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Mental Health Act: Reform

Volume 620: debated on Wednesday 20 December 2000

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5.19 p.m.

My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Secretary of State for Health. The Statement is as follows: "With permission, Mr Speaker, I wish to make a Statement on the Government's plans for new mental health legislation, set out in the White Paper Reforming the Mental Health Act which my right honourable friend the Home Secretary and I are publishing today. This includes our plans for managing patients who are dangerous and severely personality disordered.

"Millions of people—perhaps as many as one in six of the population—face a mental illness at some point in their lives. About 630,000 patients with serious mental health problems are being cared for by specialist mental health services across England and Wales at any time. For every individual with serious mental health problems, there are many others—families, carers, friends, and the wider public—who are affected, sometimes with tragic consequences.

"It is for these reasons that the Government have made improving mental health services a key clinical priority for the NHS.

"First, we have made investment a priority. For the first time, ring-fenced funding is expanding what have for too long been Cinderella services within the NHS especially for those who are most seriously ill. By April next year we will have in place almost 500 extra secure beds, at least 320 extra beds staffed 24 hours a day, 170 assertive outreach teams and every patient with complex mental health needs will have access to services 24 hours a day, seven days a week.

"We have already recruited 3,000 new staff in mental health services. The NHS Plan we published in July announced a further £330 million investment in those services over the next three years. There will be further substantial increases in staff and new investment in specialist community health services and improved primary care services for all people with mental health problems. This investment will ensure public safety and improve patient care.

"Secondly, we have made reform a priority for mental health services. Last year we published the Mental Health National Service Framework to give local health and social services for the first time clear national standards. It will tackle the lottery in care which means some patients in some areas missing out on services and treatments that others receive as of right. It provides a clear statement for patients and their carers about what services they can expect wherever they live. It has been widely welcomed by patients, carers, clinicians and managers.

"The White Paper we are publishing today will now underpin those improvements in mental health services with reforms to mental health law.

"Good quality care and treatment is the key to making sure that most people with mental health problems never need to fall within the scope of mental health legislation. Despite public perceptions to the contrary, the overwhelming majority of people with mental illness are a threat to no one. Indeed, many mentally ill patients are among the most vulnerable in the community. Reducing the stigma which attaches to people with mental illness should be a priority for any caring, civilised society.

"There will always be some people, however, with serious mental disorder who do not seek care and treatment when they need it. Sometimes they do not recognise how ill they are; sometimes they are so disabled by their mental illness that they are not able to seek help; and sometimes they choose not to do so. In some cases, this means that a person with serious mental disorder will pose a significant risk to other people in their family or in the community as well as to themselves.

"The Government have a duty to protect both individual patients and the wider public where a person poses such risks. Mental health legislation should do just that.

"The current 1983 Mental Health Act is largely based on the last major review of the mental health legal framework which took place in the 1950s. Since then the way services are provided has dramatically changed. More seriously the current laws have failed properly to protect the public, patients or staff.

"Under existing mental health law, the only powers compulsorily to treat patients are if they are in hospital, but the majority of patients today are treated in the community. Public confidence in care in the community has been undermined by failures in services and failures in the law.

"The policy lost public confidence because in too many cases neither services nor the law properly protected either patients or the public. There have been no requirements for local health and social services to exchange relevant information about patients. Services have too often worked in isolation from one another. Too often, severely ill patients have been allowed to drift out of contact with mental health services altogether. Many patients have failed to comply with treatment. Clinicians have had to wait until patients in the community became ill enough to require admission to hospital. This has prevented early intervention to reduce the risks to both patients and the public. In particular, existing legislation has failed to provide adequate public protection from those whose risk to others stems from a severe personality disorder.

"As a result, patients and the public alike have been put at risk. They have been denied the protection they need. The tragic toll of over 1,000 suicides and 40 homicides every year involving patients who have been in touch with mental health services in the previous 12 months graphically illustrates the failure of the old legal framework. It is outdated. It is in desperate need of reform.

"Our proposals clarify the circumstances when care and treatment should be provided without the consent of a person with mental disorder either in their own interests or in the interests of public safety. They introduce new safeguards to protect a patient's rights where care and treatment is given without their consent.

"We have consulted widely over the last year on our plans for reform. They will mean major changes in four areas. First, safeguards will be improved for patients. Removing an individual's liberty against their will is a very serious step to take and must be balanced by suitable safeguards which are fully consistent with the Human Rights Act.

"For the first time then all decisions to apply compulsory powers to treat a patient for more than 28 days will be subject to independent scrutiny by a judicial body—the new mental health tribunal. The tribunal, which will be chaired by a senior lawyer, will consider the care and treatment plan proposed by the clinical team. It will take independent advice from medical and other experts and from patients or their representatives. Its decisions will be binding on the NHS and will be regularly reviewed. Patients who are subject to compulsory powers will as now have the right to free legal advice. They will also for the first time have a right to help from a specialist independent advocacy service.

"A new commission for mental health will also be established with a clear remit to monitor the quality of decision-making and whether the powers in new legislation are being used in a way that is consistent with the key principles that underpin it. The commission will provide new safeguards to protect the rights of people with long-term mental incapacity who are in need of specialist treatment for mental disorder but who are not able fully to participate in decisions about how that care is provided. The commission will be fully independent and will report annually.

"Secondly, there will be new safeguards to protect patient and public safety by extending compulsory treatment powers from the hospital ward into the community. The complexity of current laws which mean that there are several routes to compulsory treatment will be simplified. In future there will be a single entry point to compulsory treatment based on a full and fair assessment of each individual's care and treatment needs.

"New care and treatment orders will mean that patients subject to compulsory treatment, whether in hospital or in the community, will have to comply with the terms of their treatment programme. Refusal to do so could result in the patient being readmitted into hospital. Care plans will take into account a patient's best interests and any risk that they pose to other people. Compliance with treatment and contact with services will both be enforced under the new legislation in a way that was never possible under the 1983 Act.

"Care and treatment orders in the community will allow clinical teams to intervene earlier to prevent a patient's condition deteriorating. The risk that patients may pose to themselves or to others should be reduced as a result.

"Thirdly, public protection will be further strengthened by introducing new duties, backed up by robust safeguards, to cover the disclosure of information about patients suffering from mental disorder. Inquiry after inquiry has demonstrated that a breakdown of communication between local services responsible for a patient's care has been a significant factor in many of the homicides and suicides committed by severely mentally ill patients. This situation cannot be allowed to continue.

"There will be new powers to exchange information between statutory agencies to parallel the other steps the Government are taking to improve co-ordination between health and other local services.

"The Government are also committed to improving the level of service provided to victims generally and to giving proper recognition to the needs of victims of mentally disordered offenders in particular. The new legislation will allow victims of mentally disordered offenders to be given appropriate information about the offender's discharge as well as his detention. We also aim to enable victims to make representations to the mental health tribunal when it considers discharging the offender from hospital.

"Fourthly, there will be new criteria giving clear authority for the detention of patients who pose a significant risk of serious harm to others as a result of a mental disorder. That will include the detention of dangerous people with severe personality disorder. The Government are determined to deal with the challenge to public protection posed by this small group of people.

"Our proposals have been the subject of extensive consultation following publication of the joint Home Office and Department of Health document in July 1999. At present neither the law nor services are geared to cope with the risks posed by dangerous people with severe personality disorder. Many cannot be compulsorily detained in hospital because under the current law they can be defined as untreatable. Many are sent to prison after committing a serious crime and are a danger to the public on release. As a consequence, there has been a gap in the protection that mental health laws should afford the public, a gap we will now close.

"In place of the flawed concept of treatability, new criteria will separate those who need treatment primarily in their own best interests from those who need treatment because of the risk they pose to others. In cases involving those who present a high risk of harm to other people, the use of compulsory powers will be linked to a care and treatment plan which describes how to treat the underlying mental disorder and manage behaviours arising from that disorder. Compulsory treatment can go ahead only after a full assessment by doctors and with the agreement of the independent mental health tribunal. Those high-risk people who are before the courts for an offence will be able to be remanded for assessment and treatment.

"Similarly, my right honourable friend the Home Secretary will have powers to direct those already serving a prison sentence for assessment and treatment. Subject to the new mental health tribunal, dangerous people with severe personality disorder will be able to be detained for as long as they continue to present a high risk to others—if necessary, indefinitely. It should go without saying that the full range of safeguards which I outlined earlier to the House will apply to this group of people.

"The Government recognise that taking new powers to deal with those posing the greatest risk to the public will not by themselves be enough to safeguard the public. New specialist services are needed too. In the recent spending review, £126 million has been allocated across the Department of Health, the Prison Service and the Home Office to develop assessment and treatment services for this high risk group.

"The extra resources will allow extra staff to be employed, provide 320 new specialist places in high security settings within the Prison Service and the health service as well as 75 specialist hostel places. New approaches to the assessment of this group are currently being piloted in both the Prison Service and the NHS. Treatment pilots will begin next year. The evidence will be used to inform future decisions about how best new services should be structured.

"These changes amount to the biggest shake-up in mental health laws in four decades. They will strengthen the current law. They will introduce new safeguards for patients. They will improve protection for the wider community. Taken with the major investment and reforms that are now taking place in our mental health services, these proposals will enhance the safety both of patients and of the public. I commend them to the House".

My Lords, that concludes the Statement.

5.33 p.m.

My Lords, I welcome the White Paper and thank the Minister for repeating the Statement.

The House should be in no doubt of the importance of these announcements for the future of mental health services in this country. I agree with the Government that mental health is a clinical priority for the NHS and that the legal framework is outdated and in need of reform. The Opposition will back fully many of the proposals and aims adumbrated in the Statement. In particular, we agree that as much as possible should be done to reduce the stigma attaching to mental illness. Get rid of the stigma, and you are more than half way to achieving what in general we lack at present, which is an attitude of acceptance and tolerance of mentally ill people by the community at large.

We also agree that all patients who are mentally ill should have access to treatment appropriate to their needs in the most appropriate clinical setting. We acknowledge and welcome the new resources that the Government are directing to the delivery of care. That said, we are dealing here with some extremely complex and troubling issues. Since the publication of the Green Paper on mental health just over a year ago, many people have been worried that the prime focus of government thinking and of government pronouncements appeared to be on the issue of dangerousness and on the need to introduce mechanisms for compulsory detention of those with a severe personality disorder who pose a risk to others or to themselves. Although the Statement makes it clear that such people are small in number compared to the large number of people with a treatable mental condition, the whole balance of the Statement is, I think, regrettably skewed towards this subject and away from others of at least equal importance. The impression that this creates is perhaps a little unfortunate. I do not wish to underplay the need to protect the public where that is necessary. This is a very real concern. But it does little to advance the cause of reducing stigma if we dwell too much on dangerousness and compulsion at the expense of those many other people who represent no danger at all and who simply want, and who deserve, better treatment and a better service.

In seeking to protect the public from dangerous individuals, we must also beware of putting new mechanisms in place that lean too far in the other direction; in other words, mechanisms which allow far too readily for the indefinite detention of people who have done no harm to anyone and indeed may never do so.

I welcome the proposals for the creation of a new mental health tribunal and of a commission for mental health. But I should welcome, too, the Minister's clarification of the whole issue of compulsion. Although there may be place for compulsion in extreme cases, both compulsory detention and compulsory treatment should be regarded as a last resort.

Can the Minister also enlarge on a passage of the Statement which is unclear to me? It speaks of introducing new criteria to replace the concept of treatability, which up to now has determined whether or not a patient can be compulsorily detained in hospital. It may be right that treatability is no longer an appropriate criterion in this context; but if that is so, why does the Statement go on to refer to people with severe personality disorder obtaining treatment under a care and treatment plan? I thought that the whole issue with PD was that what we call personality disorder is made up of those categories of mental disorder that are considered untreatable. Can the Minister explain what lies behind this part of the Government's thinking?

Can he also say what place the Bournwood judgment has in the White Paper and whether in particular the Government acknowledge the need to build in a coherent set of provisions to take account of a patient's mental capacity in determining whether or not treatment can be compulsorily administered? What place do advance directives have in the Government's plans in this area?

In speaking of a single point of entry for compulsory treatment, as the Statement does, what arrangements do the Government envisage for initiating what I could perhaps be forgiven for terming loosely the "sectioning" process in an emergency? Will a psychiatrist or clinician, acting alone, be permitted to detain a patient in the first instance, as the current Mental Health Act provides for?

I welcome the Minister's acknowledgement of the value of advocacy for mental health patients. Does he agree that in this context safeguards should be in place to enable patients to receive full information about the treatment that is proposed for them, including the risks of that treatment and its possible side-effects? As the Minister will be aware, there are strong feelings among mental health charities and organisations that special safeguards should continue to apply to psychosurgery, electroconvulsive therapy and longterm drug treatment and perhaps should be extended to such areas as polypharmacy and force feeding. Does the Minister also agree that if we are to focus, as we should, on the needs of the patient, it is important to provide the patient with access to an assessment of what are his or her needs?

There is much here that we can welcome. We look forward to contributing to the debate on these important matters over the weeks and months ahead and, in due course, to the introduction of the new legislation.

5.40 p.m.

My Lords, I thank the Minister for repeating the Statement. I am sorry that our principal spokesman on health matters, my noble friend Lord Clement-Jones, is unavoidably absent and thus unable to reply to the Statement. We welcome much of what we have heard and, in particular, the way in which the Government have progressed from their position in the Green Paper to take greater account of the response of the Select Committee.

This is a very difficult area in which it is vitally important to balance the rights of individuals to their liberty with the rights of those in the wider community to their safety—something which has exercised many, for example, in the Russell case. It also concerns caring for extremely vulnerable people and I agree with the noble Earl when he said that this is a much wider area than simply the protection of the public.

There is much in this White Paper that we welcome and that will be welcomed by clinicians, patients and carers in the field of mental health. We welcome the proposal to establish an independent mental health tribunal to scrutinise, within 28 days, cases in which compulsory powers have been taken to treat a patient. We also welcome the provision of specialist advocates and legal aid to patients.

Nevertheless, we have a series of questions. We remain concerned about the criteria for the detention of patients who are deemed to pose a risk to others. I wonder whether the Minister could clarify what those criteria might be? I note also that the Government speak of,
"the detention of dangerous people with severe personality disorder".
Can the Minister comment on the statement by Dr Mike Shooter of the Royal College of Psychiatrists that,
"the link between severe personality disorder and dangerousness is extremely tenuous and poorly researched … most people with a severe personality disorder are not dangerous and most people who are dangerous … will not have a severe personality disorder".
As the Minister has himself said, most patients with mental illness are in fact very vulnerable and often pose a greater danger to themselves than to others. Can the Minister comment on the difficulty of identifying and treating those who might be a danger to others? Can the Minister also say a little more about how his proposals would fit in with the Human Rights Act?

Given the positive proposals in this Statement, can the Minister comment on how long it may be before parliamentary time might be made available for this legislation, and when it might be implemented? Can the Minister also tell us what might be done in the meantime to provide atypical drugs with less severe side-effects to promote compliance in treatment where appropriate among mental patients?

Will the Minister also give the House further information about the provision of resources to support these measures, especially when hearing in mind the current severe shortage of psychiatrists and psychiatric nurses? However positive some of these proposals may be, if they are under-resourced, they will mean little. Given that the last mental health Acts were passed in 1959 and 1983, I am sure that the Minister would agree that this is a once in a generation opportunity.

5.44 p.m.

My Lords, I should like, first, to thank the noble Earl and the noble Baroness for their welcome for the broad principles contained in the Statement and, indeed, for their constructive responses this afternoon. Perhaps I may say to the noble Earl that I very much agree with him as regards the priority which mental health is to be given in the National Health Service. I believe it i s significant that mental health is one of the three core priorities of the health service, alongside coronary heart disease and cancer services. It is very important that everything we seek to do in relation to legislation is underpinned by a proactive development of services in the National Health Service. The one goes with the other.

I also accept that the issue of stigma is one that we have to tackle with great energy and perseverance. The fact that so many people in our country suffer some degree of mental illness at any one time is surely the foundation on which we need to build. We need to work together with statutory agencies and voluntary organisations to promote a much more positive attitude towards mental health and towards those who suffer from mental illness.

The noble Earl was right to say that we are dealing with complex and troubling issues here. I felt that the Statement struck a balance between necessary concern as regards safeguarding individuals from self harm and protecting the public in general from risk. However, in order to see a balanced picture of what we seek to do in this area, noble Lords need to take the Statement together with our intention to reform mental health legislation alongside the priority generally being given to mental health services within the NHS and to the publication of a national service framework which will enable us, over the 10-year time-frame of the national service framework, to produce a much higher quality and more robust service.

The noble Earl asked me, quite rightly, about a number of issues relating to the safeguards that necessarily will be made available for people who may be affected by compulsory treatment orders. I believe that the establishment of a new independent tribunal, which will review on a regular basis those decisions, the right of an individual to seek help from independent advocacy, the establishment of a new commission for mental health which, most importantly, will oversee the operation of these proposals, along with tighter criteria on the use of compulsory powers, will all ensure that a proper balance is struck between public safety and individual safety and the rights of individuals.

The noble Baroness, Lady Northover, asked me about these proposals in relation to ECHR considerations. My understanding is that Article 5.1 of the convention declares that,
"Everyone has the right to liberty and security of person".
This right to liberty is subject to express exceptions such as the lawful imprisonment of convicted criminals. A further exception to the right to liberty is the law for detention of "persons of unsound mind". Under that exception, a person suffering from mental disorder may be deprived of his liberty by being detained in hospital. The first essential is that such a detention is lawful and has been carried out under a procedure prescribed by law. This is to guard against arbitrary arrest. Of course, we shall ensure that any legislation brought before your Lordships' House is compliant with the Human Rights Act.

The noble Baroness went on to ask when legislation is likely to be brought forward. I am afraid that all I can say at this stage is that it shall be done at the earliest possible moment. Obviously, implementation will follow the legislation.

The noble Baroness also asked me about resources and staffing. Both the noble Baroness and the noble Earl were right to pinpoint these particular issues. I believe that there is good news in relation to staffing in the mental health field. Over the past two years we have been able to bring in 350 more consultants and over 2,000 more nurses. It is also significant and important to note that 21 per cent of the total number of new nurse consultant posts that have been approved come from the field of mental health. That is important both in itself and in the leadership that nurse consultants can give. It is also important in terms of giving a signal to people who wish to come into nursing that mental health is a particularly crucial field. Clearly, we want to attract high calibre people who will, as we know, have to work under extremely stressful situations. We want to see more consultant posts in the future. We have committed £300 million in the first three years in relation to the national service framework and we shall be looking to ensure that we have the resources necessary to implement those programmes.

The noble Earl, Lord Howe, asked about the issue of compulsion. I accept his point that it is very much a last resort. Our aim is to improve the overall quality of mental health services in the NHS so that people who may have come under an order in the past, or even in the present, can be treated in the normal way and an order will be a last resort.

The noble Earl asked about the issue of treatability. The change in approach that we want to make will aim to ensure the flexibility for compulsory powers to be used in whatever way best meets patients' needs and is consistent with any risks that they pose to themselves or to other people. It will also help to ensure that patients who require care and treatment under mental health legislation are not excluded because of too narrow a definition of mental disorder. One of the effects of the change will be to move away from the narrow concept of treatability that applies to certain categories of mental disorder in the 1983 Act.

So far as concerns the issue raised by the noble Earl in regard to the assessment and treatment of people with severe personality disorders, two pilot exercises are currently being undertaken, in Rampton Hospital and HM Prison Whitemoor, which are looking into the assessment and treatment processes and interventions to evaluate what actually works. This will very much inform the process of assessment and treatment in the future. I understand that it will be another 18 months before the pilots come to fruition, but they will be extremely valuable in enabling us to take forward these important issues. I hope that that answers most of the points raised.

5.53 p.m.

My Lords, perhaps the Minister will be able to help me on one matter. Over the years, I have drawn attention to the report of Lord Butler's committee in 1975 dealing with the mentally ill prisoner and recommending a reviewable sentence, a new form of indeterminate sentence which would operate on the basis of the prisoner being obliged to be reassessed every two or three years and not being allowed his liberty until the reviewing authority said that it was safe for him to be allowed to leave. On every occasion I have raised this matter, I have been told that the Government are giving earnest consideration to the Butler report and how it can be used and modified. It has been referred to from time to time during inquiries of the kind to which the Minister has referred, where murder has been committed by persons who have been given their liberty after being discharged from prison.

Can the Minister explain how this fits in with these proposals? I heard nothing which indicated that there was to be a new form of indeterminate sentence to deal with this problem. If there is not to be a new form of indeterminate sentence on the basis of or analogous to the reviewable sentence, there would seem to be a large gap in this proposed legislation.

I should also like to know how the compulsory detention of someone who is untreatable, and is known to be untreatable, can fit in with the ECHR legislation and fundamental rights. The suggestion that someone should be incarcerated without limit of time, having committed no offence at all and not being incarcerated for treatment because, ex hypothesi, there is none, seems to raise a very difficult question.

My Lords, as regards the noble and learned Lord's second point, we certainly wish to ensure that whatever proposals we bring before your Lordships' House will be complicit with the European Convention on Human Rights. A very important safeguard throughout these processes will he the role of the mental health tribunal and its ability to review cases and, for the person subject to such an order, the help of advocacy in relation to the issue to be decided by the tribunal.

As to the noble and learned Lord's first point, the new legislation that we propose will provide for the Home Secretary to direct a prisoner to undergo a specialist assessment for mental disorder, in addition to powers to transfer to hospital for treatment. Such a specialist assessment will take place in an appropriate environment, which could be in a hospital or in a designated section of a prison. In particular, this will allow for specialist assessment of prisoners who are high risk before decisions on possible transfer to a specialist mental health unit are considered.

When a transferred prisoner reaches the date on which he or she would have been released from prison, authorisation for continued care and treatment would be subject to the clinical supervisor submitting an application for approval by the mental health tribunal in civil proceedings, as outlined in the White Paper. Where the patient remains subject to compulsory powers on expiry of his or her restriction direction because of the risk of harm they pose to others, the tribunal ordering continuing care and treatment will be able to require that decisions on discharge, leave and transfer should be referred to it for prior approval.

My Lords, things have moved on an awful long way in the 15 years since I first became responsible for mental health within the noble Lord's department, both in the thinking about mental health issues and in the treatment and care of mentally ill patients. But, as I understand it—following on slightly from the noble and learned Lord's point—there has always been a problem with psychiatrists in the prison service.

The prison medical service has over the years had varying numbers of psychiatrists. The most important thing for a prisoner is to be identified as mentally ill or not. The only person who can do this is the prison psychiatrist. Are prison psychiatrists currently up to strength, or is this something that some of the extra £100 million-odd mentioned in the Statement will be spent on?

The Minister mentioned in the Statement the secure beds scheme and prided himself on an extra 500 beds. Does that mean 500 beds from now on, or are the beds already there? If so, from when, and do they exist in every health region?

My Lords, the noble Lord raises an important issue; namely, the overall quality of prison health services, particularly prison mental health services. There is no doubt that we need to see improvements in the overall quality of the service. In March 1999, the report on the future organisation of prison healthcare set out a number of recommendations for improving services overall, including an examination of both the quality of the service and the number of staff who should be employed, including consultant psychiatrists.

We accepted the report's recommendations. We have established a joint task force and a policy unit, which is working hard at visiting every prison and each healthcare centre, identifying those prisons where major investment needs to be made in terms of either capital or staffing. The important development is the endeavour to have the health service link with a local prison, so that there is a stronger interrelationship between local services and prison services. It means that the prison healthcare service is less isolated. It also enables people to transfer, so that there can be rotations of staff—people can perhaps work part-time in the health service and part-time in the Prison Service or they can go in for tours of duty. That will be the way in which we shall tackle some of the problems that the noble Lord rightly identified.

The noble Lord is right also to raise issues regarding the number of secure and medium-secure beds. The 500 beds are additional beds that we want to see brought in. I do not have the details of the timing and when that plan will come to fruition; clearly, it remains an important part of the whole process of improving mental health facilities that such facilities should be available. One of the problems in relation to prison healthcare services is, for instance, the backlog of prisoners who sometimes need to be transferred to other facilities. However, I am confident that we shall be able to make progress on that. It will be important, as was suggested, that facilities are placed in different parts of the country.

My Lords, I should like to probe further into the second point raised by the noble and learned Lord, Lord Ackner; namely, the position of those who are detained or threatened with detention because they are alleged to present a risk of harm to the public because of a severe personality disorder.

As I understand it, the term "severe personality disorder" is used to describe people who are guilty, or thought likely to be guilty, of anti-social behaviour on a significant scale but who do not suffer from any identifiable mental illness. What will the position be if such people have no convictions? What standard of proof will be required to authorise their detention? The Statement talks about a "high risk of harm". We need to know how high is "high". Does it mean the virtual certainty that they will commit acts of violence in the future—in other words, proof beyond reasonable doubt? If the standard of proof is lower than that, how can their detention be justified? Can we really detain someone because we think it more likely than not that in future that person will commit some act of violence, or perhaps even that there is a significant risk falling short of probability? Those are important aspects and I await the Minister's response.

My Lords, the noble Lord is right to identify this as an important issue. I am sure that when we debate the Bill in this House it will be a subject for the closest possibly scrutiny. I accept that the balance between the risk to the public and ensuring that people's individual rights are upheld becomes a crucial issue.

The consultation paper that led up to the White Paper and the proposal for legislation outlined the need for a systematic approach to the determination of whether an individual has a severe personality disorder and the level of risk that is posed to others. It said that any treatment needs would be assessed, leading to a plan of care and management to take account of public safety and the full range of interventions required.

The concept is that a screening assessment would take place in the Prison Service for those detained in prison and in the NHS for those detained under the mental health legislation or for those living in the community. The purpose of the screening assessment would be to establish whether there is sufficient evidence of someone having a severe personality disorder to justify a longer term intensive assessment and to establish whether the individual is sufficiently robust to undergo a full assessment. As part of the screening assessment, an individual's history would be considered and there would be an interview with clinical staff to assess suitability and to screen out more immediate mental health needs or other issues around treatment. The screening assessment would take place alongside the full diagnostic and assessment screening as to whether someone indeed had severe personality disorder and was dangerous.

I refer the noble Lord to the pilot work that is being undertaken in the NHS and in Her Majesty's Prison Whitemoor. These very ideas are currently being tested. At the end of that process we shall have a much clearer idea of where the balance is to be drawn. I accept that it is important to get that balance right. It is important that we also have the necessary safeguards—such as a mental health tribunal—to ensure that cases are subject to the appropriate review by people who are expert in these matters.

My Lords, as a former member of the All-Party Mental Health Group, I warmly welcome the intentions of the Government in this matter. For too long, the mental health service has been something of a Cinderella service.

However, will the Minister expand on a problem of which I had some experience as a constituency MP? I refer to the person who is allowed into the community but needs to take medication if his case is not to get much worse and who fails to do so: all kinds of problems and nightmarish scenarios can then occur. What in practice will be the position under the new legislation? Will that person have to report to a doctor's surgery? Will a mental health worker have to call at his house? How will that situation be dealt with in practice, bearing in mind that he may have to take medication three times a day?

My Lords, there are two issues here. One is the question of monitoring and reviewing the progress of someone who is subject to an order. The important point to make is that alongside the order is a care/treatment plan—the two will go together. It will be up to the responsible authorities to ensure that, when an order is made, a care/treatment plan is also put into practice. That will involve the various mechanisms in place to develop appropriate mental health services in the community, including assertive outreach teams. That allows for 24-hour contact seven days a week with vulnerable people.

At the end of that process, there is no question of medication being applied compulsorily within the community. But if the process breaks down and it is clear that an individual is not following the treatment programme and the order, it is possible to ensure that the person comes back into an institution where such medication can be given.

My Lords, I refer back to the question posed by the noble Lord, Lord Goodhart. I may not have followed the Minister's response carefully enough, but I am unclear about the situation of someone who has been declared "untreatable" but who has committed no offence and has not been charged with any offence. If it is decided that it is necessary to detain such a person, where will he be held? Will it be in hospital, despite the fact that he is untreatable, or in prison?

My Lords, it will depend on the circumstances of the individual concerned. We are piloting this approach in two different institutions—one in an NHS special hospital and one in a prison—to enable us to study the different experiences in relation to each institution. As part of our evaluation of the whole assessment and treatment process, we shall be able to form a judgment as to where the most appropriate provision is made. At the end of the day, it is most important that we have specialist provision available. In addition to the resources that we are investing in mental health services more generally, we shall be investing further resources in specialist places to ensure that we provide the right kind of circumstance in which those people can be properly looked after and treated.

My Lords, following on from the question just put by the noble Lord, Lord Cope, can the Minister say whether those who are sent to prison, although they have committed no crime, will be given better treatment in prison in terms of food, and so on, than prisoners who have been detained because they have committed a crime?

My Lords, that is not a matter to which I have given consideration. I do not have any particular experience of life in prisons. Indeed, in essence, such considerations would have to be a matter for the prison authorities, although I should have thought that there would be some practical difficulties in terms, if you like, of a two-tier system. The key safeguard in relation to anyone affected by the new legislation will be the position of the mental health tribunal, which will be able to review these matters on a case-by-case basis.

In addition, the establishment of a mental health commission, which will also be part of the programme of reforms, will allow the Government to have an advisory body that will consider all these matters to ensure that the legislation is being operated appropriately. It will also have a very important role in relation to the training of staff. Wherever staff are involved in the process, whether it be in prison, in the tribunals or in relation to the assessment teams that need to make such judgments, it is important for us to have as highly-trained staff as possible.