient can, and does, consent to it.
We listened carefully to concerns and agreed that ECT is not a treatment that should be given urgently in order to control a patient’s behaviour or relieve suffering. Amendments Nos. 25, 54, 55, 59 and 60 provide that the circumstances in which urgent treatment with ECT can be given in the absence of a SOAD certificate are now restricted to when the patient needs the treatment in order to save their life or to prevent a serious deterioration in their condition.
Members of this House spoke passionately in earlier debates about the need for patients to have access to advocates. Your Lordships will recall debating amendments from the noble Lord, Lord Williamson of Horton, and my noble friend Lady Howells’s amendment in Committee about advocacy for all child patients.
We considered this issue carefully and believe that the Government’s Amendments Nos. 29 and 100 are the right vehicles for establishing independent mental health advocates to be available to qualifying patients. These advocates, in the process of providing help and support to patients, will be able to meet them in private and meet those professionally concerned with the patient’s medical treatment.
Many noble Lords and Members in the other place spoke of the need for specialist advocacy provision for particular groups of patients. A regulation-making power will ensure that specialist skills in addition to core competencies in advocacy can be provided for.
With the exception of a small number of technical amendments, all the amendments to the new deprivation of liberty safeguards to be inserted in the Mental Capacity Act have been brought forward to fulfil commitments made by the Government in response to debates in this House. The new deprivation of liberty safeguards are needed for people who lack capacity to consent to arrangements made for their care. The cornerstone of the new arrangements is that deprivation of liberty will be lawful only if it is permitted by a formal authorisation or by a Court of Protection order.
If an authorisation to deprive a person of liberty is granted, the period is set on the basis of the best-interests assessor’s recommendation on how long it should last but cannot be longer than 12 months. We are making it clear in the Mental Capacity Act code of practice and in training materials that the period set must be the shortest possible.
To allay concerns that 12 months would become the default period for authorisation, my noble friend the Leader of the House committed to take a power to reduce the maximum authorisation period at a future date if monitoring of the operation of the safeguards provides convincing evidence that it is necessary to do so. Amendments Nos. 72, 79 and 98 achieve this. We will keep the length of authorisations granted under review.
My noble friend Lady Ashton also committed the Government to consider whether more advocacy support was needed for people who are deprived of their liberty. We have considered the matter, and Amendments Nos. 80, 82, 83, 86 to 90, 93, 94 and 99 give the person deprived of liberty, or their representative, the statutory right of access to an independent mental capacity advocate (IMCA), who will explain to them the authorisation for the deprivation of liberty and provide support with a review or with an application to the Court of Protection.
Section 40 of the Mental Capacity Act provides that an IMCA is not required to be appointed in specified situations. Amendments Nos. 71 and 95 to 97 provide for IMCAs in additional circumstances and limit the exceptions under Section 40. Amendments Nos. 81, 85 and 91 were introduced by the Government to make technical changes to the wording used to refer to applications to the Court of Protection and do not alter in any way the rights of the person concerned.
Amendment No. 84 relates to one made on Report in this House and would further require the person concerned to be informed by the supervisory body that a request has been made to assess whether they are being deprived of liberty, whether an assessor has been appointed, the name of the assessor and the outcome of the assessment.
Amendment No. 91 provides an easy reference point for definitions of terms used in connection with the deprivation of liberty safeguards. It does not alter the safeguards in any way but is purely technical. However, it will make the legislation easier to use.
In the other place, the Government introduced Amendments Nos. 70 and 78 to the Domestic Violence, Crime and Victims Act 2004. They extended the rights of victims to receive information and make representations about offenders who receive unrestricted hospital orders. Currently, these rights are only available to victims of convicted offenders who receive a hospital disposal subject to special restrictions.
My right honourable friend in another place paid tribute to the work of the Zito Trust and Victims’ Voice, and I would like to do so also. Their advice has been invaluable to us in understanding and addressing victims’ concerns. These amendments are the result. They show the importance that the Government attach to involving victims, and their proper concerns, in the process of managing mental disorder.
The Government also tabled further detailed amendments to improve and clarify the safeguards for patients in the Act. Amendment No. 46 makes clear that certificates for child community patients apply when a patient is recalled to hospital or their CTO is revoked, in the same way as the equivalent certificates for adults. Amendment No. 63 provides that the appropriate national authority is able to require that the approved clinician in charge of treatment provide a report on treatment given under the authority of a SOAD certificate issued under Part 4A and on the condition of the patient concerned. It already has this power in relation to certificates issued in respect of detained patients.
Amendment No. 28 clarifies what happens when a patient’s capacity to consent to treatment changes after a statutory certificate has been issued. Amendment No. 44 corrects a small gap in the 1983 Act to ensure that no offender patient detained by a court in a place of safety pending admission to hospital can be treated under compulsion.
Amendments Nos. 77, 107 and 108 are uncontentious and straightforward. Amendment No. 77 refers to the removal of the privilege amendment. Amendments Nos. 107 and 108 make additions to the Long Title to reflect the clauses added to the Bill in the other place which amend the Domestic Violence, Crime and Victims Act 2004 and Section 40 of the Mental Capacity Act 2005.
We listened carefully when the Bill was debated in this House. We have listened to the views of stakeholders and debated at length in the other place. We accepted amendments in the other place and brought forward our own. In doing so, we have addressed the many issues raised in this House. The Bill now makes explicit that medical treatment for mental disorder must be for the purpose of alleviating or preventing a deterioration of the disorder, its symptoms or manifestations. We have provided that children will be treated in appropriate environments, and have extended strengthened ECT safeguards to informal child patients. We have provided that advocacy services will be available to all patients subject to compulsion under the Mental Health Act, and extended advocacy to persons subject to a deprivation of liberty under the Mental Capacity Act.
Moved, That the House do agree with the Commons in their Amendment No. 3.—(Baroness Royall of Blaisdon.)
My Lords, in this group of 69 amendments, I wish to comment on only two. I comment on those because they are important amendments. Amendments Nos. 29 and 30 deal with advocacy and age-appropriate accommodation and facilities for children under 18. Let me make it clear that I agree with those amendments and welcome them, but I should like to make one or two comments.
First, on advocacy, the great advantage of the amendment that we have now is that it is a general amendment applicable to all qualifying patients, not just children or others. That means that we have established a system that will run for the future. We fully understand there is no specific timetable, because we have to create an advocacy service capacity. Therefore, we cannot expect to have such a timetable, but we welcome the Government's view that they will look at the working to accelerate the timetable for full implementation as soon as they can. That is important.
I welcome the fact that the amendment makes explicitly clear that help is available to patients. These things can be easily forgotten and there are specific provisions that protect and facilitate effective advocacy, such as interviews in private, access to records, and so on. That is very welcome.
I also welcome new Section 130D in the 1983 Act, which provides the duty to give information to ensure that a qualifying patient knows what help is available and where he can obtain it. It is very explicit; the text is fully comprehensible; it is always welcome to read in legislation something that is fully comprehensible. The Government have responded well to what we proposed earlier—by we, I include that resolute campaigner, the noble Baroness, Lady Howells of St Davids, who is in the House, who has always worked very hard on the issue. I am glad to see her here and glad that we have made progress together.
I turn now to the issue of age-appropriate accommodation facilities for those under 18. Our first requirement for this issue was that it be in the Bill. It is in the Bill; it applies to all those under 18 and there is a provision for consultation by hospital managers with someone who has knowledge of cases involving children. Those three elements were in the original amendment passed in this House and we are glad to see that they have come through unscathed.
I also welcome the fact that there are new provisions about ensuring that the courts and social services should be informed where there is age- appropriate accommodation available. This would avoid people being shunted around or held somewhere because they could not find the age- appropriate accommodation. That is a practical point of considerable importance.
My last point is on timing. Once again, we heard what the Minister said in the other House. We understand that this cannot necessarily be brought in instantly but we are anxious that it should come in quickly because it is a response to something that was previously unsatisfactory and we want to get it into place as soon as possible. We are all campaigners for that.
Finally, I welcome the fact that the Bill started with main provisions, about which there was some dispute, and to which changes were proposed. These two amendments are slightly different; they are amendments which improve the current system, irrespective of other changes in the mental health world. That is what we wanted to achieve and what we have here, so I join others in thanking all the Ministers who have dealt with this. Whether they are still in health or wherever they have gone to—they have moved around quite a bit and I have not quite caught up with them all yet—their legacy is very much welcomed by me and others.
My Lords, I add my thanks for these amendments. They concern issues I raised at Second Reading but I was then debilitated by a virus and prevented from joining my noble friend Lord Williamson in what I think is his triumphant campaign to get this in the Bill. I congratulate him on that.
However, I add some disappointment about the timing. At Second Reading I mentioned that the Minister in the other place had said that efforts were already being made to prevent children being inappropriately placed in adult mental institutions. I therefore hope that I misheard the Minister, although I probably did not, that those are to be brought in by 2010. I hope that we are going to bring it in as soon as possible and that it was the other measure which was to be introduced by 2010 because it is crucial that we move rapidly towards that. However, I congratulate the Front Bench on getting children into this Bill when they were nowhere near it at the beginning.
My Lords, I too welcome this group of amendments and I endorse entirely the remarks made by the noble Lord, Lord Williamson. I congratulate him warmly on the success of his dogged campaign. I have a question on Amendment No. 9 which deals with the definition of medical treatment. It is an extremely important amendment.
The Minister said that the word “manifestations” in the amendment does not provide the same scope for misinterpretation as the House identified with the word “effects”. Can the Minister confirm that “manifestations” amounts to the same thing as “signs”, which is the professional term used to describe evidence elicited by the clinician as a result of observing the patient? What I hope the amendment would not allow is preventive detention for reasons of social control or public order. It would do so only if “manifestations” could be interpreted as including offending behaviour. Detention in hospital to stop offending would therefore amount to treatment. It would be helpful if the Minister could tell me that the amendment could in no circumstances be interpreted in that way.
My Lords, I, too, was unfortunately incapacitated for most of the Bill’s passage through your Lordships’ House, and I am very grateful to those who took my place, particularly my noble friend Lady Murphy, and the noble Baroness, Lady Barker, on the Liberal Democrat Benches. I want to say “thank you” for the fact that the Bournewood case now appears to have been solved. We hope that it has been solved. We are particularly grateful for Amendment No. 79, which introduces a regulation-making power to reduce the maximum authorisation period for a Bournewood detention below one year, following the monitoring of the operation of the Bournewood provisions in practice; and for Amendments Nos. 80 to 99, which give Bournewood patients and their representatives the right to an independent mental capacity advocate and set out the circumstances in which this applies. We have worried about Bournewood for so long now. At long last, the other place has provided the final solutions to this problem.
My Lords, again, I thank all noble Lords who have helped us to find solutions to the difficult issues raised in this House and in the other place. I am very pleased that there has been recognition of all the work that has been done since this House last considered the Bill. As the noble Earl, Lord Howe, said earlier, much has been done, individually and collectively, to improve it. As the noble Lord, Lord Williamson, said, however, current provision for mental health patients has also been improved, which is important. I well understand the disappointment expressed by the noble Baroness, Lady Howarth, about the timescale for age-appropriate treatment. Sadly, she did not mishear me; I did say that the provision would not operate fully—I stress, fully—until about April 2010. We will implement it gradually, so I hope that ultimately she will not be too disappointed.
I hope that I can reassure the noble Earl, Lord Howe, that “manifestations” has no particular clinical meaning. The Oxford English Dictionary defines it as,
“the demonstration, revelation, or display of the existence, presence, qualities, or nature of some person or thing”.
So although the two words could mean the same thing, “signs” has a more limited and specialist meaning, so using it would risk ambiguity in the way that the use of the word “manifestations” would not. I hope that that has reassured the noble Earl. Clearly it has not.
My Lords, it has not entirely reassured me, although I am grateful to the Minister. If the meanings are not synonymous, that gives rise to the question: what else could “manifestations” mean? I am anxious that we should not repeat an amendment that your Lordships decided to reject at an earlier stage of the Bill.
My Lords, I believe that the noble Earl expressed concern that the Act talks only about treating disorders, and then talks about symptoms and manifestations. Is that correct? Is he asking whether this is another attempt to detain people with untreatable personality disorders? I am clearly incorrect. I will have either to respond a little later or to write to him about the definition of “signs” as opposed to “manifestations”. A note has been passed to me—magic. It says that “manifestations” is an ordinary English word that does not have the special meaning that doctors will give to “signs”. It will therefore be easier for everyone to understand in practice. It is merely a matter of people’s understanding. There will be no difference between the word “signs” and “manifestations”. It is ultimately simply a matter of people being able to understand what it means. As the noble Lord, Lord Williamson, said earlier, it is very important for the Bill to contain words that everyone can understand. The word “signs” rather than “manifestations” will therefore be more easily understood by everyone involved.
My Lords, I am grateful to the Minister for that clarification which is in part reassuring, although it leaves open how the word could be interpreted. My concern, shared by many noble Lords, was that if someone was behaving in a certain manner in public—let us say, aggressively—they could be taken into preventive detention and that would amount to treatment under the Bill’s terms. I hope that the Minister can allay that concern.
My Lords, a little further clarification: symptoms and manifestations are intended to cover all the ways that the disorder affects the patient’s functioning, in terms of how the patient thinks, feels or believes. While there is almost certainly some overlap between the two, broadly speaking we think that “symptoms” covers the consequences of which patients themselves complain while “manifestations” more obviously covers the evidence of the disorder as seen by other people. In the end, the important point is not the distinction between the two words but the certainty that between them they cover the whole gamut of what can be addressed by medical treatment. I acknowledge that the noble Earl and other noble Lords are concerned about the definition and I suggest that we should look at it in the code of practice, perhaps more clearly expressing the definition of those two words. If we were to do that and to consult noble Lords as we draw up the code of practice perhaps that would allay their fears.
My Lords, we are obviously at a very late stage of the Bill’s passage. I thank the Minister for that offer, which I am sure noble Lords on this side of the House would wish to accept. The key point, however, is the one that we debated long and hard; that of therapeutic benefit. Treatment must contain some measure of therapeutic benefit if it is to count as medical treatment. Simple detention in a confined space would not amount to medical treatment. That is the concern that we hope the Government will meet.
My Lords, that matter was addressed by the amendment moved by my honourable friend Chris Bryant in another place. I do not have the text of that amendment in front of me, but I understand that that amendment dealt with this issue and allayed the fears of those who are working in this area, mental health patients themselves and all stakeholders involved.
On Question, Motion agreed to.
4: Leave out Clause 6
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 4. I shall deal also with Commons Amendments Nos. 10 to 14, 19, 21, 31, 36, 37, 40, 53, 56, 58, 62, 65 and 66, which concern approved and responsible clinicians. I also welcome Amendment No. 4A, tabled by the noble Baroness, Lady Murphy, which I believe offers an excellent way forward.
Commons Amendments Nos. 4, 31, 36, 37 and 40 reverse amendments made in the House that would have required a patient’s responsible clinician to gain agreement from a doctor before renewing a patient’s detention or initiating, extending or revoking a patient’s community treatment order. To allow a responsible clinician’s decisions to be overridden by a doctor who may not even be involved in the patient’s care is certainly not the best thing for patients or for an efficient workforce. That is why the other place voted to overturn your Lordships’ amendments. However, the Government have always said that the decision to renew a patient’s detention should involve the multidisciplinary team of professionals concerned with the patient’s care. Before furnishing the renewal report, the Act already requires a patient’s responsible clinician to consult at least one other person on a multidisciplinary team.
Amendment No. 4A, laid by the noble Baroness, Lady Murphy, seeks to require also that the responsible clinician secures the agreement of such a person who must be of a different profession from the responsible clinician. The provision would apply to all responsible clinicians of whatever professional background. We have considered this amendment carefully. On balance, we believe that it offers an excellent solution. It avoids the problems associated with your Lordships previous amendments, which harked back to an outdated “doctor knows best” approach. The Mental Health Coalition, representing 85 per cent of the mental health workforce, says that the previous amendments would have introduced,
“outmoded hierarchies between the professions in decision-making situations [and] taken mental health care backwards”.
They also would have undermined the New Ways of Working initiative, which has general support from psychiatrists and others. They would have stood in the way of efforts to ensure that professionals’ skills are recognised and focused where they are needed, to the benefit of patients and an efficient workforce.
By contrast, the amendment proposed by the noble Baroness, Lady Murphy, is compatible with a multidisciplinary assessment and has the renewal decision made by professionals who know the patient. It is for the responsible clinician to decide whether a patient’s detention should be renewed, but it is not unreasonable to expect that they have formal support from at least one other member of the multidisciplinary team. Good practice already dictates that they should negotiate agreement with the team. The noble Baroness’s amendment recognises multidisciplinary working; it is one that we can support.
Commons Amendments Nos. 10 to 14, 19, 21, 53, 56, 58, 62, 65 and 66 are simply technical amendments to address small inconsistencies in Parts 4 and 4A, which otherwise result from the introduction of the approved and responsible clinician roles.
Moved, That the House do agree with the Commons in their Amendment No. 4.—(Baroness Royall of Blaisdon.)
4A: Page 6, line 19, at end insert-
“( ) after subsection (5) insert-“(5A) But the responsible clinician may not furnish a report under subsection (3) above unless a person-
(a) who has been professionally concerned with the patient's medical treatment; but(b) who belongs to a profession other than that to which the responsible clinician belongs,states in writing that he agrees that the conditions set out in subsection (4) above are satisfied.”””
The noble Baroness said: My Lords, we on these Benches appreciate the number of amendments that will be a real improvement to the original Bill and will, as the noble Lord, Lord Williamson, has said, be a serious improvement overall to mental health services, certainly by 2010. However, I cannot help but express my profound disappointment that the change in culture and attitudes of the Government and the professions towards people with mental health problems, which we hoped a new Bill would introduce, has not happened after eight years’ serious hard work.
I would be more depressed if it were not going to be easier for people who are depressed to be sectioned in future. It took from 1828 to 1845 for the seventh Earl of Shaftesbury to bring about the very significant changes in 1845. He had to battle away until 1880 to ensure that those changes were retained. Sometimes they were lost for a few years and then he had to fight again. In another 20 years, I hope that some of us will be back to introduce a Bill which seriously changes attitudes.
On Amendment No. 4A, the renewal of detention is as important for the patient as the initial detention, which we have not taken as seriously as we should have done in the past. This modest amendment would require two clinicians, both of whom have to be concerned with the treatment of the patient. I make no secret of the fact that I would prefer safeguards—for example, in regard to the medical expertise that would be required in the renewal—to be at least as strong as those required under the Mental Capacity Act. It is not a matter of hierarchies but of appropriate training and competences.
In accepting this amendment, what do the Government envisage will be in the regulations and the code of practice to ensure that the second clinician will see and examine the patient? At the moment there is nothing in the provision to determine that the patient will be seen and examined, which is pretty essential. Secondly, which of the professionals do the Government envisage will give the objective medical expertise on mental disorder, which has been determined by the European Court of Human Rights, to satisfy the criteria for detention under the Act? Which of the clinicians would that be? I beg to move.
Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 4, Amendment No. 4A.—(Baroness Murphy.)
My Lords, I strongly endorse this amendment; if accepted, it would meet one of the three or four most serious concerns expressed at earlier stages of the Bill about the legal process required to renew a detention order. The noble Baroness has put the case very well. I believe the case is unanswerable. I am delighted that the Government have signalled their willingness to consider the amendment positively but, like the noble Baroness, I believe that there is a potential problem with the amendment because it does not explicitly require the second person to conduct an examination of the patient. I very much hope that no clinician would be satisfied that the conditions have been met other than by an examination. It would be wrong for this provision to allow the responsible clinician to get someone in the team just to rubber-stamp his or her view. The second opinion needs to be a separate independent decision, and I hope that the code of practice will reflect that.
My Lords, I would like to identify myself with the comments that were made by the noble Earl, Lord Howe, when he welcomed the changes to the Bill. There have been a substantial number of positive changes. I also identify myself with the appreciation that he expressed of the work of Professor Zigmond, Dr Daw and many other colleagues who have devoted a great deal of time and effort to trying to assist us in improving the Bill.
I also have to identify myself with the rather downbeat remarks of my noble friend Lady Barker and my colleague, the noble Baroness, Lady Murphy, because despite all the work that has been done I do not find this a good Bill. It does not address things in the way that it ought to. The whole process has suggested to me, rather than a move forward and an appreciation of the complexity of the problems that we are dealing with, a damping down, indeed a dumbing down, of those problems.
I speak at this point because of the concept of “responsible clinician”, which expresses some of the dilemma that we are in, as pointed to by the Minister in her reference to the changes as doing away with a paternalistic, “doctor knows best” attitude. Frankly, that is part of the problem of not understanding the complexity. Mental illness cannot be dealt with simply at a sociological, psychological or biological level; it is a highly complex group of phenomena with which we are struggling to become familiar. I understand that parliamentarians, lawyers and others who do not immerse themselves in the business of understanding and dealing with these problems want a simple answer. It is always the same when as a professional one finds oneself in court: the lawyers want a yes or no answer and get frustrated when the truth is not a simple yes or no. Parliamentary colleagues, particularly those with constituency responsibilities, want a simple yes or no answer to whether a troublesome person can be locked away in one way or in another way. It is simply not like that, yet we find increasing pressures from the community and from colleagues in other professions to give those simple yes and no answers to get rid of troublesome and difficult problems and indeed people.
Despite the improvements in the Bill, all the work and energy that have gone into it, and the extensive process that we have gone through, it is with a rather heavy heart that I see it go forward, because it represents a lessening of our understanding of the complexity and difficulty of the issues with which we are dealing, and a slipping back into a rigid, simplistic way of viewing things. That is certainly easier to communicate in terms of a slogan, a remark or what may be passed in a court of law, but the complexities of mental disorder in particular are not susceptible to that kind of understanding. Many will suffer more because of this approach.
It is not just a question of the victims being adversely affected, physically or otherwise. The first victims of mental illness are those who suffer from it, but the second group of victims comprises their partners, family and friends, and those with whom they live. The third largest group, in terms of the number of people involved, comprises the healthcare workers who have to work with the victim and frequently find themselves grossly affected by what is happening. The last and much smaller group are those in the rest of society who, on unusual occasions, come across the problem. But frankly, that happens less often with those who are mentally ill than with those who are not. I see a lessening of the understanding of the distinction between frank mental illness, as a falling away from normal function, and personality disorder, a disturbance of a different kind.
I am worried that more will be admitted to and kept in hospitals on a formal basis, and that, because of that, many others who are not admitted on a formal basis will find that there is no bed for them. There will be no possibility of them being attended to because, unless substantially greater resources are invested, what resources there are will be devoted to those who are creating difficulties and causing trouble rather than those able to be treated successfully.
I welcome all the positive things about the management of young people in more age-appropriate circumstances, advocacy and some of the other changes that have taken place. But, as I have said, it is with a heavy heart that I see this Bill pass, as it may be a considerable time before we can return to repair the attitudes that we see represented in the Bill’s provisions.
My Lords, I rise with some trepidation because I am a great admirer of the noble Lord, Lord Alderdice, and my noble friend Lady Murphy. But I take a different view. It is not that I think this is perfect legislation, but it links in with the two previous Acts and enhances them. I also take the view that other clinicians, not necessarily medical clinicians, may be better placed to take some of the decisions about admitting people because they work with the individuals. I say that having worked, as the vice-chair of the Lucy Faithfull Foundation, in a quasi situation with sex offenders, where medics were simply not interested in cognitive programmes that proved that the offenders could change their behaviour, with a very low rate of repeat offences. We will be going backwards if we take the simplistic view that a broader group of people cannot be trained well and helped to develop their skills to work in this field.
I recognise that this issue is extraordinarily complex and that medication is an important part of it. Medics issue prescriptions, but there are plenty of clinicians who are not doctors but who can administer medications on behalf of doctors. There are other ways of moving forward. I hope that we will do so, but I say that with some humility in the face of the two noble Lords who have just spoken.
My Lords, I am grateful for the support of the noble Baroness, Lady Howarth, and the words expressed by the noble Baroness, Lady Murphy. As she said, changing attitudes takes a huge amount of time, but I am sure that in the end we shall arrive at a situation with which we are all content and where we have achieved all we want to for patients with mental health problems. I note the continuing concerns and heavy hearts of noble Lords. The Government understand that this is a highly complex area with a lot of grey; it is not a question of black or white, yes or no. I agree with the noble Lord, Lord Alderdice, that there are different victims as he broadly defines them.
Our policy is to allow the patient’s case to be led by the most appropriate professional to address their main treatment needs. In the majority of cases, a psychiatrist will be the most appropriate professional, but it will not always be so. For example, if the patient requires, exclusively or primarily, psychological interventions, inflexible and outdated legislation, as the noble Baroness, Lady Howarth, said, must not stand in the way of the most appropriate person doing the job. One professional cannot address all of a patient’s needs; that is why there must be a multi-disciplinary team.
If the patient is receiving medication but their main treatment needs demand a responsible clinician who is not qualified to prescribe, the medication will be the responsibility of a professional who can prescribe. I stress that the Bill does not require any professional to act beyond their competence. A responsible clinician who is not qualified to prescribe cannot decide to perpetuate medication decisions. Medication should be kept under review by an appropriately qualified professional, separate from the decision to renew compulsory powers. A patient whose case is being considered for renewal will have their medication authorised by a second opinion appointed doctor.
No responsible clinician will be expected to act beyond their expertise, and statutory competency requirements will ensure that all responsible clinicians, of whatever professional background, will have the expertise to carry out their functions under the Act. This includes providing objective medical expertise about the patient’s need for detention. We have worked closely with stakeholders, including the Royal College of Psychiatrists and the BMA, on drafting the competency requirements for responsible clinicians. Advice from the Queen’s Counsel, sought by the coalition, has confirmed the Government’s opinion that the Bill as originally introduced, in conjunction with the statutory competency requirements, complies with the Human Rights Act.
The noble Baroness, Lady Murphy, asked which professions will be able to take on the responsible clinician role. The professions that can become approved clinicians and therefore take on this role will be set out in directions from the Secretary of State and Welsh Ministers. Only suitably regulated professions will be selected. In both England and Wales they will include chartered psychologists, mental health and learning disability nurses, occupational therapists and social workers, in addition to doctors. Individuals wishing to become approved clinicians will need to demonstrate that they have the right experience, skills and competencies to take on that role. Draft directions for England, which include the professions that can be approved, are in the Library and on the Department of Health website.
The noble Baroness quite rightly asked what will be in the regulations to require the second professional to examine a patient. The primary legislation will require the second professional to be professionally concerned with the patient; they will know the patient’s case. The draft regulations will, of course, be made available, and we would welcome the input of all noble Lords.
I am glad that we can support Amendment No. 4A and I ask noble Lords to do so. I also urge noble Lords to support the government amendments.
On Question, Amendment No. 4A agreed to.
Motion, as amended, agreed to.
32: Clause 32, Page 20, line 40, leave out from beginning to end of line 17 on page 21 and insert—
“(b) it is necessary for his health or safety or for the protection of other persons that he should receive such treatment;(c) subject to his being liable to be recalled as mentioned in paragraph (d) below, such treatment can be provided without his continuing to be detained in a hospital;(d) it is necessary for his health or safety or for the protection of other persons that he should be liable to be recalled to hospital for medical treatment;”
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 32. I shall speak also to a number of other amendments.
We come to the final part of our discussions: the introduction of supervised community treatment. I do not exaggerate when I say that both here and in the other place supervised community treatment has been a source of considerable debate. Without having a Second Reading debate on the principles, I emphasise that supervised community treatment is intended to provide a way to minimise restrictions on people’s lives, allowing some patients to spend less time in hospital and giving them more freedom rather than less.
I understand the controversy that supervised community treatment has attracted and we have listened hard to the concerns and questions raised in debates. The amendments brought forward today were laid in the other place and, together with further amendments tabled by the noble Lord, Lord Patel, which the Government will accept, we have come to a satisfactory conclusion, which will ensure that we have a system that is workable for professionals, is beneficial to patients and strikes the right balance between patients’ rights and prevention of harm.
Commons Amendment No. 33 removes from the Bill the examples of conditions that could be attached to a community treatment order. We have been responsive to the many strongly expressed concerns about the conditions. Although we have always been clear that the conditions could not be used to exert undue control over a patient’s freedom, we know that the term “psychiatric ASBO” has passed into common parlance. This has caused unnecessary alarm to patients and their families and has to be dealt with. That is why the amendment makes it clear on the face of the Bill that the conditions must be about ensuring that the patient receives treatment or about preventing harm to the patient or others. With one exception, which is a technicality, the Bill makes it clear that conditions cannot be imposed for any other purpose.
We have recognised, too, that despite the many safeguards for patients on supervised community treatment—the same rigorous process and timing of review as for detained patients, the right to apply to a tribunal and the hospital managers for discharge, automatic referral and the nearest relative’s right to discharge—some people were concerned that it would be hard for patients to get off supervised community treatment. We decided that, in addition to those safeguards, it was right to accept a further provision, originating in this House, that an AMHP should have to agree to the extension of a CTO each and every time it comes up for review. Our Amendments Nos. 38, 39 and 42 cast that provision in a slightly different way from the original but have exactly the same effect. We must get the provisions and safeguards for supervised community treatment right so that best practice can flow from the right base. I hope that your Lordships will agree that the amendments address some of the key concerns that have been expressed.
I emphasise that supervised community treatment will be suitable only for a limited number of patients; it cannot realistically prevent all suicides and homicides by people with a mental disorder. But supervised community treatment allows a system to be put in place that makes prevention more likely than it would be without it. It is a fact that a significant proportion of homicides and suicides follow patients’ non-compliance with their medication. If we can tackle non-compliance with treatment through supervised community treatment to keep patients well, that is an end in itself. There is also a real chance that, as a consequence, supervised community treatment will save lives. I am certain that it will improve patients’ lives while at the same time improving patient and public safety.
I turn now to the criteria for eligibility for supervised community treatment, which has been the subject of much debate and concern. Your Lordships removed the Bill’s original criteria due to fears that they were too broad and would allow too many patients to qualify. In their place, your Lordships put criteria that would have restricted eligibility to very few patients indeed. I understand the concern that noble Lords expressed. I also understand that your Lordships considered that aftercare under supervision would be available only for those at risk of harming themselves. Noble Lords will recall our debate and the concern that I expressed that running two schemes in parallel would not work. Those original amendments required two compulsory admissions before supervised community treatment would become available.
I always understood the rationale for those amendments, but we could not accept them as they stood because they would immediately risk excluding patients who might benefit. Those patients would either have to remain in hospital or be discharged without any form of supervised treatment in the community. We felt that that would put families, carers and clinicians in an impossible position. It would mean that they would have to wait until the patient relapsed before supervised community treatment could become an option. For some patients that could be too late, because the relapse might be fatal, and for all patients the prognosis is worse the longer they wait to get the treatment that they need. Therefore, we felt that such a criterion was arbitrary and would fetter clinical judgment.
Therefore, the Government made amendments in the other place, which were accepted, to reinstate the criteria in the original Bill. Before doing so, we reviewed those criteria very carefully. We considered whether the criticism of those criteria made by your Lordships was justified. We concluded that the criteria did the job that they were intended to do and that they were set at the right level.
However, we accept that those criteria have given rise to concerns that supervised community treatment could be used too readily and that it could be used as a failsafe option without true justification. We do not agree with that, but we understand that we have to allay those concerns. That is why we support the amendments tabled by the noble Lord, Lord Patel, as they put beyond doubt what supervised community treatment is all about. In so doing, I pay tribute to the noble Lord. I am most grateful to noble Lords who have taken part in these extensive discussions. I beg to move.
Moved, That the House do agree with the Commons in their Amendment No. 32.—(Lord Hunt of Kings Heath.)
rose to move, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 32, at end insert “but do propose Amendment 32A as an amendment to Commons Amendment 32, and Amendment 32B as a consequential amendment to the Bill”.
32A: Line 7, leave out paragraph (d) and insert—
“(d) it is necessary that the responsible clinician should be able to exercise the power under section 17E(1) below to recall the patient to hospital;”
32B: Page 21, line 19, at end insert—
“( ) In determining whether the criterion in subsection (5)(d) above is met, the responsible clinician shall, in particular, consider, having regard to the patient’s history of mental disorder and any other relevant factors, what risk there would be of a deterioration of the patient's condition if he were not detained in a hospital (as a result, for example, of his refusing or neglecting to receive the medical treatment he requires for his mental disorder).”
The noble Lord said: My Lords, before I speak to my amendments, I, too, thank the Minister for his informative and supportive manner and his continued patience with those of us who are relatively new to the House and are trying to find our way through the complexities of health and social care legislation.
When the Government announced their intention to introduce community treatment orders, they offered the reassurance that these were designed specifically to apply to so-called “revolving-door” patients, who, as many noble Lords are aware, constitute a relatively small number of those people who are detained under the Mental Health Act. I remind your Lordships that part of the Government’s rationale for introducing a CTO power was that it could provide a less restrictive alternative to long stays, or repeated stays, in hospital for such patients. I think that it is true to say that a great many of the experts from whom we have heard over the years, whether professionals or patients, have found the idea of a CTO acceptable only on these terms: that is, if its use is confined to the revolving-door patients—those who have had multiple admissions to in-patient care.
If Parliament drafts the law too widely, the danger is that CTOs will be applied too widely. They could even become part of the normal discharge process for detained patients generally, as a kind of safety net for risk-averse mental health service staff and managers. If this happens, Parliament will not have produced a measure that enables a less restrictive alternative for the effective management of this small group of patients, but instead will have increased massively the legal coercion of psychiatric patients generally. I do not believe that this is the intention of Parliament and I hope that the Minister can reassure me today that my belief is correct. I again take this opportunity to point out the very understandable fear in some black and minority ethnic communities that any increase in coercive powers will impact disproportionately on them.
It was with a view to defining the scope of CTOs more precisely that this House tightened the criteria for their use in its previous debates, but of course these amendments to the Bill were undone in another place. I understand that the Government are particularly concerned not to allow any threshold for using CTOs that arbitrarily excludes patients. I understand that concern, which we all share, but there are still some differences between us on what an arbitrary threshold would be. I doubt that I am the only one in this House who felt deep concern at the phrase used by some government officials and Ministers that every exclusion is a patient not treated.
As chairman of the Mental Health Act Commission, I find it particularly disturbing to see the conflation of treatment opportunity and coercive treatment in this way. It is important that we establish a threshold below which treatment is offered rather than insisted on. It should be a salutary lesson to us all that, even in parliamentary debates and ministerial statements outside the House, the focus on revolving-door patients as the proper subjects of CTOs appears to have blurred. If the lawmakers cannot keep such a focus, it is a vain hope that the people who operate the law will do so.
With that in mind, I will pay close attention to the consultation on the code of practice, and I hope that the code will end up with a clear statement of intent regarding CTOs. That is not as good as the proper legal threshold that I and many others in this House and elsewhere would like to see, but it seems that this is the best that we are likely to get.
Therefore, my amendment is a modest proposal designed to ensure that professionals pay some regard to the clinical history of a patient for whom they are considering a CTO. It does not have the effect of establishing a threshold for CTO that certain things must have occurred in the patient’s treatment history, such as disengagement with services leading to relapse, but it will stand as a reminder to clinicians that they should be basing their decisions about a person’s liberties on evidence and not on supposition. It is not as far as I would like to go in defining the law, but it improves the government amendment, and I hope that the Minister will be able to accept it. I beg to move.
Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment 32, at end insert “but do propose Amendment 32A as an amendment to Commons Amendment 32, and Amendment 32B as a consequential amendment to the Bill”.—(Lord Patel of Bradford.)
My Lords, in view of the unprecedented level of interest in the Bill, I will be extremely brief. I have two questions for the noble Lord, Lord Patel of Bradford, although he might be assisted in his answers by the Minister. In Amendment No. 32A, on the necessity of imposing these powers, is that decision justiciable? Can it be reviewed using the legislative process? Under Amendment No. 32B, clinicians have to take into account not only the patient’s history of mental disorder but “any other relevant factors”. That is the sort of language that, when it appears in an opposition amendment, is mauled by the Government. Will the Minister tell us precisely what that phrase means? What will be included and what will be excluded by clinicians?
My Lords, in a very real sense the provisions relating to community treatment orders represent a leap of faith. The effectiveness of CTOs must surely remain a matter of considerable uncertainty in the light of the published international evidence, which, as the Minister will know, came to some pretty negative conclusions. Of course we hope that CTOs will do good and that they will be seen as having a place for certain groups of patients, but there are still real uncertainties about their implementation.
I have two questions for the Minister on CTOs. The first concerns the length of time that a CTO should continue before being brought to an end. We debated that at earlier stages without result. The Minister may say that this is a matter for clinicians and not for Parliament, but at what point does a CTO achieve its purpose? At what point does a clinician know that it is safe to remove the conditions of compulsion under which the patient is living? As Genevra Richardson pointed out, that judgment would be extremely difficult to make, and clinicians may prefer not to make it but instead to play safe by simply letting the CTO run on. We are back to the analogy of the lobster pot. What, if anything, will be included in the code of practice to prevent a CTO from running on indefinitely year after year? How reasonable and ethical is it and how justifiable by reference to the evidence from other jurisdictions is it for a patient to remain on a CTO for years at a time? If the Bill allows this, as it appears to do, I, for one, am not at all comfortable about it, and the amendments passed in another place unfortunately do not meet that concern.
My second question relates to the conditions that a clinician may specify in a CTO. It is very welcome that the circumstances in which such conditions may be applied are now more tightly drawn than they were previously, but what if the patient subjected to a CTO thinks that the conditions are unreasonable? When we debated this at earlier stages, the Government did not see that as a problem, but what legal remedy does a person subjected to a CTO have if he thinks that the conditions supposedly placed on him for his own good are an unreasonable infringement of personal liberty? Is it right or just that there is no appeal mechanism for this aspect of his regime?
I ask these questions partly as a result of a letter that I received in the past few days from an eminent professor of psychiatry, whom I shall not name. He refers in his letter to the confusion about what CTOs are actually for. The purpose of a CTO, he says, is to get non-compliant patients back on medication and to make sure that they stay there—no more, no less. That, according to the professor, is an end in itself; anything that may follow from it is secondary. I was shocked by that opinion. It may seem extraordinary that at this late stage of our deliberations on the Bill we should debate a fundamental issue of this kind, but I would be glad if the Minister took this opportunity to comment on it. Until now, I had thought that the point of a CTO was to make a patient well again. If the point is no more than to get him to take his medication, we are saying that medication should be forced on a patient even if it is doing him no good and even if it may lead to harm. Such an attitude in the highest ranks of the medical profession shows, I have to say, why patients need protection from certain doctors and why some of us have been arguing strongly for safeguards in the Bill, such as therapeutic benefit.
Will the Minister undertake to ensure that the code of practice is quite clear about the ultimate purpose of a CTO? In the light of the attitude reflected in the letter to which I referred, does he not agree that the view recently expressed by the Royal College of Nursing that compulsory medication should not be used as a substitute for adequate mental healthcare is absolutely to the point? To return to the questions that I asked earlier, if a doctor’s sole purpose in using a CTO is, heaven forbid, nothing more than to get a patient to keep on taking his medication, when is the end point reached in that process, how will a doctor know and at what point along the road do the conditions attached to the CTO become inherently oppressive and unfair?
My Lords, obviously this is a very important debate. Let me respond to a number of points raised by noble Lords. I come first to the question of evidence. Of course there has been considerable discussion about the evidence that underpins the proposals. We have had a debate about the evidence commissioned by my department—or my previous department—and, as ever with these matters, noble Lords have brought their interpretation to that evidence. Clearly, one has to say that there is a lack of what might be called gold-standard evidence available anywhere in the world. We must rely on the evidence that is available and we sometimes have to accept its limitations.
There is no doubt that around the world there is evidence to show the potential of supervised community treatment to prevent harm. Indeed, closer to home, Scotland has been mentioned in this House on a number of occasions, although noble Lords have for some reason been rather quiet about it in relation to supervised community treatment. But there we have it—in Scotland, you do not have to be detained before you are eligible for the benefits of supervised community treatment. Circumstances sometimes make comparisons rather difficult, but throughout the world it is clear that community treatment orders of one kind or another are increasingly accepted. I remind noble Lords that we propose supervised community treatment only after immediate prior detention in hospital for treatment. So we are proposing a system with narrow eligibility, which is found in the majority of jurisdictions that use such orders. In answer to some of the other points raised, I do not think that this has always been recognised.
The noble Baroness, Lady Barker, asked about the factors that a clinician must consider when making an initial decision about the patient’s eligibility for supervised community treatment. As part of this process, the clinician must decide whether he needs to be able to recall a patient to hospital. For this purpose, the amendment in the name of the noble Lord, Lord Patel, allows a clinician to take into account factors that are relevant to that decision, including the patient’s history. It is important that a clinician can consider all relevant factors, an obvious example being the patient’s current medical state. Other relevant factors might include the degree of recovery of symptoms, any suicidal ideas or feelings of hopelessness, which will be important predictors of likely risk. In addition, a patient’s insight and attitude to their treatment, and the protective circumstances into which a patient would be discharged, might be relevant. These are all factors that may not be evident in the patient’s history.
The amendment has the effect that the responsible clinician must consider the risk of the patient’s condition deteriorating in the community when deciding whether it is necessary for him to be able to exercise the power to recall the patient to hospital. This means that, in order to place a patient on supervised community treatment, the responsible clinician will need to be able to show that he has properly considered and, if appropriate, assessed the risk of deterioration—otherwise, his decision could be open to challenge in the courts. I hope that that clarifies the position for the noble Earl, Lord Howe.
The noble Earl, Lord Howe, also asked whether a patient should be able to challenge the conditions of community treatment orders. We discussed this before. My right honourable friend Mrs Winterton, the then Health Minister, said in Committee in the Commons that for supervised community treatment to work a patient must accept and be ready to co-operate with the conditions of a CTO. There would simply be no point in setting a condition with which a patient would not comply, because nothing hangs on a failure to comply. I very much take his point about the code of practice. The code of practice will ensure that patients and those close to them will be involved in agreeing the conditions. On account of that, a third-party appeals process would not be appropriate.
In response to the other question that the noble Earl, Lord Howe, raised, I accept that if a patient goes on to supervised community treatment, and it is no longer necessary for that treatment to apply, the last thing that we would want is for that patient to have to remain on supervised community treatment. I understand his point about what I guess he would call defensive medicine by the clinician. We will have to address that through the code and clinical professional practice. I assure him that we will do so. However, given the clinician’s responsibility to themselves, to the patient and in law, they must apply the provisions as laid down in this Act. The Act ensures that, where a patient no longer needs to be subject to supervised community treatment, that patient should no longer be so.
A lot of our debate has been about the context of practice within the law. I accept that one of the concerns in this whole mental health debate has been about clinical practice. As we now move forward with a Bill that will, we hope, shortly be an Act, I emphasise again to noble Lords that whatever the disagreements there have been—and there have been many—we have worked hard to try to meet the major concerns. I know that we have not met all those concerns and that some noble Lords passionately argue for further changes. However, I think that we have reached a position where, with the code and with the regulations, we can determine and do everything we can to ensure that the practitioners out there understand the law and good practice, so that we can develop mental health services in the way that noble Lords have expressed a desire to see them develop. Above all, this legislation will prove to be a foundation on which to take forward the provision and development of services in the interest of both the public and the patient.
As these are my departing words as a Health Minister, let me say that it has been a great privilege to have served in this position. I am most grateful to all noble Lords who have taken part in these extraordinary debates. I end by paying tribute to parliamentary counsel and to the Bill team, who have done a magnificent job of work under great pressure.
On Question, amendment agreed to.
Motion, as amended, agreed to.
My Lords, I beg to move, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 41, at end insert “but do propose Amendment 41A as an amendment to Commons Amendment 41, and Amendments 41B to 41D as consequential amendments to the Bill”.
41A: Line 7, leave out paragraph (d) and insert—
“(d) it is necessary that the responsible clinician should continue to be able to exercise the power under section 17E(1) above to recall the patient to hospital;”
41B: Page 25, line 45, at end insert—
“( ) In determining whether the criterion in subsection (7)(d) above is met, the responsible clinician shall, in particular, consider, having regard to the patient's history of mental disorder and any other relevant factors, what risk there would be of a deterioration of the patient's condition if he were to continue not to be detained in a hospital (as a result, for example, of his refusing or neglecting to receive the medical treatment he requires for his mental disorder).”
41C: Page 63, line 17, leave out sub-paragraph (iii) and insert—
“(iii) that it is necessary that the responsible clinician should be able to exercise the power under section 17E(1) above to recall the patient to hospital;”
41D: Page 63, line 27, at end insert-
“( ) After subsection (1) insert—
“(1A) In determining whether the criterion in subsection (1)(c)(iii) above is met, the tribunal shall, in particular, consider, having regard to the patient's history of mental disorder and any other relevant factors, what risk there would be of a deterioration of the patient's condition if he were to continue not to be detained in a hospital (as a result, for example, of his refusing or neglecting to receive the medical treatment he requires for his mental disorder).”
Moved accordingly, and, on Question, amendment agreed to.
Motion, as amended, agreed to.