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Debates on Mental Health Bill

Mental Health Bill 2nd Reading 28th November 2006

Mental Health Bill HL

3.08 pm

The Minister of State, Department of Health (Lord Warner): My Lords, I beg to move that this Bill be now read a second time. There has always been, and will continue to be, much debate about the purpose and balance of mental health law. This area is controversial, and understandably so, as it involves issues of personal liberty and intrusion into people’s lives. However, the Bill is a relatively small part of the Government’s agenda for mental health. Perhaps more important is our progress on improving the range and quality of mental health services available across the country. Nevertheless, we need to ensure that our legal powers are as clear and up to date as possible.

The Bill primarily amends the Mental Health Act 1983 to help protect patients and the public from harm and to modernise the legislation to reflect current mental health service provision. It introduces new safeguards into the Mental Capacity Act 2005 for people who lack capacity and are deprived of their liberty in their own best interests. We also need to bring our legislation fully into line with the European Convention on Human Rights.

Although one in six of us suffers from a common mental health problem at any point in our lives, most of us will never need treatment under statutory powers. For instance, while over 900,000 people are seen by specialist mental health services at any one time, only about 15,000 of those are detained under the Mental Health Act. We do not need new legislation to go on improving services—we will continue to do so under general NHS legislation.

Let me be clear about the improvements we have put in place on mental health services, because this provides the context within which this legislation will be implemented. We are spending £1.25 billion more on mental health services than in 1999. That is an increase of more than a quarter in real terms. Mental health, at £7.2 billion, represents the largest single element of programmed budget spend in the NHS. There are now record numbers of staff working in mental health. Since we came to office, there are 9,400 more psychiatric nurses, 1,240 more psychiatric consultants and 3,080 more clinical psychologists.

We are improving access to mental health services through new outreach teams and crisis resolution teams to provide care in patients’ homes, through new early intervention services for young people and by providing more secure places for people with personality disorders. During 2005–06, crisis resolution teams provided 84,000 episodes of home treatment for people who would otherwise have been admitted to hospital. By the end of March 2006, about 19,000 people were receiving care from assertive outreach teams.

I recognise that a small minority of people at risk of harming themselves or others are in circumstances that justify treating them under compulsion. In those circumstances, a measure of compulsion may be the most compassionate thing to do. I accept that a high threshold needs to be reached before a clinical decision is made to detain and treat a patient under compulsion. The thresholds created by such criteria are fundamental to the balance set up by the Act. They establish when it is right that a clinician step in because the risk of harm to a patient or others outweighs a patient’s individual rights.

In any such legislative framework, we need to ensure that patients’ rights are safeguarded and that clinicians are clear about the process that must be followed under those circumstances. It is essential that detention and treatment under compulsion is only ever for a proper clinical purpose. The current legislation provides a framework of the kind that I described, but the Bill amends that framework with a number of key changes. The legislation needs modernising, because society and mental health services have changed since the previous Mental Health Act came into force more than 20 years ago.

I freely acknowledge that we had intended to replace current legislation with the previous Mental Health Bill published in September 2004. However, many stakeholders cited the positive aspects of the Mental Health Act 1983 in their evidence to the Joint Committee in the pre-legislative process. We have listened carefully to those views and to those expressed by mental health organisations, patients, clinicians and the general public. That has resulted in a shorter, more focused Bill covering essential measures. We now have a Bill that will help to ensure that people who need to be treated for the prevention of harm get the treatment that they need when they need it. Secondly, the Bill will bring the legislative framework up to date with current developments in mental health services, and strengthen patient safeguards.

Supervised community treatment is probably the key change in the Bill and is an area of some controversy. It is important not just from a patient and public safety angle but because clinical practice itself has changed. At present, most patients treated under the Mental Health Act are detained in hospital. That reflects the fact that, in 1983, most acute mental health services were provided in hospital. However the world has moved on and we now have a wide range of community-based mental health services, some of which I mentioned earlier. We also know that some form of compulsory community treatment is established in jurisdictions in New Zealand, Australia, Canada, Israel, Sweden, Belgium, Portugal and Scotland.

It is clear that there is now scope for some patients to be treated under compulsory powers but to live in the community, not in hospital. For suitable patients, supervised community treatment meets the need for a framework for their treatment and safe management in the community, instead of detention in hospital. That modern approach strikes a balance between individual autonomy and protection of the patient and the public.

I hope that we will not hear arguments in this House that we should go back to the future and reserve compulsion for detention in hospital. We have made it clear that, to be eligible for supervised community treatment, patients must have had an initial period of detention and treatment in hospital. This means that their medical condition and treatment needs will be well established before they go into the community. Criteria are set out in the Bill on whether a patient is suitable for supervised community treatment. It will be for clinicians, working with approved mental health professionals, to determine against those criteria whether a patient should be put on a community treatment order. There is no question of supervised community treatment being imposed on people who have not been detained in hospital first.

We know that some patients stop taking their medication or treatment once they leave hospital, and so relapse and end up being readmitted. This detrimental cycle is often referred to as the revolving door. Patients on supervised community treatment will benefit from a structure designed to promote safe community living. This will reduce the risk of relapse and re-detention. They will be asked to comply with conditions to help prevent relapse, such as living in a certain place, attending an out-patient clinic and agreeing to take medication under the direction of their responsible clinician.

If, despite all this, a patient’s mental health does deteriorate again, there will be scope to take action to prevent crisis. Under supervised community treatment, patients can be recalled to hospital, if they need to be, for treatment. This is important because the power of recall provides the means to tackle relapse, and to avoid its potentially adverse consequences for the patient or someone else. Recall to hospital allows patients to be treated quickly and to return to the community straightaway if it is clinically safe to do so.

I recognise that there were some concerns about our proposals for supervised community treatment, but we have tried to deal with them. I assure the House that it is not about forcing people to have treatment in the community. If a patient refuses consent to treatment, it can be given only on recall to hospital. Forcible treatment against a patient’s will cannot be given in the community where the patient lacks the capacity to consent unless the treatment is immediately necessary—for example, to save the patient’s life.

Supervised community treatment is a new, modern and effective way to manage the treatment of patients with serious mental health problems. It will allow patients, so far as possible, to live normal lives in the community. This will reduce the risk of social exclusion and stigma associated with detention in hospital for long periods of time or with repeated hospital admissions.

We have published a draft code of practice that provides guidance in more detail, and we are happy to have comments on how to improve it. Supervised community treatment will be suitable for a minority of patients who have already been detained in hospital. There will be clear criteria for eligibility, safeguards for patients, and strict provisions for review and appeal, exactly as they apply to detained patients.

Let me turn briefly to measures that simplify and clarify the current legislation. At present, a patient being treated under the Act often needs to be assigned to one of four separate categories of mental disorder. We wish to replace these with a simpler single definition of mental disorder under which a patient’s needs and risks, not the label that happens to be applied to a person’s mental disorder, determine when action is taken. This simpler single definition will also make the Act easier for clinicians to use and for others to understand. This will not alter the way in which the Act deals with learning disability. Similarly, alcohol and drug dependence will remain excluded from the definition of mental disorder, as they are now, but two other exclusions in the Act will be removed. The first relates to promiscuity or other immoral conduct, which is redundant. No one could now regard such behaviour as mental disorder. By contrast, the present exclusion for sexual deviancy is simply wrong. If a person has a clinically recognised mental disorder, the fact that the disorder manifests itself, for example, as voyeurism or paedophilia should not be an obstacle to using the Act where it is justified to protect the patient or other people.

We will also introduce a new requirement that appropriate treatment must be available for patients subject to detention in hospital for treatment or on supervised community treatment. This will reinforce the fundamental principle that detention and supervised community treatment must always be for a clinical purpose. The test replaces the more selective “treatability test”, whose many drawbacks include contributing to a culture in which certain groups of patients are labelled untreatable and thereby are denied services. That may have been convenient for service providers, but it was not very useful to patients and was sometimes dangerous to the public.

The appropriate treatment test is designed to ensure that no one will be brought or kept under compulsion unless suitable treatment is available for them. It will not be enough for treatment to exist in theory, which in itself is a considerable patient safeguard. The treatment must be not only available and appropriate to the medical condition but appropriate to the circumstances. For instance, factors such as how far the services are from the patient’s home or whether those services are culturally appropriate will need to be considered. That is very much in line with the move across the NHS towards more tailored, individual patient-focused services. It is a change that links mental health very much to the mainstream of NHS reform and improvement.

Another shift across the NHS has been the modernising of medical careers, making sure that the right person is doing the right job to the benefit of patients. In line with this, we intend to broaden the range of professionals who can take on the key roles of responsible medical officer and approved social worker. The responsible medical officer role is being replaced with the role of responsible clinician. A patient’s responsible clinician will have overall responsibility for their case and make key decisions, such as whether a patient should be discharged or go on supervised community treatment. Allowing the responsible clinician role to be taken on by a broader range of appropriately skilled and trained professionals will give hospitals the flexibility to select someone whose skills best meet the patient’s treatment needs. Where a patient mainly needs treatment from a doctor, such as medication, a doctor will be the responsible clinician. But, for example, if a patient has a personality disorder and the treatment mostly involves psychological interventions, such as cognitive behavioural therapy, a psychologist may have the skills most appropriate to the role of responsible clinician for that patient.

The current approved social worker role is being replaced by the role of approved mental health professional. The functions of the role will remain largely unchanged, but the role will be opened up to a broader range of professionals, often working in the same integrated community mental health teams as approved social workers.

We are committed to improving patient safeguards and will do this by taking a power to allow the time to be reduced before a patient’s case is referred to the mental health review tribunal. Of course, a patient can always apply for a tribunal hearing and this will not change their current rights, but it will improve the safety net for those who do not apply. Currently, patients who do not apply wait for six months before their case is referred to the tribunal. We want to reduce that, but we will not use this power until hospitals and tribunals have capacity to meet the reduced time limits. This responds to evidence provided to the Joint Committee.

Two other important patient safeguards are being introduced. The first will give patients the ability to apply to the county court to displace the nearest relative if they believe they are unsuitable; for example, if the relationship with the patient is abusive. This is important as the nearest relative has various powers under the Mental Health Act such as being able to apply for or to block detention, to request a review of detention and to receive certain information about the patient. The court will be allowed to displace the nearest relative indefinitely, making this difficult time less arduous and complicated for all those involved.

We will also make some amendments to the Mental Capacity Act 2005 in response to the 2004 judgment of the European Court of Human Rights. The court found that a man had been unlawfully deprived of his liberty in Bournewood Hospital because he had not been admitted under a legal process which included safeguards against arbitrary detention, and he was not able to benefit from speedy access to a court to consider his case. The Bournewood safeguards will protect the human rights of people who are not able to decide about their care and who, for their own protection, need to be cared for in a hospital or care home in a way that deprives them of their liberty. This could apply, for example, to some people with severe learning disabilities or dementia. These safeguards will set up a legal process of independent assessment of each case for depriving the person of liberty. Each person will have a representative who is given the right to initiate a further review of their case or to apply to the Court of Protection on their behalf.

We have recognised that clinicians have confidence in the 1983 Act and are familiar with it. We have listened carefully to the wide variety of strong views expressed. We have considered all the arguments and now have a balanced and focused group of measures that improve patient safeguards, modernise terminology and produce proportionate changes in the area of supervised community treatment that will benefit patients and the wider public in the small minority of circumstances where they are appropriate. We will of course listen carefully in Committee to any improvements that can be made and, as I said earlier, we are also willing to listen to any suggestions for improving the draft code of practice. We must recognise that changes in our mental health legislation are needed. They have admittedly been a long time coming but, the longer we delay, the more our mental health legislation falls behind the advances made in services and in human rights legislation. The time for change is now. I commend the Bill to the House.

Moved, That the Bill be now read a second time.—(Lord Warner.)

3.27 pm

Baroness Carnegy of Lour: My Lords, I am sure that the whole House has listened with enormous interest to the Minister’s very clear explanation of the somewhat complicated contents of this important Bill. As I listened, I found myself reflecting that occasionally, though mercifully not often, legislation is clearly needed but it is difficult to know precisely what changes to the law should be made or even what the alternatives are. This Bill is an example of that. It has a long history: seven years of careful and skilled consideration, including two previous draft Bills, two reports and much consultation. Yet there is still considerable anxiety and disagreement about whether what the Government are now proposing is right.

Unlike a number of noble Lords due to speak later in the debate, who know a great deal about the subject matter of the Bill—I have a former Secretary of State for Health sitting beside me, which is somewhat unnerving—I am a complete layman in these matters. I have not been formally involved in the previous consideration of the Bill, but I have a particular interest for three reasons. When, many years ago, I served as the chairman of a medical research ethics committee, we had within our area of responsibility a large hospital for people with severe mental health problems. Inevitably, some research proposals that came before us, such as trials of certain drugs, could be carried out only by involving patients in that hospital—patients unable themselves to give their assent to participate. The committee gave each proposal careful consideration, centring on the potential benefits for such patients of the drug, the safeguards and issues of assent. Difficult decisions had to be made, but I believe that they were not entirely dissimilar from those that have to be made on this Bill.

I have a personal interest in the Bill because of contact with mental disorder problems through cases among my own friends and family. I am sure that I share that experience with many other noble Lords. I do not believe that that contact is at all irrelevant to our discussions.

I am interested in the Scottish dimension to the Bill. It applies mainly to England and Wales, but there are cross-border arrangements in Schedule 5, under Clause 32. In addition, the Minister touched on the fact that the Scots Parliament has recently legislated on these matters and useful comparisons may be possible.

Quite a lot of the Bill is completely incomprehensible without the Explanatory Notes, due to how it is drafted in terms of amending other legislation. Having read the Explanatory Notes, I should like to make one general point on what lies at the heart of the main provisions of the Bill. I refer to rights—those of patients, children, their families and the rest of the community. The briefing I have seen—some of which I received only an hour or two ago—and the problems met by predecessor Bills centre mainly on deep anxiety about the rights of patients and of those suffering from a mental disorder, and what the Government propose for them. That is not surprising. This is, after all, a health Bill; it is about patients and of course Parliament must take those rights very seriously. It is always when the most vulnerable appear threatened that Parliament must be at its most vigilant.

We must be very careful in our considerations. Other people have rights, too, not just the most vulnerable. Parliament exists to protect the rights of all people and to balance them when they conflict. It is so easy, in our concern to protect those who cannot protect themselves, to forget the major threat those self-same people can be to others in certain circumstances, as well as to themselves. The court cases which have been discussed often in relation to the Bill illustrate this graphically and disturbingly, as did a moving article which some of your Lordships may have read in the Observer two Sundays ago. The father of a 17 year-old with schizophrenia described in simple, factual, unemotional detail how the system as it exists, operating with the best will in the world, handled the young man and his family, to the young man’s great danger and suffering, and who knows what fate.

The status quo will not do—the Minister has said that. It must be wrong in extreme cases, in the name of rights and freedom, to allow someone to fail to take his medication if that means he becomes dangerous to other people or to himself. It must be wrong, too, in the name of rights and freedom, to allow someone with a caring family to become homeless, unprotected and out of that family’s reach. It must be wrong, in the name of rights and freedom, to forget that sometimes, for some people, compulsory detention is salvation. Subsequent treatment in the community, if it can be made to work, may be able to be designed so as to be a salvation, too.

My simple point—your Lordships may think it is too naïve but I believe it is important—is that, as we work our way through these proposals, it must be possible to maintain a proper balance of consideration. This may be a health Bill about patients but it is also about families, friends, communities and public safety. The problems confronted by the Government in the Bill are difficult but they are real problems; they affect the freedoms and rights not only of the weakest but of us all. At the same time, let us remember that the system as it is cannot continue.

3.36 pm

Lord Rix: My Lords, the journey towards a new Mental Health Act over the past eight years or so has been a long one. I cannot help feeling that, although there have been some interesting steps along the way, the journey has taken us back where we started, with a rather disappointing Bill. It fails to take into account the concerns of most people who work in mental health services and of most people who use mental health services.

I had the privilege of serving with MPs and Peers of all parties on the Joint Committee on the draft Mental Health Bill under the chairmanship of the noble Lord, Lord Carlile. We heard evidence from a wide variety of experts before making a long series of recommendations which we believed would have substantially improved the legislation and created a legal framework for compulsory mental health treatment which would have enjoyed the support of most of those who required it. Reading the new streamlined Bill, it feels that the only point we made that the Government have accepted is that the 2004 draft Bill was too long and too difficult to follow. Indeed it was—but that does not mean that a shorter Bill is necessarily better, especially as the shorter Bill retains most of the provisions we were most concerned about and omits some of the better ones such as those relating to advocacy and improved patient representation. It may be that our report was too long and too difficult for the Government to understand too.

My role on the Joint Committee was to keep plugging away on the question of learning disability. I welcome the fact that the Bill’s single definition of mental disorder now excludes learning disability in most cases. But it retains the caveat that people whose only mental disorder is a learning disability may be subjected to compulsion where that disability,

“is associated with abnormally aggressive or seriously irresponsible conduct”.

These words are very familiar to me because they arrived in the 1983 Act after a long three-way process of negotiation on the telephone between the then Minister, the noble Lord, Lord Elton, myself, then in my capacity as secretary general of Mencap, and a copy of Roget’s Thesaurus. It was the best compromise we could then reach between the Government’s position that people with a learning disability should come under the scope of the Act, and my position that people with a learning disability are not ill and should not be treated as if they are. It appears that the Department of Health’s position, 23 years and a change of Government later, has not changed—but neither has mine.

Learning disability was not then, and is not now, a mental illness. In many cases, of course, where a person with a learning disability is aggressive or irresponsible, that can be a sign that he or she has a mental illness that would benefit from medical treatment—in which case they can be treated under compulsion if necessary anyway—but that is not always the case. It may, for example, be a sign that he or she is in pain or is otherwise distressed but has difficulty communicating this or explaining it to others, and is frustrated. Responding to a person’s pain or distress with detention and forced medication is unlikely to improve things.

I would much prefer to see a complete exclusion from the scope of the Bill of people whose only mental disorder is a learning disability. After all, if people with a learning disability lack capacity, and if treatment is in their best interests, they can in any case be treated under the Mental Capacity Act. That is an Act in which I also have an interest as I was part of the Joint Committee scrutinising it, when it was the Mental Incapacity Bill, under the chairmanship of the noble Lord, Lord Carter.

A recommendation both committees made regarding the Bills we were scrutinising was that principles should be on the face of those Bills, rather than being relegated to a code of practice. Such principles make legislation much easier for practitioners to understand, and form an important safeguard. However, while principles are now on the face of the Mental Capacity Act, the Government have so far refused to accept that they should be part of the Mental Health Bill. I hope that they will be able to change their mind on that, or, if not, that they can explain why such principles as best interests, non-discrimination, least restrictive alternative and child welfare are not compatible with the legislation as proposed.

The Mental Capacity Act is crucial to the Bill, as much of the Bill is concerned with amending that Act in respect of Bournewood patients; that is, patients who lack capacity and are deprived of their liberty. If, in redrafting the Mental Health Bill, the Government were motivated by the desire to avoid inordinate length and complexity, that concern appears to have disappeared in relation to Bournewood patients. The relevant sections of the Bill—Clauses 38 and 39, and Schedules 6, 7 and 8—amount to more than 50 pages.

The Bournewood provisions have received far less publicity than the other sections, but they were mentioned by the Minister, Rosie Winterton, on the “Today” programme on the day the Bill was published. She rightly noted that perhaps thousands of people who lack capacity may be being deprived of liberty, and that they currently do not have the same access to a mental health tribunal. Listeners might have been forgiven for assuming that the Government wanted to give them the same access to such a tribunal, but that is not the case. No, they have access instead to the Court of Protection, which lacks the expertise of the tribunal in making judgments about care plans and detention.

In fact, the Government’s proposals for Bournewood patients leave them lacking several of the safeguards enjoyed—if “enjoyed” is the word—by Mental Health Act patients. They may be deprived of liberty in an emergency for up to seven days, as against 72 hours for Mental Health Act patients. They may have the detention authorised for up to 12 months, as against six months for Mental Health Act patients. They have no statutory second medical opinion procedure for medication beyond three months or for electro-convulsive therapy. They have no entitlement to free aftercare for care and treatment consequent on the care and treatment they received on detention. While the safeguards for Mental Health Act patients and Bournewood patients need not be identical, those for Bournewood patients should not be second rate. I hope that the Government will think again about the unequal two-tier system they are proposing to set up and give better safeguards to patients who are, by virtue of their lack of mental capacity, perhaps the most vulnerable in the whole health and social care system.

The vulnerability of people with learning disabilities in residential care was shockingly highlighted earlier this year by the report of the Healthcare Commission and the Commission for Social Care Inspection on the abuse of patients in learning disability services in the Cornwall Partnership NHS Trust. The report was prompted not by the managers of those services, many of whom were culpably unaware of the abuse that was taking place, but by patients’ families and by the hard work of East Cornwall Mencap Society. Families and friends are often the first people to become aware of abuse or poor practice within hospitals and care homes, and yet the Bill proposes that the only person with any right to call for an assessment and authorisation of possible deprivation of liberty in a hospital or care home is the manager of the hospital or care home in question. I hope that the Government will consider amending the Bill to ensure that third parties will have the right to request an authorisation of the deprivation of liberty to make sure that the responsibility for identifying deprivation of liberty is not exclusively placed upon the very people responsible for depriving them of liberty in the first place.

Given the importance of ensuring that hospital and care home managers follow best practice in relation to the care of vulnerable people, I am very concerned that the focus on authorising deprivation of liberty may obscure the fact that, in almost all cases, deprivation of liberty is unnecessary and should not be authorised.

The Bournewood provisions should be about preventing deprivation of liberty, not rubber-stamping it. Depriving a person of liberty rarely, if ever, reflects best practice. Whatever else one might want to say about the detention in Bournewood Hospital of the autistic man known as HL, which led to the Bournewood judgment, it certainly did not represent the least restrictive possible care regime. It would be helpful if the Governments could give more examples of when a person who lacks capacity in a hospital or care home should be kept in circumstances which amount to a deprivation of liberty under Article 5 of the European Convention of Human Rights. I am not sure that this is very often, if ever, best practice and I am not sure that we should be writing new laws to allow it to happen.

I regret that this still seems a deeply flawed Bill. Those of us who have played a part in this eight-year process know that this is not for want of effort, evidence and argument. It is still not too late to undo most of those flaws. I know that noble Lords from all sides of the House and individuals and organisations involved in every aspect of the care and treatment of people with mental health problems will be working hard together to make improvements across the board. I urge the Government to listen to them.

3.46 pm

The Lord Bishop of Manchester: My Lords, as the noble Lord, Lord Rix, powerfully indicated from his very considerable experience and wisdom in this area, many aspects of the Bill are a disappointment. As he said, it marks the latest stage in a lengthy argument about the purpose of mental health legislation. The decision not to proceed with the 2004 draft Bill was wise, not least in view of the breadth of opposition to it. However, the Bill now before your Lordships has not taken sufficient account of the criticism brought against several of its proposals, not least, as the noble Lord, Lord Rix, indicated, by the comprehensive report of the Joint Committee chaired by the noble Lord, Lord, Lord Carlile of Berriew.

The Bill seeks to strike a balance between the rights and autonomy of patients and the safety of both patients and the public. Certainly, Christian teaching in its concern to protect vulnerable people requires due weight to be given to both aspects. Autonomy is a vital safeguard for mentally ill people in giving priority to their opinions, feelings and interests concerning care and treatment over and against the interests of others, including the relatively powerful professionals and institutions treating them. However, autonomy may need to be limited or indeed overridden, either because, as the noble Baroness, Lady Carnegy, said, someone poses a danger to themselves or, less commonly, to other people, or because their ability to make decisions has been significantly impaired by their illness. Regrettably, the latter criterion is absent from the Bill.

Six issues are of particular concern to these Benches. First, as the noble Lord, Lord Rix, said, is the absence from the Bill of a set of general principles for the care and treatment of people with mental health problems. That is very disappointing. Such principles expressed in statute rather than in codes of practice would be helpful to practitioners and reassuring to service users not only when facing questions about compulsory powers but as a broad guide to good practice.

Secondly, if the definition of “mental disorder” is to be simplified, as proposed in Clause 1, it is important that the specific exclusions from coverage of the Act should be maintained and, preferably, extended. Compulsory detention and treatment should be based strictly on mental disorder and should certainly not be used for the purpose of social control. I welcome the continued restriction on the circumstances in which people with learning disabilities can be subjected to compulsion, and the exclusion of substance abuse. I note what the Minister has said and what has been written in background material on sexual deviance. In Committee, it may be useful to debate all these matters and possibly certain cultural and political beliefs when considering grounds for exclusion. Problems in applying the categories should be tackled by training and not by the adoption of an excessively broad definition.

Thirdly, the potential danger posed by a relatively small number of people with severe personality disorders that are judged to be untreatable must not be allowed to blur the distinction between compulsory treatment and preventive detention. The criterion of “appropriate medical treatment” employed in Clauses 4 to 6 without the requirement of therapeutic benefit to the patient is unacceptably vague. It threatens to turn mental health professionals into guardians of public safety rather than what they are meant to be, which is agents of care and healing. If, as the Government argue, there is no desire to detain people without a clinical purpose, why not say so explicitly? Those who are untreatable but are believed to pose a serious risk to other people should be dealt with under criminal justice rather than mental health legislation.

Fourthly, there is perhaps the most controversial part of the Bill, the proposals in Clauses 25 to 29 for supervised community treatment. They arise from real shortcomings at present in dealing with patients who have been discharged from hospital and then suffer relapse in the community. However, those failings, which as we know sometimes have tragic results, are not solely the result of the absence of compulsory treatment. Too often, they reflect the inadequacy of aftercare and support services and failure to work effectively with patients and carers within the existing law. That said, I accept that there is a case for community treatment orders to be applied to what the Joint Committee described as a,

“clearly defined and clinically identifiable group of patients”.

That would entail raising the threshold of eligibility to include previous relapse, requiring consultation with carers, narrowing the conditions of the order to residence and availability for treatment, and setting a time limit. The requirement that a patient should abstain from particular conduct is, as the Mental Health Alliance has commented, tantamount to creating a “psychiatric ASBO”. We must think carefully about designing community treatment orders so that they will be effective for their intended purpose.

Fifthly, it is welcome that in Clause 38 the Government have moved to remedy the so-called Bournewood gap, which was referred to both by the Minister and the noble Lord, Lord Rix, by amending the Mental Capacity Act. While logical in its way, this has the effect of creating a complicated set of procedures with safeguards that are inferior to those of the Mental Health Act. Patients who lack the capacity to consent to detention and treatment will be disadvantaged in terms of their rights to a second medical opinion, to a hearing and to aftercare. They will be disadvantaged in the maximum length of a detention order and lack of access to a mental health review tribunal. In addition, their relatives will not be able to request an assessment of detention or an ordering of their discharge. This smacks of minimal compliance with human rights legislation and I hope that in subsequent debate in Committee your Lordships will be able to suggest suitable improvements.

Finally, I regret that the limited scope of the Bill has diverted attention from the primary need to improve mental health services. If we were to take seriously the right of patients to timely assessment of mental health needs, to independent advocacy and to non-discriminatory treatment, we would be less preoccupied with crisis intervention and a great deal of avoidable suffering and distress would have been prevented. The Scottish mental health Act of 2003 offers a good starting point in that respect. We will need to return to these urgent questions which, together with families and carers, directly affect one quarter of the population of this country.

Debate interupted

4.43 pm

Second Reading debate resumed.

Baroness Morgan of Drefelin: My Lords, as the Minister said, the Government are making enormous strides in the development of mental health services. They are spending £1.25 billion more on mental health services now than in 1999, an increase of more than a quarter. Most importantly, access to mental health services is improving with the provision of new outreach teams and crisis-resolution teams aimed at providing care in patients’ homes and early intervention. Outcomes for people are beginning to improve and suicide rates are the lowest since records began.

It is completely appropriate for the Government to be concerned to get the balance right between public safety and patients’ rights to mental healthcare and to endeavour to update mental health legislation to keep pace with the growth of modern community-based patient services. I think it was UNISON that, in its briefing on the Bill, said,

“progress towards reform of the Mental Health Act 1983 has hitherto been arduous”.

Members of your Lordships’ House who have taken part in the debate so far have echoed those sentiments. It has been a long road that has brought us to this point.

As this is going to be an involved debate, I shall not focus on areas that I know others are likely to cover. However, I would like to add my voice to concerns about the question of treatability by having a broad definition of mental disorder and a wide definition of treatment. I am concerned about the ethical position with regard to the use of treatment without specific or potential benefit to the patient for the purposes of control. I understand that there is a balance to strike in the interests of public safety, but I do not yet understand the safeguards in the Bill well enough to put my mind at rest in this regard.

I am also concerned about the detail underpinning the new community treatment orders, particularly issues about the nature of the conditions of residency and behaviour as well as questions about information sharing and confidentiality. Are we, for example, going to involve landlords in the making of these orders? Will neighbours be aware of these orders? A lot will depend on the trust that we place in mental health professionals to supervise the orders fairly and effectively.

I want particularly to focus on the missing word “advocacy”, to which the noble Lord, Lord Rix, has already briefly referred. Advocacy is key to promoting the rights and needs of those detained under mental health law. In a mental health context, an advocate is someone who supports another person in expressing their views and concerns; who helps to access information and services; who defends and promotes their rights, and explores choices and options. An advocate can reduce a person’s anxiety and promote a constructive relationship between the service user and the psychiatrist.

Being detained under mental health legislation can be an overwhelming and distressing experience. The support of an advocate can help service users to negotiate the complicated mental health system. For people in crisis who may feel that they have little control over what is happening to them, an advocate can be an invaluable source of support, representation and information. Experience shows that the early and ongoing support of advocates reduces the need for admission to hospital and involvement with other agencies such as the courts and homelessness services. Advocates can help by limiting the escalation of financial, housing, personal and medication problems. During episodes of hospital care, tensions can be eased, misunderstandings resolved and a constructive approach to recovery established through an advocate. As a result, the use of compulsory powers can on occasion be more short-lived and patients may be less fearful of compulsory care.

The Government have a duty to promote race equality and reduce racial discrimination under the Race Relations (Amendment) Act. It is well documented that people from black and ethnic minority groups have a significantly worse experience of mental health services. They are more likely to be treated under the Mental Health Act, to be sectioned, to receive higher doses of medication, as well as being more likely to be restrained or secluded while in compulsory care. I believe that introducing a statutory right to independent advocacy would be a positive step in promoting race equality and reducing discrimination. For example, an advocate can improve communication and the flow of information between parties, ensure that social, cultural and racial factors are appropriately considered during the consideration of care and treatment options, and ensure that the rights of the service user are upheld. Having access to an advocate can save time and even costs spent on tribunals and appeals because conflicts can be resolved without recourse to legal action. As I understand it from the charity Mind, there is also emerging evidence that advocacy is linked to a reduction in cancelled tribunal hearings, suggesting that advocacy can reduce hold-ups in the system and improve efficiency.

The Government have decided not to include a provision for advocacy services in the Bill. I want to question the merits of that approach, particularly as I understand that the Government are looking very seriously at how advocacy services can be improved and made more accessible. The Joint Committee on the draft Bill, to whose members I pay tribute for their amazing work in considering the proposals, came up with strong and thoughtful recommendations on advocacy. The Joint Committee said that there should be a duty in the Bill to provide independent mental health advocates to meet the reasonable requirements of patients as soon as any statutory procedure is commenced. It went further, recommending that there should be a duty to ensure independent advocacy for all patients with a mental disorder who should have an opportunity to use such services right from the start of an initial examination.

The Government responded positively to the committee’s recommendations, saying that they are keen to ensure that patients are given adequate support at all times when the new legislation is in operation. There was even talk about how codes of practice should be used. But now we find that there is no mention of advocacy in the Bill. This, as I am sure noble Lords will agree, is a missed opportunity that could easily be put right.

As I understand it, staff are very supportive of the idea of working with advocacy organisations. There are many parts of the country where best practice is already established. I am particularly concerned that advocacy services should be made available to people who are being considered for community treatment orders with conditions to which I have alluded. Such conditions, if breached, can put someone back in hospital; they can affect where people live and their behaviour. Would they, for example, cover how loud someone’s music should be played? Surely a vulnerable person in this situation is extremely likely to benefit from automatic access to an advocate.

If the Bill is to be a progressive strand in the Government’s already successful mental health strategy, perhaps the extension of control should be matched by the introduction of new rights of access to independent advocacy for the most vulnerable members of our society.

4.52 pm

Baroness Bottomley of Nettlestone: My Lords, I am more than happy to follow the noble Baroness and her call for advocacy. In a Bill where civil liberties are to be removed, we must make every possible effort to make sure that individuals have that right. It is a point made by many in the Mental Health Alliance. I do not think that anyone has so far paid tribute to the alliance. There was a time when 77 organisations coming together with a shared voice to articulate the needs of that group of patients so often overlooked within our health services would have been unthinkable. I warmly commend its work; I admire and respect all it has done, even though my conclusions are not entirely those of the alliance.

I am sorry that the noble Lord, Lord Rix, is not here. My own background was in the subnormality world. As a girl, I looked after subnormal children—as they were then known—on holiday. I was horrified that these youngsters had no proper clothes, no proper toys, no care and no nurture. I then worked in some of the subnormality hospitals where children, just because they had learning disabilities, had no proper rights. They were not properly regarded in the education system and were treated like sick people, not citizens. The dramatic change we have seen in our generation concerns people with mental health problems and those with learning disabilities who used to be incarcerated— out of sight and out of mind—in simply appalling institutions, facing abuse and difficulties. There has been a dramatic change, and I want to register that.

The great movement to get people out of long-stay institutions and into communities was enlightened. Dramatic new pharmaceutical products enabled people to live as decent human beings, without being a danger to themselves or others, and to improve their quality of life. What we have seen in the 10 years since I held ministerial office is a dramatic increase in psychological treatments. CBT is treated as an important port of call. I pay great tribute to the noble Lord, Lord Layard, and his work at the London School of Economics on The Depression Report. I am delighted that the report is from the Centre for Economic Performance as opposed to a health department. It will help us to remember that 1 million people are on incapacity benefit because of their mental health problems. What an appalling waste of talent.

The noble Baroness, Lady Morgan, rightly said that the suicide level has been falling, which is extremely good. During my term in office we introduced a preventive strategy, The Health of the Nation. As is the way in changes of government, the new Government introduced a dramatically new preventive strategy called Our Healthier Nation. The targets were almost identical, although no mention was made in the subsequent strategy of the previous one, which I thought was a little mean spirited. Suicide was one of the targets identified and how welcome it is that there has been a turn. But let no one be under any illusion: the most common cause of death for people between the ages of 15 and 34 is suicide, at twice the rate for men as for children.

The very eminent and distinguished Member of Parliament for Worthing West long ago used to be a transport Minister who worked hard to reduce driving accidents. But accidents on the roads are as nothing compared with the dangers of suicide. Therefore, as we discuss the Bill, let us remember that suicide is a critical cause of loss of life and contribution and that it causes great suffering to friends and family.

Last week I spoke for the Charlie Waller Memorial Trust. Charlie Waller, a successful account manager, was 28 when he took his life. His parents, in the way that some parents are extraordinary and remarkable, set up a foundation to ensure that more families did not have to live through the savage, traumatic loss of a successful young person. Through that foundation they have worked to raise the profile; to fund a chair at the University of Reading; for CBT outreach programmes in schools; for depression helplines for students; and so on. This Bill is only a very small part of what we must do more widely to promote an understanding of mental illness.

Of course, the mental health budget is always the easiest to raid because mental illness does not show so clearly on waiting lists; it is always the acute side that takes the glory and the priority. Our job, particularly in this House, is to speak for the inarticulate needy as opposed to the articulate greedy—whether they are the professions or the most forceful patient groups—who are always able to get to the front of the queue.

Probably unlike any other Member of another place, my endorsement when I first became a Member of Parliament was by the noble Baroness, Lady Howe, and by a professor of child psychiatry at the Maudsley, where I was working. I have a professional background in this area and Professor Lionel Hersov gave me a clean bill of health and thought it was an excellent idea that I should pursue a parliamentary path.

However, at the same time, I was also a magistrate and a juvenile court chairman. There is a similarity between what we have seen in childcare and what we see in mental health. There was a time when children were incarcerated in long-stay institutions because their families were thought not to be fit. In some parts of the world, you can still see, tragically, children in long-stay institutions. Then children were returned to their families but, time and again, there were appalling child abuse incidents. The story was always the same—Louis Blom-Cooper never stopped; he had a season ticket for writing reports—because in the community it is much harder to hold the pieces together. It is the same for mental health. It is also the same in alternatives to custody for people who are not in prison institutions. It is much more complex to organise the psychologist, the nurse, the doctor, the teacher, the social worker; it is much harder to have a co-ordinated approach.

The murder of Jonathan Zito by Christopher Clunis was a classic example of what we saw in the childcare system: the different elements in the community had simply not co-operated and collaborated. What is more, some of the patients about whom we are speaking are not particularly loveable, endearing or engaging of the professional services when they are feeling ill, or when they may not be feeling ill but are being troublesome to the community. When a patient going through a psychotic episode failed to turn up at a clinic, they did not say, “Oh dear, where is this needy patient?”. They said, “Thank goodness for that, we can concentrate on the worried well, on other patients, on other areas”. So the moment when that patient most needed a co-ordinated approach was the moment they slipped through the net, and somehow it was no one’s job to go and search them out. After the Christopher Clunis case I asked for a judicial inquiry. I am not one who thinks an inquiry is the answer to every problem, but I felt that we could begin to learn the lessons we had learnt on childcare.

Then there was Ben Silcock, the young man who walked into the lion’s den at London Zoo. The story was that he had been involved in a Mind day centre in the Roehampton area, but had proved too difficult. I think Mind is a brilliant organisation, and this is no criticism of it, its work or its campaigns. The fact was, however, that when he was suspended from the day centre no one thought it was their job to find out what had happened to him. I had a most moving meeting with his parents.

In 21 years as a Member of Parliament, I came across more examples than I care to mention of parents saying, “I know my son or daughter is failing to take their medication. I know they’re not complying with the treatment that is arranged for them. I am regarded as part of the problem”. They had read RD Laing, and they were the schizophrenogenic mother of all our pasts. They were perceived as the problem, not the answer. When all else failed, however, some other parents were supposed to cope. I became convinced that we needed to do more to identify those mental health patients who needed a more careful regime and someone to watch over them.

As a result of that, we moved towards supervised discharge and supervision registers. Again, overpressed, underpaid, overworked care staff tend to do the work that is statutory. With the best will in the world, those who are not on a list or a register, if there is no statutory force, so often fall through the net. I understand why supervised discharge has not delivered the results, or been as useful as might have been anticipated. It is the reason why today I have sympathy with the Government’s approach, in so far as I believe there is a role for supervised community treatment orders, but with many more safeguards than are currently in the Bill.

The noble Baroness referred to advocacy. That must be a requirement, and goodness knows why, when it was in the original draft Bill, we do not see it now. Many other groups have talked about the special needs of children. Again, they were to have a special mention, but they have been omitted; not only the needs of children and young people whose parents may be subject to orders, but children and young people who have their own difficulties. I fail to understand why. Still a fifth of those young people admitted to an institution under an order are in an adult ward. That cannot be right.

In my view, we need to take this Bill extremely seriously. I will give it the benefit of the doubt, despite this Government’s history of endless punitive measures—50 Home Office measures and the appalling Jack Straw severe personality disorder legacy as an early response to these difficulties. Provided that this is a small element of a comprehensive commitment for us all to do better for people with severe mental health problems, I shall, with modifications, support the Bill.

5.04 pm

Lord Patel: My Lords, I am pleased that the Government have introduced the Bill to amend the Mental Health Act 1983 and the Mental Capacity Act 2005, although if the briefings that I have received are anything to go by, there is widespread concern about the Bill’s detail, indicating that it will have to be amended if it is to be supported.

The general feeling seems to be that the Government have ignored many of the recommendations of their own expert committee appointed in 1998 and of the 2004 joint parliamentary scrutiny committee. While I support many of the proposals, I too am concerned about some clauses. I start by making some general comments. While I am not a clinician who has worked in the mental health field, patients with mental disorders span all medical specialties. My comments and concerns are therefore directed primarily at how the Bill will affect the care of patients with mental disorders, particularly as the provision of services for such patients is not optimal, despite the increased funding that we heard about.

Reform of mental health legislation must be set in context. Improving patient care, including addressing safety issues, depends on a range of measures. First, it must not add to the stigma and discrimination suffered by people with a mental disorder. It must not reduce the likelihood of people feeling able to seek help early, to talk about their fears and difficulties without fearing scorn, humiliation or loss of status, freedom or job. Secondly, it cannot replace the need for adequate resources, including a well trained workforce and access to a range of treatments, including psychological therapies and new-generation medications. Thirdly, healthcare law should exist to enable patients to receive treatment within a clear legal framework, to improve personal health and well-being, to protect against abuse and, through these measures, to increase the health and safety of the nation.

The fundamental principles that support all good medical practice—respect for patient autonomy and supporting people in making their own healthcare decisions, even if ultimately they make what doctors consider unwise decisions; and doctors acting in patients’ best interests if they are unable to make decisions for themselves—are as important for mental health as for any other branch of medicine.

The medical profession, particularly the Royal College of Psychiatrists, is very concerned about the way that some politicians, members of the Government and parts of the media have linked the need for new mental health legislation with violence. Major problems with the mental health services include lack of trained staff, unpleasant in-patient environments, and lack of funding for research on both the causes of mental illness and potential treatments. While doctors agree that very few people with mental health problems pose a danger to others, the poverty of appropriate resources and training, along with poor communication between agencies, have been highlighted by homicide inquiries as issues which need attention.

Neither the most recent homicide report on the care and treatment of John Barrett, which highlighted significant failings in the system, nor the inquiry into the case of Michael Stone, which was highly influential in directing the Government’s development of this legislation, recommended any new legislation.

There is a widespread perception among the general public that violence, and homicide in particular, are rising problems caused by the introduction of care in the community and loopholes in the current Mental Health Act. That assumption makes good tabloid headlines but is incorrect. The latest Home Office figures show that in 2002–03 there were 873 homicides in England and Wales, of which less than 4 per cent, approximately 35, involved suspects with a mental illness. Furthermore, the number of homicides committed by people with a mental illness has stayed constant for many decades. The number has not risen since community care began in earnest in the early 1990s. That is not to minimise the consequences of violent behaviour committed by the mentally disordered or not, which could be profound. The mental health field is acutely aware of the impact on victims, which is perhaps exacerbated when there is a perception that the violence was both preventable and predictable.

In his oral evidence to the Joint Committee that scrutinised the 2004 draft Bill, Dr Tony Zigmond, the vice-president of the Royal College of Psychiatrists, said,

“the only way that I can generally decide that somebody is a danger to themselves is because they have come to see me, I have interviewed them and they have told me what is in their mind. If they do not do that, I will not know about it; and so any law that drives people away from the service, I have to say, increases risks for everybody and damages health … we need to get people to come and see us”.

The starting point in risk reduction is encouraging patients to seek help and talk about their thoughts and feelings. It is hard to believe that potential patients will not be deterred from the services if they know that mental health professionals will have a duty to enforce treatment on them, not only in hospital but in the community, even where they are perfectly able to make decisions for themselves and when the treatment may not even benefit their health.

The Government propose to improve public safety through increasing the scope of compulsory powers into the community and in detaining people even if they cannot get any therapeutic benefit from it. Health professionals believe that is the wrong approach, and it could damage the relationship between doctors and their patients and therefore may, paradoxically, increase risk.

Before I make specific comments about the clauses, let me state what are important principles that should form part of the Bill. A modern mental health Act should commence with a statement of principles to guide professionals in exercising their powers and the courts in interpreting the law. It is important that these principles appear on the face of the Act, as they are vital to the fair operation of the legislation, which has such powers over people’s lives. The Mental Capacity Act, as other noble Lords have mentioned, and the Children Act both contain that principle, as does the Mental Health (Care and Treatment) (Scotland) Act. Why should the Act for England and Wales not have that statement of principles?

I will now briefly comment on the Bill, which proposes changes in seven key areas. I support the principles in several of the areas, although the details will need to be debated further. Broadly, I support Clauses 21 to 24, which refer to the nearest relative; Clauses 8 to 20, which refer to widening the range of professionals able to exercise statutory functions; Clauses 30 to 31, relating to tribunals; and Clauses 38 to 39, relating to putting in place safeguards for treatment of patients and people who lack mental capacity. I know that those views are not shared by some noble Lords who have spoken.

I have greater concerns about some of the other clauses. To me, the major problem with some parts of the Bill is that it is over-inclusive, which may lead to a greater use of compulsory power. The Bill broadens the definition of “mental disorder”. It also removes exclusions, thereby widening the scope of people who may be detained. It abolishes the “treatability” test, thereby opening the possibility of detaining people for whom there is no therapeutic benefit, and it introduces community treatment orders with what seems like a low threshold. The cumulative effect of all those could be that people get trapped into a long-term system of compulsory care, which Professor Genevra Richardson likened to a lobster pot—easy to get into but difficult to get out of—the impact of which will disproportionately affect those from ethnic minorities.

Exclusions should form part of the Bill; they make clear what kind of behaviour, beliefs and lifestyle should not be brought within compulsory powers. Again, they form part of legislation in Scotland, New Zealand and some Australian states. The Bill removes the “treatability” test and replaces it with a test of appropriate treatment. Legislation that takes away a person’s liberty must at least confer on them a health benefit. The breadth of powers given to clinicians should be more precisely defined.

The Bill introduces a form of community treatment order. While a small number of patients respond well to CTOs, studies, including the Cochrane Library’s figures, do not show great benefits. Legislation needs to be cautious and CTOs need to be targeted on a very small group of so-called revolving-door patients.

Finally, I am disappointed not to see in the Bill safeguards for the care of children and young people with mental disorders, for such safeguards are badly needed if we are to improve the care of children with mental disorders. I would also like to see reference to appropriate care and treatment of mothers and babies in specialised units where mother and baby could be admitted. Such is the provision made in the Scottish mental health Act, particularly as regards mothers with post-natal depression with children of less than one year old.

I hope that we will have opportunities to debate some of those concerns during later stages of the Bill. For now, as I said in my opening remarks, I am pleased that the Government have brought forward the Bill, despite the difficulties.

5.16 pm

Baroness Gibson of Market Rasen: My Lords, the Bill before us is a very far cry from the first proposals for a new Mental Health Bill—a Bill which was to be comprehensive and would have started almost from scratch on mental health legislation. In 2004, a draft Bill was produced and widely considered. It was large, complex and not widely popular. Now, as a result of much comment and debate, this Bill—shortened, and somewhat simpler—is to be considered. It does not remove all previous mental health legislation; rather it modernises and builds upon it. No Bill will ever satisfy everyone, and, as we have heard, there are varying views on whether this Bill suffices. One of the challenges before us is to ensure that, when it leaves this place, it does.

As the Secretary of State for Health, Patricia Hewitt, said during the Queen’s Speech debate in another place:

“For far too long, mental health services were neglected”.—[Official Report, Commons, 16/11/06; col. 149.]

This Government have invested in our mental health services and this Bill is a further stage of that process.

The Bill contains some important new proposals. I welcome the introduction of treatment supervised in the community for those who have already had treatment in a hospital. It will, one hopes, prevent patients relapsing and having to be readmitted to hospital. I welcome such provision because there is no doubt in my mind that such care in the community is needed. I am familiar with the case of a man, now in his forties, who has suffered with mental health problems since his teens. He has been hospitalised on numerous occasions and then released without sufficient support. Needless to say, after exhibiting behaviour that was dangerous to his family, to the general public and, most worryingly, to himself, he has had to return to a secure hospital. I am sure that other noble Lords know of similar cases.

As the Secretary of State for Health also said last week:

“Hon. Members are only too aware of the problem of those mental health patients who are treated in hospital and whose condition improves with care and medication, but who leave hospital and then fail to keep up their treatment. In a small minority of cases, involving some of the most seriously ill people, that can lead to terrible and tragic results”.—[Official Report, Commons, 16/11/06; col. 150.]

If the man who I know could be professionally supervised in the community, it would be good not only for him and his family but for society as a whole.

The Bill has other positive aims: to expand the skill base of mental health professionals and, as a vital part of that, to ensure that they have the right experience and training; to improve safeguards for patients who are unable to decide for themselves about their care; and to provide speedier and more frequent mental health review tribunals. The latter would be of great assistance not only for those with mental health problems but also for those directly involved with them.

Something I support, but which I recognise raises concerns in many quarters, relates to the current “treatability test”. The Bill introduces appropriate treatment to replace the treatability test. This clause will apply to all the longer-term powers of detention. However, patients will not be detained compulsorily, nor will their detention continue unless they are able to receive the appropriate medical treatment that they specifically require. Any such restrictions will apply only when it is considered by those with responsibility for the diagnosis that patients may be a risk to others.

I accept that such considerations are a fine balancing act, but there will always be some people who are not in a fit mental state to give their consent to treatment and they must be protected from harming themselves as well as others. It is also vital that appropriate treatment is available for all patients regardless of their label or diagnosis. I believe that that is more likely to be achieved under the new proposals rather than the existing ones. I know that other noble Lords think differently.

I also welcome a debate on whether a relative is always the best person to have responsibility for those with mental health problems. I am sure that in the vast majority of cases a close and loving relative will have the best interests of their loved ones at heart but, by the nature of human relationships, there must be instances where others who are not relatives would be better able to reflect what the individual concerned would wish for himself or herself.

Like other noble Lords, I have received a number of briefs from different organisations. A small number of them have been disappointingly negative. I do not think that it is of any help to send me or other noble Lords a brief that totally condemns the Bill. Constructive criticism is important and welcome, but negativity alone is of little use to the debate. A number of the briefs pointed to the Scottish legislation, which has already been mentioned in the Chamber, which is preferable to what the Bill contains. In particular, the Scottish community treatment orders are recommended, as they are confined to conditions regarding treatment and residence rather than the wider proposals contained in the Bill.

That view is supported by the Law Society among others. Its chief executive, Fiona Woolf, believes that,

“the Government has tinkered with our mental health provisions, rather than introducing radical reforms”,

and have thus missed a golden opportunity for advancement in this area. Perhaps the Minister could comment on this preference for the Scottish legislation in his summing up.

A particular brief that raised matters of some concern for me was that from Barnardo’s, which concentrated on the mental health issues of children and young people. The noble Baroness, Lady Bottomley of Nettlestone, has already mentioned that. The Barnardo’s brief covered two angles: those younger people who have mental health problems and those who look after adults with mental health difficulties. Both those groups of young people are among the most vulnerable. Genuine worries are raised about the current treatment available for children and young people who develop mental health problems and whether the Bill’s proposals will tackle what Barnardo’s believes to be a “national shortage of treatments”, especially among 16 to 18 year-olds.

Barnardo’s hopes that the Bill will be amended to add emphasis relating to age assessment, treatment and aftercare for the younger folk who have specific problems. They believe that that should include care and treatment by professionals trained in child development and child psychiatry as well as aftercare support, which is so essential to bring back stability to their lives.

The second element—parental or other adult care—raises stark issues indeed. Barnardo’s estimates that up to a quarter of adults with mental health difficulties are being cared for by young people. Such circumstances can place unbearable strain on those carers, who become old before their time from their burdens. Such youngsters must surely be able to access the widest possible range of support, and I hope that my noble friend will agree with that view.

Finally, it seems to me that, for this Bill to succeed, above all, emphasis must be placed on providing enough properly trained staff and enough resources generally. Without those two basic requirements, the Bill will not do what it sets out to do. Can the Minister reassure the House that the relevant staff will receive the training necessary for their varied roles and that sufficient resources will be available to put the Bill’s proposals into effect?

5.25 pm

Baroness Knight of Collingtree: My Lords, there is no doubt that there is much concern in the minds of a large number of professional medical groups, who have written to us about the Bill. Concern has also been expressed in the House this evening. Some people are anxious about what is in the Bill; some are anxious about what is not in it. But, as it is put forward as an amending Bill to the Mental Capacity Act 2005, my concern is whether it will be effective in strengthening something that the earlier Bill was alleged to ensure when it was introduced but, in the event, has not.

Just before the 2005 Act was introduced, I initiated the Patients’ Protection Bill, which sought to end the practice of denying food and fluids to elderly persons in NHS hospitals because, or often because, the beds that they occupied were wanted. There was an amount of evidence of that happening. It even happened to a friend and ex-colleague in the House of Commons whose wife was in hospital. He visited her as much as he could and then, after about three days, he realised that no one was feeding her or bringing her water or anything else to drink. When he asked about it, he was told, “Oh, we aren’t feeding her and we certainly aren’t giving her any liquids of any kind”. He had not asked for that and neither had she. No one in the family had asked for that to happen to her, yet, without any consultation at all, the poor woman was dying in front of his eyes. He made an awful fuss—none of us will be surprised about that—and the provision of food and liquid was reinstated, and quite right too.

It was that and other cases that impelled me to bring in my Bill. I had support from all parts of this House when I did so, but the Government blocked the Bill. However, the noble Lord, Lord Filkin, who at the time had responsibility for constitutional affairs and to whose courtesy, kindness and caring I warmly pay tribute, sought me out to assure me that the then Mental Capacity Bill would do what my Bill would have done to end this abhorrent practice.

I have stood aside to give every opportunity for the Act to do what the noble Lord, Lord Filkin, promised it would, but I am becoming extremely concerned at the growing amount of evidence that it has not done so. Only a couple of weeks ago, the BBC screened a truly chilling programme, put together by a very experienced researcher and broadcaster, Sally Chidzoy. It highlighted the statement of one hospital doctor, speaking in court and under oath, in which he said that two or three patients per week were dying because they were not given food or fluids. “I see it happening all the time”, he said, and that was just in one hospital.

Those words refer to a case that took place before the Mental Capacity Act had had a chance to work. The inquest took place earlier this year and those words clearly refer to what takes place now. The screening of that programme has apparently led to a very large number of calls. I am told by the BBC that it has had no fewer than 136 calls providing further information about the same sort of thing happening all over the place. I am very concerned about this. The calls have come from nurses and relatives of patients detailing cases where elderly patients have been deprived of food and fluid and have died as a result. Again and again, letters, e-mails or phone calls cite examples. It seems that it is very common for cups of tea or glasses of water deliberately to be placed where a patient cannot possibly reach them.

In the programme, a nurse who was speaking of the present—not before the Act came into force—said, “As soon as elderly people come in, they are doomed. If they are over 60 or 65 they are condemned”. Those are not my words but they come from a nurse in a hospital who has seen it happening. A daughter said that her mother begged for a drink but the dreaded “Nil by mouth” sign was on her bed. The daughter complained and after some days drink was reinstated, but it was cancelled again and, in the view of her daughter and those who visited her, the woman went backwards. In another case, although doctors said that the patient was allowed free fluids and that she was tolerating fluids, nurses did not give her any. Another lady said, “There is not a lack of time to feed patients; it is the lack of care that worries me”.

I fully accept that in some cases—such as patients who have suffered strokes—the patient’s condition directs that they must not be fed normally, but too often other methods of giving sustenance, such as tubes and pegs—I know that one is much easier to administer and to tolerate than the other—are not applied and the patient is starved to death. That is a terribly painful and dreadful thing and it is going on at the moment under our very noses.

I am aware that the GMC is on record as saying that causing patients to die by withholding food and fluids is unacceptable and illegal. It may be unacceptable, but it is certainly happening and I am afraid it is not illegal for one very good reason. A few years ago the medical profession, backed, I believe, by the courts, reclassified feeding sick people as medical treatment. That was a licence to kill and, I fear, it is regularly used as such. Yet it is patently ridiculous to say that giving people a meal is giving them medical treatment. Do we sit at the long table in our dining room to receive medical treatment? Are school dinners medical treatment? Does a husband take his wife out on their wedding anniversary to a nice restaurant for medical treatment? Of course not.

There is another odd thing. How is it that, when doctors use their rights to withhold food and liquid, no relative needs to be informed or consulted and yet when medical treatment which involves apparatus and machines, such as those that artificially keep people alive, is administered there is recognised consultation before it is embarked on? Relatives can, and do, go to court and sometimes the court upholds their right to keep the machine going, yet, apparently daily, patients are suddenly cut off from sustenance without a word to relatives and life is ended with no consultation at all. If no friends or relatives visit you, I tremble for your chances.

I give notice that I shall seek to move an amendment at the appropriate time to give elderly patients better assurances of their safety and rights while in the care of the NHS. I am certainly not saying that that will be easy for hospitals to implement. Nurses are certainly extremely busy, doctors always have too much to do and money is tight. But in a country which claims to have principles and whose people certainly have rights, we can tolerate no longer the regular, deliberate killing of sick people because it causes too much trouble to keep them comfortable and to look after them properly. I am certainly not saying that there are not thousands and thousands of examples of wonderful loving care given daily in our hospitals, but these reported instances besmirch the reputation of everyone connected with British hospital care.

I should also point out that the 136 people who contacted the BBC after the programme were from only one small area of the country—the programme was called “Look East”—so I do not know what would happen if the programme were broadcast more widely. I cannot think that that practice happens in only one place so that means that there is a general situation which cannot be permitted to go unchecked.

It alarms me that some who have serious complaints about what has happened to their loved ones are frightened to speak out because they fear that they may be discriminated against if they themselves need care. It certainly angers me that a hospital—the Norfolk and Norwich University Hospital—should have tried to influence a coroner to discount evidence given by two consultants Dr Michael Jarmulowicz and Dr Philip Howard, because they are Roman Catholics. I have the submission made by the hospital which is an attempt to influence the coroner. It is entitled:

“Submissions … on behalf Norfolk and Norwich University Hospital NHS Trust”.

Speaking of the first doctor it says that,

“his impartiality and his position as an expert witness is in doubt owing to his close association with The Guild of Catholic Doctors”.

Referring to Dr Howard it says:

“The impartiality and position of Dr Howard as an independent expert witness is disputed. In common with Dr Jarmulowicz, Dr Howard is also a member of The Guild of Catholic Doctors”.

Does that mean that he is not competent to give his expert medical evidence? This has actually happened and fairly recently too. I ask the Minister directly: is it legal to claim that evidence in court should be ignored on those grounds? Are expert opinions to be waved away because those giving them are Catholic or Muslim or Jewish or Methodist? God help us.

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5.38 pm

Lord Bragg: My Lords, I declare an interest as president of Mind which has been working for better mental healthcare over the past 60 years. Much has been achieved in mental health awareness and in mental healthcare over the past few years. The stigma is finally showing signs that it will slink away. The taboo is starting to lose its dread. The understanding that mental illness can be just as harmful as physical illness, that it needs just as much attention and that, like physical illness, it can be overcome has deepened, especially over the past four or five years. Even newspaper language, which in certain quarters used to be almost an incitement to lynch or to ostracise, shows signs of achieving some reason and sanity.

Despite this Government’s laudable track record in areas of illness and disability, those to whom I have spoken in Mind and the Mental Health Alliance—a unique coalition of 78 organisations committed to better mental health legislation—are convinced that to let this Bill pass without serious amendments would be to fail an already disadvantaged section of our society and to miss a great opportunity. I share those views. I agree with my noble friend Lord Warner that the time is right for a major rethink and revaluation of mental health. Sadly, this Bill does not do that.

At times, the Bill seems to be rooted in the stereotype that those suffering from severe mental health problems are likely to be threatening and dangerous. More than one in five of us will, at times, suffer from often grave mental health problems—one in five. Look around at those we know and know of. This alone makes a mockery of the murderous stereotype.

There is a growing culture of alarm in this country. The fact that it comes at a time when crime is falling does not make that perception less influential, but this does not mean that we can therefore tolerate witch hunts. Yet the few high profile cases of people experiencing severe mental ill health who kill receive lurid and disproportionate media coverage. They leave the impression that tragic deaths have occurred because of a failure of the law to protect us. Yet the clear message from official inquiries into these incidents is that the key to avoiding them is not to reform mental health law but investment in mental health services.

There is, for instance, no evidence that extensions in powers to allow compulsory treatment in the community will improve outcomes for people experiencing mental distress or increase public safety. As that is the case, are we not in some way talking about an unfortunate short-term reaction—even a snatch and grab at a problem—and not a detailed address to the realities involved?

There is a definition of mental illness in the Bill. It is a useful starting point, but only if accompanied by exclusions to that definition. It would be absurd, for instance, to claim that there is merely one definition of physical illness. Yet, as those of us in Mind and other like organisations continue to say, the afflictions of mental illness are just as varied as physical illnesses, from the temporarily disabling to the crippling, in both cases.

For compulsory treatment, the Bill removes a current stipulation that treatment should have a therapeutic benefit and requires only that treatment is available as “appropriate”. This is surely too vague a basis for coercive powers and is not based on therapeutic value. In effect, it would allow the incarceration of mentally ill people who have committed no crime. It would also, many psychiatrists say, turn them into jailers. Furthermore, it would allow curfews to be imposed on patients in the community, which the Royal College of Psychiatrists fears would dissuade people coming forward to seek help.

Research suggests that compulsory community treatment is not effective. It even deflects attention from the real issue of providing high quality aftercare and support. If the Government are looking at what can be achieved in the community then, as well as aftercare and support, they should be looking at tackling those factors that contribute to the social exclusion and isolation of people who have experienced mental distress. It is those factors, as well as lack of care and support—as much as any failure to comply with treatment—that contribute to people relapsing after they have been discharged. To do all this is extremely ambitious, but the ambition to serve the needs of the most fragile is a noble one. I believe that the people of this country will support it.

There are points not in the Bill which should be there. Patients should have the right to a full assessment of their health and social needs before a crisis point, and a right to advocacy services to help negotiate their way through a complex system. Mind’s chief executive, Paul Farmer, said when this Bill was published:

“It’s quality health services that will protect people, not this legislation, opposed by mental health experts across the board. We hope that the widespread concern in Parliament will lead to the essential changes that must be made to give any chance of providing an effective mental healthcare system. It is vital that health legislation is focused on benefiting and treating health problems. Treatment that cannot improve or treat a person’s health should not be forcibly given to them”.

The Bill must also address the distressing over-representation of black and minority ethnic people in the mental health system. Again, this is difficult, but essential for individuals and, in the round, for society. The Scottish mental health Act includes measures to provide services and accommodation for mothers, of children less than one year old, with post-natal depression. Surely there should be similar measures for women in England and Wales. All in all, treatment for those with a mental illness must be on the same basis, wherever possible, as with those with a physical illness.

Finally, the Government have a fine record in tackling the difficulties in our overall national health. They have lacked neither courage nor patience. But I hope that this debate will persuade them to reconsider this Bill and their position in this too long underserved part of our health provision.

5.44 pm

Lord Patel of Bradford: My Lords, I begin by declaring my interests. First, I am chairman of the Mental Health Act Commission. Secondly, I was responsible for leading the development and implementation of the Government’s black and minority-ethnic mental health programme, “Delivering Race Equality in Mental Health Care”.

Through these roles I have both challenged and worked alongside the many architects of this Bill. It is important and necessary to acknowledge that mental health legislation is a difficult and complex area but nevertheless crucial to get right. Many of us know that the 1983 Act needs to be brought into the 21st century. The hard work and dedication of all those involved in drafting the Bill before us today should be recognised and recorded.

Like many of your Lordships, I share a number of concerns about the general issues raised by the Bill. For example, the proposed single definition of mental disorder and the removal of the treatability test must be of concern to this House. I am also exercised by a number of other matters. I flag these up in no particular order: the importance of having guiding principles in the Bill, and not solely in the code of practice; the needs and rights of informal carers; provision of improved specialised advocacy, something not present in this Bill which was in previous Mental Health Bills in 2002 and 2004 and, if I dare say so, one of the few changes broadly welcomed; improving the consent provisions of the Act, which include the role of the second-opinion appointed doctor; the needs of prisoners with mental illnesses who do not currently receive mental health care; the use and abuse of seclusion and restraint; information-sharing between professionals and public bodies; advanced statements by psychiatric patients, allowing them to refuse potentially life-saving psychiatric care; and widening the groups of professional staff involved in compulsion. I am particularly exercised by the idea of losing the specialist expertise of the approved social worker, and I am not simply saying that because I am a qualified social worker.

I expect others will want to discuss these points in more detail, but my intention today is to focus on why we are discussing amendments to the Mental Health Act. The noble Baroness, Lady Barker, referred to this Bill last week as,

“a Home Office Bill … masquerading as a health Bill”.—[Official Report, 21/11/06; col. 252].

Yes, some of the amendments being proposed are about public safety, but let us not lose sight of the fact that this debate should be concerned equally with the protection of patients. People detained under the Mental Health Act 1983 are among the most vulnerable in our society, and I want to address how this Bill will ensure the protection of three of those groups in particular, and how I think we can ensure that this Bill provides solutions that meet their needs.

I shall focus on children and young people, older people and people from black and minority-ethnic communities. These are three of the most vulnerable patient groups affected by this Bill. Three cross-cutting themes will help us to ensure that amendments to the Mental Health Act can provide solutions and meet their needs. First, there need to be sufficient and robust statutory procedures of notification—I will elaborate on that in a moment. Secondly, there must be an adequate system for monitoring, especially what I rather loosely term “ensuring that we look under the bed”. Thirdly, we must ensure that CPA—the care programme approach—is given statutory force as the underpinning process of the proposed community treatment order.

The Mental Health Act Commission has voiced concerns about the treatment of children and adolescents under the Mental Health Act within adult mental health facilities in each of its past four biennial reports. A survey of all relevant providers for 1999–2001 found that 62 per cent of all children and young people under 18 admitted to in-patient care under the Act were placed on adult wards. The commission issued a report in December 2004, examining a period of 18 months during 2002–03 when service providers were required to notify us—something not routinely done—when a child was admitted to an adult ward, so that we could undertake a follow-up visit and examine the relevant issues. During this period we received notification of 270 children, some as young as 12, being admitted to adult mental health wards. Two-thirds of these young people were boys or young men, and a third were girls.

I am sure that your Lordships would agree that these children were not only in an inappropriate environment which did not cater for their basic educational, recreational and social needs, but liable to be bullied, have illegal, non-therapeutic or recreational drugs forced upon them, and witness some distressing and violent scenes. Few staff working on these wards had received any specialist training to work with children or adolescents with mental health needs. The children were as young as 12—that is surely a situation we must urgently address. We must ensure through this legislation that the needs of children and minors, especially those under 16, are protected and that alternative, appropriate care is provided.

Older people are often subject to unacceptably low standards of care, which result in abuse. They, especially those with dementia, are the group most likely to be de facto detained without the benefit of the protections of the Mental Health Act. They are not formally detained, yet they are unable to leave. Their expectations about their rights and protections are low and they put up with treatment that would horrify many of us. I am reminded of the significant, albeit short-term, increase in the use of the Act to detain elderly, incapacitated people as a result of the Bournewood case. Therefore, I welcome the proposals in the Bill to incorporate changes to the Mental Capacity Act 2005 to deal with the so-called Bournewood gap, but I remain concerned that they do not yet provide adequate protections. There is still concern that decisions under that Act will not be subject to independent scrutiny. I wish to propose a solution to this lacuna.

Finally, I wish to draw your Lordships’ attention to the continued unacceptable situation, which I believe to be one of the most significant remaining scandals in the health and care system, of the disproportionate rates of admission and detention of people from black and minority-ethnic communities in our mental health settings. We know from the 2005 mental health and ethnicity census of in-patients in mental health care—the first ever undertaken by the MHAC and the Healthcare Commission—that black and minority-ethnic patients are more likely to be admitted to mental hospitals than their white counterparts. For example, black African and black Caribbean people are between three and five times more likely to be admitted and 30 to 40 per cent more likely to be detained. People in the young black British group of the census, who are likely to be third-generation young black men, are 18 times more likely to be admitted. It is worrying that these trends echo the report I mentioned earlier in respect of children on adult wards, where the commission found that over a quarter—about 27 per cent—of young people detained on adult wards were from black and minority-ethnic groups.

I am deeply concerned that many young third and fourth-generation black people are more likely than first-generation migrants to have high admission rates. This is counterintuitive. We would expect rates to drop as families and communities became assimilated and integrated, but that is not happening. I am equally worried that we will see higher levels of second and third-generation Muslim young men, in particular, coming into the system. We do not understand all the reasons for this, but we know that these disproportionate rates occur in the context of the present Act. With the Bill, we have the opportunity to make sure that the operation of the Act is equitable in relation to need and to ensure that it is in line with the positive duties enshrined in the Race Relations (Amendment) Act 2000.

There are two issues about the needs of black and minority-ethnic patients that I need to mention briefly. First, despite the fact that it has been a mandatory requirement to collect and record ethnic monitoring data for all in-patients since 1995—11 years now—the overall state of collection, recording and use of data is disgraceful. The census that we conducted managed a collection rate of 98.9 per cent for ethnic monitoring data through providing training, advice and support to service providers, so we know it can be done. From the MHAC’s regular visiting, we know that the collection, recording and use of data are regrettably not sustained on a day-to-day basis at ward level. Therefore we cannot hope to monitor trends, which raises questions about how care can be adequately provided and how services can effectively plan and develop new service responses.

Secondly, the race equality impact assessment undertaken by a committee that I chaired this summer made a number of recommendations, one of which—I am pleased to say it has been adopted—will allow ethnicity data collection on patients as part of the Bournewood safeguards. However, it is essential that the further actions described in the race equality impact assessment are also implemented; for example, recognising that it is essential to have culturally appropriate treatment and that there must be adequate monitoring of the community treatment order. I am greatly concerned that without that protection, we cannot be sure what will happen. Let me briefly give the House two potential scenarios.

One possibility is that because a disproportionate number of black people are admitted under all sections of the Act, more black people will be discharged on supervised community treatment, with the possibility that the black community will be stigmatised further. An alternative hypothesis is that clinical staff will become very risk averse, and the exact opposite will occur: white patients will be discharged on CTOs, but black patients will stay even longer in hospital, leading to a concentration effect. In either scenario, there is a real danger that the new approved mental health practitioners will become social policemen with all the attendant and obvious problems of tension between patients and professionals. These potential problems need careful monitoring and, to do that, good quality data will need to be collected, recorded and analysed.

In summary, we must strengthen the protections for all those subject to compulsion, including de facto detained patients as well as those correctly detained under the Act, and we must provide enhanced protections for children and older people who are admitted to or detained in mental health facilities.

At the beginning of my speech, I said that I would propose three solutions, and I shall do so briefly. First, enhancing the protection of the rights of service users, especially children and older people, demands that we know where patients are, how many they are, their ethnicity and their specific health needs. In Committee, I will table amendments to give statutory effect to notification of all formal admissions to the Mental Health Act Commission, with a particular emphasis on children under 18 and older patients, and with sufficient resources to monitor their care; and notification of all deaths of patients in mental health and psychiatric facilities, whether detained or not. Noble Lords may be surprised to learn that each year approximately 380 detained patients die in care, and about a quarter of the deaths are termed “unnatural”; that is, they are suicides, occur in suspicious circumstances and so on.

Secondly, I wish to see an adequate and robust system in place to ensure that monitoring of the operation of the Act is fully supported with appropriate information collection. I will table an amendment to ensure that we strengthen the existing monitoring requirements so that all services assess, record and retain for analysis and action data on the ethnicity, age, first language and religion of patients. Ethnic recording remains unacceptably low, despite a mandatory requirement on providers for the past 11 years, and it will be essential for the proper implementation of the Bill that services are required statutorily to record ethnicity, age, language and religion and to report them to the Mental Health Act Commission. I need not remind the House that we are witnessing a growing tide of religious bigotry and discrimination, often directed against Muslim and Jewish members of our communities. Knowing the religion of patients will enable us to monitor and address any discrimination within mental health services on that basis.

Lastly, I wish to see safeguards that will ensure that the proposed arrangements for community treatment orders are adequately underpinned by the care programme approach. At present, CPA does not have statutory force and, as a consequence, it is inconsistently used and too often used very badly. If we have to have a community treatment order, patients must have a robust care plan to go with it, and the Bill offers the opportunity to make CPA a statutory requirement for the community treatment order and thus extend it to all patients being discharged. An alternative approach would be to focus on the care plan instead of a community treatment order, which would give the patient statutory rights to the services covered by the care plan. I will also table an amendment to provide for improved independent monitoring of the proposed Section 17 community treatment order.

I believe action across these three areas will greatly improve the Bill and will go some way towards providing the protections that are essential for any modern mental health legislation in a decent and humane society.

5.59 pm

Baroness Howarth of Breckland: My Lords, it is somewhat intimidating to follow the noble Lord, Lord Patel of Bradford, because he has great expertise. It is also particularly intimidating to speak at this position in the list because many of the points have been made. I shall try not to repeat them, although, as I know the Minister’s attention is not always long—that was not what I meant, but it woke us all up—I want to begin by congratulating the Government on the present mental health services. I have worked in mental health for nearly four decades, and the change that was described earlier by the noble Baroness, Lady Bottomley, has been outstanding. I worked in large institutions containing elderly people who should have been out in the community, young women who were incarcerated because they had had an illegitimate child and many people who seemed rather more normal than those in community, but we have moved on to a quite different place.

It is clear from sitting on Committee G of the EU Scrutiny Committee considering the Green Paper on the EU mental health strategy that we are leaders in Europe. I am sure that there many other nations from which we can learn, but we have much to share with the rest of Europe. But we can do better.

Like many previous speakers, I have some disappointment with the Bill. It is a curious mixture and arouses strong and deviant feelings. I think that the noble Baroness, Lady Gibson, is optimistic that we will all agree at the end of the day. Like others, I welcome the Bournewood provisions, but also, like my colleagues, would like to see that the principles of implementation are in the Bill and that there is greater clarification, including exactly how Schedule 6 will work in practice. Having been the deputy chair of the National Care Standards Commission, I have real anxieties about that implementation and who can make the application.

However, I intend to spend my few minutes concentrating on a major gap in the Bill—the mental health service for children and young people—and then to raise some questions about definition and role. The only references I can find to child patients are those in new Sections 64E and 64F. I am unclear if these sections remove the confusion about whether parental consent can be used to admit 17 and 18 year-olds for treatment against their will. The provision clarifying this in the previous draft Bill appears to be omitted in this one Bill.

On a more general note, it seems a lost opportunity not to address those issues of child and adolescent mental health that touch on containment and are at odds with the Children Acts and the frameworks for children. The Minister knows only too well that children are not the same as adults. They have different levels of development and dependency and they process and react to problems differently. Those aged under 18 need expert, age-appropriate provision, not—as is happening in significant numbers—to be treated on adult wards.

YoungMinds, a charity which I admire and commend, is dedicated to promoting and improving the mental health of all children and young people. It would like to see an assessment of therapeutic benefit and safety of young people if they are admitted to an adult ward. The Minister will no doubt quote Ivan Lewis, who has made the welcome request to the health service to prevent children being held on adult wards as an “unprecedented priority”. But where is the response and the implementation? What are the Government doing to enable that to happen when they do not, as we have already heard, have verified central statistics on the numbers? YoungMinds knows of young people who have witnessed and experienced verbal and sexual violence on adult wards, and been denied access to education. Drug abuse is a major problem. Wards have 30 to 40 patients and are often overcrowded. There is a reliance on sedation and drug treatment, rather than talking therapies. The welcome growth of crisis and other teams which can keep people in the community, means that the severity of illness of people on wards is likely to increase. These are not places in which to treat our young.

If resources can be found for the supervision of adults in the community—a response to the media highlighting a few cases, although something I welcome—why cannot they be found for those with less voice; our children and young people? Will the Government consider legislation similar to the Mental Health (Care and Treatment) (Scotland) Act, in Section 23 which says that there should be provided,

“services and accommodation as are sufficient for the … child or young person”?

There was, after all, a recommendation by the 2005 Joint Committee on the draft Mental Health Bill that:

“There should be a duty on health authorities to provide age-appropriate accommodation for under-18s subject to the Bill or needing in-patient treatment”.

Why has that provision been lost?

We have already heard of children who live in households with adults suffering from mental health problems. Some of these adults may well be on the new community supervision orders. My concern here is about the focus and training of these officers, who will be there primarily, as I understand it, for the supervisee. Can we be assured that they will not lose sight of the family as a whole and, in particular, understand issues around child development and child protection? Like the Minister, my background stretches back to the days before the Seebohm reorganisation. Since then we have come full circle. The lessons learnt must make for a better holistic family service than we have achieved thus far. As has been mentioned, Barnardo’s has drawn our attention to the many children who care for a parent with a mental disorder. Will the new workers be able to give some help to those children?

I now turn to Clause 3 dealing with the clarification of definitions of mental disorder. As the deputy chair of the Lucy Faithfull Foundation, an organisation that has led the way in understanding the treatment of child abusers—not all of whom would be described as paedophiles—it is helpful to see those whose distorted mental processes enable them to sexually abuse our young brought into the scope of the 1983 Act. Like many parts of the Bill, this takes us into the overlap between the role of the Home Office in dealing with offenders and that of the Department of Health in treating those with a mental illness or disorder.

The foundation’s residential clinic was closed in 2002, although we have continued our work in the community with the support of government. The re-opening of the clinic has been hampered by a curious ruling that we can no longer lock in the men we treat in the institution, although we did so for many years—and very successfully. Through this Bill, we might find a way for the foundation to continue its important and renowned work of treating offenders and so protect our children.

As we move through Committee, I am sure that we will begin to tease out the balance of compulsion and rights, so well outlined by the noble Baroness, Lady Carnegy of Lour, at the beginning of the debate. During those discussions, I hope that we will also understand the relationship between those who deliver care and treatment and cut through the silos that divide departments. The Bill seeks this continuity of care. After all, how many mentally ill people are in prison with little or no treatment? How many, simply by categorisation, do not receive the appropriate help? We have heard that this is particularly true of those from black racial backgrounds, but it is also true of adolescents. In my day, we had a great debate on the deprived and the depraved—whether you were deprived and therefore in trouble or really wicked and therefore in trouble. I suggest that there is not that demarcation and that somewhere in that spectrum, particularly with young people, there is a great need to look at how we incarcerate them and the kind of help we give to them.

There are more developments in cognitive behavioural therapies for people with so-called personality disorders. I therefore contend that the divisions between containment and treatment are not so easily defined. The new community order will surely help to bridge that spectrum. But, no doubt, we will spend a great deal of time looking at these concepts. I only hope the issues around children and mental health services will have as much attention as those about containment.

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6.08 pm

Baroness Jones of Whitchurch: My Lords, I intend to be relatively brief. I start by saying that I am hugely respectful of the professional staff and voluntary organisations that deliver so much in mental health field I have carefully read all the briefings I have been sent, and, while there is much talk about this being a controversial Bill, I feel that there is much more that unites us than divides us.

I approach this debate as someone who has worked for UNISON for many years—alongside members delivering a wide range of mental health services—and, incidentally, I am pleased that UNISON is supporting the Bill today. I also approach the issue as a housing campaigner, who has seen first hand the increased prevalence of mental health issues among the homeless, which some estimate to be as high as 60 per cent, and the frequent lack of suitable treatment which leads to rapid mental, and associated physical, deterioration on the streets.

We all recognise that the best mental health solution for most people most of the time is a package of effective care in the community. We also know that, regrettably, the reality for all too many individuals in the community is that they feel lonely, isolated and scared. That isolation impacts not just on the individuals concerned but on their friends and family, who can find themselves substituting for inadequate care packages. For people on the streets with no family support network and no adequate care package, their mental health issues can put additional pressures on housing and social services and exacerbate the problem.

Despite the Government’s investment and commitment, we are still facing enormous challenges. That was clearly illustrated by the previous extensive debate in which we struggled to find a way forward that balances the complex rights and needs of individuals with a workable Bill. The time for reflection has been fruitful and, this time, the Government have found the right solution.

Last Thursday, I had the privilege to be in the Chamber to hear the maiden speech of the most reverend Primate of the Archbishop of York. Although my nonconformist tendencies are well known, I was very impressed by his contribution. In particular, he talked about the importance of values and beliefs in delivering change. His concern was that the Government might have an over-reliance on the power of legislation and sanctions rather than partnership with institutions, groups and individuals in the community. That advice holds some important lessons with regard to the progress of the Bill.

We have here a simplified, streamlined Bill with new rights for individuals and new safeguards for communities. We should welcome it and move on to concentrate on the elements of mental health that require partnership, not legislation—in particular, the challenge of delivering resources for effective care packages in the community.

I welcome the concept of community treatment orders. We must acknowledge that there are some occasions when individuals’ mental health can go into freefall, when they are unable to make rational calls about their diagnoses or treatment. Community treatment orders can provide those individuals with a vital safety net. Equally, health professionals would feel more confident in choosing community care rather than secure hospitalisation if they could be guaranteed that their patient was not being discharged into a void. Community treatment orders can ease the burden of responsibility on family and friends, who, in the past have all too often been left alone to make difficult decisions about their loved ones.

I also welcome the new rights for patients to nominate an appropriate individual to assist with their care and very much hope that the expansion of the skills base of mental health practitioners will facilitate more targeted and effective care and increase the total staff resource in the community.

I said at the outset that there is more that unites us than divides us. I hope that during the coming weeks, we can continue dialogue with the professional and voluntary organisations to find a consensus. I hope that any discussion will recognise the merits of a simplified Bill and that a great deal of what we all want to achieve can be delivered by partnership, not legislation. That should include using the opportunities in the draft code of practice to spell out the key elements of mental health services that we all feel would be appropriate for a modern age.

6.14 pm

Lord Adebowale: My Lords, I want to declare a number of interests before I make my brief comments about the Bill. I was part of the team that devised the Delivering Race Equality programme already mentioned by the noble Lord, Lord Patel of Bradford. It is worth mentioning the others who have worked hard to deliver that programme and are still working hard on the issues of mental health and black minority ethnic communities. They are Dr Kwame McKenzie, Professor Kam Bhui and Professor David Sallah, who is at this moment working hard on delivering race equality in mental health.

Along with the Minister, Rosie Winterton, I am the co-chair of the steering group charged with improving the experience of mental healthcare for black and minority ethnic communities as part of the Delivering Race Equality programme. I am also the chief executive of Turning Point, a social care organisation that works with more than 135,000 people in 250 locations, more than 6,000 of whom have mental health challenges but many of whom have mental health challenges, substance misuse challenges and learning disabilities. Our services span forensic mental health through to learning disabilities and substance misuse. Turning Point is also a member of the Mental Health Alliance already kindly mentioned by the noble Baroness, Lady Bottomley of Nettlestone, and is, I think it is fair to say, a leading member of the Making Decisions Alliance, which is relevant to the Bournewood gap already mentioned by the noble Lord, Lord Rix.

Due to time constraints and the wealth of experience already expressed by others in the Chamber, I shall focus my remarks on a few key points. First, I acknowledge the open style in which the noble Lord, Lord Warner, introduced the Bill when he invited the House to engage with the Government to make improvements. We all want a solution that promotes mental health and gets people the right help at the right time—and, with due regard to the remarks made by the noble Lord, Lord Bragg, protects the public. I will be the first through the open door to assist the Government in making the Bill better.

I want to refer to several issues: context, service improvement, dual diagnosis, community treatment, the Bournewood gap and personality disorders. That may sound like a long list, but I promise that I shall be quick. As it stands, the perception is that the Bill will not in and of itself improve patient care and promote public safety. It is also the perception that the Government have kept some of the more controversial clauses but dropped some of the more important safeguards, such as advocacy.

I believe strongly that services should be improved before compulsory powers are increased. Compulsion should always be a last resort. In that, I agree very much with the remarks of the noble Lord, Lord Warner. This very afternoon, service users and carers from all over the country will no doubt have made similar views known to many colleagues in another place.

The Bill is perceived as being about the law of compulsion and not about service delivery. However, it cannot be divorced from the wider context. The fact is that if people can get the right support when they need it, more people will use services voluntarily and compulsory powers will be needed less frequently. The overwhelming evidence is that if people voluntarily seek help, they are more engaged with services and are more likely to get better. Therefore, society is safer.

Mental health law should be updated, but services should be improved as an essential first step before increasing compulsory powers. It would be irresponsible for this House simply to rubber stamp the use of further compulsion with no absolute guarantees that that will go hand-in-hand with the essential service improvements.

There is evidence that services have improved. There is less discrimination in the use of compulsion in some BME communities. We want a reduction in the widespread cuts in mental health services that have been applied to tackle the great NHS deficits. Universal access to voluntary community treatment, especially preventive and crisis intervention services, will be further evidence of improvement. We want fewer inquiries that cite critical structural failure and lack of resources as key factors leading to homicides or serious incidents, such as the Barrett inquiry, which said that the remedy for what went wrong in that case lies not just in new laws. That would all be evidence that services have improved.

Services need to be improved in the following ways. There needs to be a focus on funding prevention; more support on discharge patients and ongoing care; advocacy to help people to express their views on their treatment, as the noble Baroness, Lady Morgan, has already said; and improved inter-agency working through the care programme approach already mentioned by my noble friend Lord Patel of Bradford. The Government should consider giving the CPA framework statutory force, so that services have a legal obligation to follow it and to provide the treatment and support outlined in the care plan.

My organisation Turning Point has focused on dual diagnosis in cases where someone has both a substance misuse problem and a mental health challenge. We agree with the Government that people should not be subject to compulsion on the basis of drug or alcohol dependence alone. However, I am concerned that, under the new Bill, people with a dual diagnosis who need help under the Act might still be turned away. It should be clear not only in the code of practice but in the Bill that drug or alcohol dependency should not exclude people from treatment if they also have another type of mental disorder.

As has been mentioned, the Bill proposes supervised community treatment in the form of community treatment orders. These can be acceptable only if community treatment is for a very tightly defined group of people—we have already referred to revolving-door patients—and is accompanied by stronger safeguards such as time limits, with the close monitoring of the powers that clinicians will have over patients’ freedom; the condition that they live in a certain place or abstain from particular conduct; and sufficient resources for appropriate—and culturally appropriate—treatment to be available.

Discrimination also needs to be acknowledged and addressed in practice. The Government have acknowledged that there is widespread discrimination in mental health services, and all the evidence is that this is likely to be mirrored under supervised community treatment. Furthermore, under community treatment, more people will be subject to compulsory powers as they will not be dependent on the need for admission. This will mean that more people from black and minority ethnic communities will face discrimination.

We welcome the proposals to deal with the Bournewood gap, although it has taken eight years to get to this stage. However, we want changes that simply make that gap fairer. As the noble Lord, Lord Rix, has already mentioned, a simple change would be to change the automatic review period to six months, not a year, and to ensure that the right safeguards are in place to protect people who lack the capacity to give informed consent to treatment. In particular, there must be safeguards for people where depriving them of their liberty is not authorised. Will the Minister agree to meet representatives of the Making Decisions Alliance to discuss the proposals on the Bournewood gap in more detail?

My organisation works very closely with significant numbers of people with personality disorders, some of whom have an official diagnosis and some of whom who do not. Of these, most are in mental health services, but some substance misuse services, particularly the open-access services, are reporting an increasing number of them. We acknowledge that there have been problems with the treatability test: namely, that it is often misunderstood, is inconsistently applied, and has contributed to a culture where some patients requiring compulsory treatment are labelled as untreatable and are therefore denied access to the services that they need. This perception also affects people seeking help voluntarily. It also identifies the problem of focusing on certain disorders, and therefore on certain individuals, leading to some people being singled out.

Although I agree with the Government’s analysis of this problem, the new proposals may still fail to meet the personality disorder challenge. There is real concern that, whether the treatability test or the appropriate treatment test is used, people will not get access to treatment because there is little consensus on what treatments are appropriate. Services for people with personality disorders are still poor, and staff are not necessarily trained properly to work with people with a personality disorder.

The Government are at last addressing some of the glaring inequalities, which have already been mentioned, that some people from black and minority ethnic communities experience when using mental health services. The work of the Delivering Race Equality programme is hugely important. The first Count Me In surveys have already highlighted shocking inequalities, the delivery of focused implementation sites has started to spread good practice, and there are pilot community engagement projects and a coalition of stakeholders to support the better delivery of mental health services to black and minority ethnic groups. The Bill should act to support this work and not militate against it.

The sufficient cultural training of approved mental health professionals and responsible clinicians is also critical, and principles are needed in the Bill to ensure that it is implemented in the way in which it is intended to be. This is particularly relevant to black and minority ethnic communities.

In conclusion, the Bill needs substantial amendment. As it stands, it will not improve patient care or necessarily promote public safety. Services should be improved before compulsory powers are increased, and compulsion should be used as a last resort. The Bill is the start of the process, and I compliment the Government on at least acknowledging that this process is needed. We are, however, a long way from producing a Bill that will satisfy the needs of many of the people protesting in the other place this evening.

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6.26 pm

Baroness Meacher: My Lords, I welcome the opportunity to debate a new Mental Health Bill purporting to rectify the gross inequalities and disadvantages experienced by people with dementia or learning difficulties identified by the Bournewood case, and which the Mental Health Act Commission discussed more than 20 years ago. That tells you something about how long it takes to go from having an idea to having something done about it. But the Bournewood gap is not the only area where reform is needed. The Government are right to tackle some of the issues that have arisen where the 1983 Act has become inconsistent with modern practice. For example, Section 26 of the Act, which defines the nearest relative, takes no account of the increasingly normal practice of involving service users in the decisions that affect their care.

A new legislative framework with proper safeguards for compulsory treatment in the community for a small number of revolving-door patients is justified. I will explain why in due course. Furthermore, there is an urgent need to deal with the unsustainable position of foundation trusts that cannot delegate the functions of Mental Health Act managers from non-executive directors. That is a small technical point, but one that is causing absolute havoc around the country. Having said that, many of the proposals in the Bill are seriously flawed and need amendment. I have several main concerns. The first is the absence of a statement of principles, which noble Lords have already mentioned. These are important to guide professionals in exercising their powers under the legislation.

The Royal College of Psychiatrists rightly points out that patients’ choice and participation in their own care are central tenets in the new NHS. In a crisis, however, patients may not have the capacity to exercise their autonomy. Advance statements, setting out both what a patient wishes to occur and what treatment they would refuse in the event of being detained and lacking capacity, are gaining currency as useful and empowering tools for service users. In my humble opinion, the Bill needs to make provision for those statements.

One caveat to the principle of the autonomy of the patient which I believe we neglected when the 1983 Act was being developed and debated—I was heavily involved at that time—is the need to take account of the needs and human rights of carers; for example, the right to family life under Article 8 of the convention. Having worked over the years with families caring for a family member with a severe mental health problem, and having spent five years as a Mental Health Act commissioner, I am aware that some families’ lives have been severely disrupted—I suppose one has to say that that can be an understatement—or they have lived, and still live, in fear of their loved one, who refuses to take medication. The legislation will need to find the right balance between the autonomy of the patient and the reasonable rights of carers. I do not believe this has been achieved in the Bill.

The second core principle is that of seeking the least restrictive alternative, and again the needs of carers, as well as of patients, must be taken into account in the legislation when putting forward this principle.

Like other noble Lords, I, too, am concerned about the criteria for detention. The proposed introduction of the appropriate treatment test and the abolition of the requirement that the treatment is likely to alleviate or prevent a deterioration in the patient’s condition opens the way for detaining people for whom there will be no therapeutic benefit—a form of preventive imprisonment. My main objection is that to override a person’s autonomy and impose detention and treatment on health grounds, which may have no therapeutic benefit, is unethical and therefore has no place in a mental health law of this country.

We also need to consider the implications of such a system for the reputation of psychiatrists—who may become the jailers—the stigma attached to mental illness and the welfare of people with mental health problems in general. I share the concerns of the Joint Scrutiny Committee and the Mental Health Alliance about these issues. The Bill would add to the number of patients under compulsion and would thereby take resources away from voluntary patients and those services designed to reduce the need for compulsion, such as early intervention, assertive outreach and other recent developments.

If community treatment orders are introduced as they stand in the Bill, they could have profound and very serious consequences for service users, professionals and the reputation of mental health services as a whole. I agree with the Royal College of Psychiatrists, the BMA and many others that there may be a small number of revolving-door patients who would benefit from CTOs. This proposition would assume several admissions before a CTO could be applied. As the Bill is drafted, almost every person who would now be discharged from detention under a treatment section, even on a first admission to hospital, could become subject to a CTO and thus required to comply with a regime of medication on an indefinite basis. Once on a CTO it is difficult to envisage conditions when a patient might be discharged from that order. This is a potentially tyrannical regime.

In this context we need to bear in mind that the side effects of anti-psychotic medication for some patients are less tolerable than the symptoms of their illness, and those symptoms are horrendous in many cases. To impose such treatment for longer than absolutely necessary for such patients should be possible only in extreme cases. The consequences of such CTOs would be exacerbated by the current blame culture. Every tragedy involving the death of or caused by a mental health service user tends to lead to recriminations and criticisms of psychiatrists. We are in danger of creating a mental health system dictated by our tabloid press.

The result of the CTO criteria as presented could be the wholesale application of CTOs because of the fear of professionals. Tight criteria are essential to protect patients and professionals. Excessive use of CTOs would undermine the efforts of doctors, nurses and social workers to establish a trusting and therapeutic relationship with service users, which is difficult enough following a period of detention in hospital with the loss of liberty and controls by professionals that this inevitably entails. Particularly serious could be the disincentive for patients to seek early help. At risk would be the work of early intervention teams, which are one of the great innovations of the Government in recent years. These teams were designed to prevent the development of revolving-door patients lurching from crisis to crisis throughout their adult lives. The envisaged CTOs could seriously undermine this work by increasing the fear and stigma associated with secondary mental health services. Families would do anything to delay the time when their young, increasingly ill son or daughter became embroiled with those stigmatised and frightening services.

In this context, it is worth noting the Australian experience where CTOs were embraced in a major way and coincided with a serious failure of community care. The Scottish CTO system, which was discussed in a recent King’s Fund report, risks jeopardising its community care provision. In the Scottish case, the burden of increased bureaucracy and workloads on mental health staff is creating fears,

“that mental health CTOs may result in fewer services being available for other people with mental health needs”.

Clause 25 sets out the five conditions to which a patient under a CTO would be subject while the order remains in force. This is a slightly smaller point, but it is nevertheless important. I support the view expressed by the Joint Committee that the conditions should be limited to requirements or limitations on a person’s place of residence and their medication. In particular, the condition,

“that the patient abstain from particular conduct”,

is out of place in mental health legislation. It seems to have been brought across from the ASBO.

The Bill introduces anomalies concerning professional roles which cannot be justified. The Royal College of Psychiatrists points out that under the new Bill, as in the 1983 Act, only registered medical practitioners are deemed to have the necessary training to make the initial recommendation that a patient meets the relevant conditions for compulsion. Quite rightly, the initial detention for treatment is made only with the recommendations of two registered medical practitioners and an approved mental health practitioner, which is a proper multi-disciplinary assessment. How then can it be suggested that one responsible clinician, who may not be medically trained and thus have many years of psychiatry training behind them, is able to ensure that the relevant conditions are still satisfied when the patient’s section is to be renewed? Is that consistent?

It is surely even less appropriate to propose that a responsible clinician, who may not be a doctor, may discharge a detained patient from hospital on to a community treatment order. In view of the seriousness of such a step for the service user, which is potentially more serious than the original detention order, the reputation of mental health services and the likely impact on the quality of therapeutic relationships in the community, the decision should surely be made by a psychiatrist probably requiring a second medical opinion and, very importantly, involving the full multi-disciplinary team. A further inconsistency concerns the decision to recall the patient to hospital. The Bill envisages this decision being made by the responsible clinician—again, not necessarily a doctor—and an approved mental health professional. A similar process is proposed for the revocation of the CTO.

The new Bill fails to follow the recommendation of the Joint Committee with respect to electro-convulsive therapy. It provides for a responsible clinician who may not be a doctor potentially to prescribe ECT. The Government may have in mind to deal with this matter in regulations, but the Bill would appear to be a more appropriate place for such provisions. Thus, the Bill presents three different proposals for the professionals or sets of professionals required to make key detention and treatment decisions. I ask the Government to consider the consistency or acceptable nature of those proposals.

Finally, many noble Lords have spoken about the Bournewood gap, so I shall be brief. Most Bournewood gap patients require high levels of care and supervision. Many, but for their compliance with the proposals for their care, albeit often non-capacitous compliance, would be detained under the Mental Health Act. I share the concerns of the Mental Health Alliance that the safeguards set out in the Mental Health Bill are less strong and less effective than those under the Mental Health Act. In particular, under Section 58, there is a statutory second medical opinion procedure for medication beyond three months and for ECT. The Bournewood patients do not have that protection in the Mental Health Bill. They surely should. Statutory second medical opinions should also be required for treatment of these vulnerable patients for physical conditions. I cannot leave this subject without paying tribute to the powerful speech made by the noble Baroness, Lady Knight, with whom I do not always agree. She made a truly wonderful speech about the shocking starvation of elderly patients. Certainly, we have to find a way of protecting those patients.

In summary, the Bill needs to be amended. However, in my view this is not a party political issue. In 1983 the political parties worked together to achieve a high quality piece of legislation, as it was for its time. The issues here are matters of ethics, justice and legislative support for a modern, community-focused and patient-centred mental health service. I hope we can once again work on a cross-party basis to formulate amendments that will find the right balance between the needs of patients or service users, carers and the community.

6.40 pm

Baroness Pitkeathley: My Lords, I thank the Minister for the style and substance of his remarks and welcome his offer of working together to improve the Bill as it proceeds through this House, because I think that we are going to need to. I want to declare two interests. First, last year I was a member of the scrutiny committee on the original Bill so ably chaired by the noble Lord, Lord Carlile, who I know regrets very much being unable to be with us today. Secondly, for many years my main concern about mental health issues was from the point of view of family carers. It is widely accepted that of all carers, these families often have the hardest time for reasons that are well documented and have been mentioned by other noble Lords.

We must acknowledge that changing the law on mental health is an extraordinarily difficult task. The amount of time it has taken successive Parliaments and countless Ministers to get to this stage, the number of Bills suggested, drafted and then abandoned, is surely proof of that. The Government are to be congratulated on being willing to venture into these dangerous waters. But before we change the law we have to be absolutely sure that the change will bring benefits and leave us in a better situation than before. But there is the rub, because when I talk about “us”, to whom am I referring? A mental health law must satisfy many people and cover many areas: professional workers, including doctors and nurses; carers and families; and, above all, the needs of patients themselves.

According to public reactions—and your Lordships will have received as many briefings as I have—the Bill as it stands satisfies no one except for perhaps a small proportion of the public who believe that anyone with a mental illness is a danger to others and must be detained or forcibly treated. It is true that a few people fall into that category, but the number is tiny compared with the vast numbers who live in misery, often committing suicide, and who bring similar misery to their families. Many would argue that in order to improve our mental health service we do not need legislation at all, but only an improvement in the services provided. Too many people with mental health problems are in prison, in poor housing, living on inadequate benefits and in a cycle of deprivation which seems never-ending. Legislation is not the way to deal with these problems; co-ordinated and more extensive services are the way.

A criticism which has been levelled at the Bill, I am bound to say with some justification, is that it concentrates on containing and controlling the few, not on treating the many. As the Bill progresses through Parliament, I hope that Ministers will be able to give further assurances that it is one strand, but one strand only, of a policy programme which might at last see mental health services be less the Cinderella than they have been hitherto. However, like other noble Lords, I acknowledge the Government’s great record on mental health services, not only in extra resources but in the extra interest they have shown. Here I should like also to commend the amazing work carried out over many years by the many campaigning organisations that represent the interests of those with mental illness and their families. We must remember too that many of the most effective ways of dealing with mental illness do not cost a lot of money. The work of my noble friend Lord Layard, for example, which has been mentioned before, shows that the provision of cognitive behavioural therapy at an early stage is not only cheap but also extremely effective in preventing the need for further expense later on.

I welcome the withdrawal of the treatability test in the draft Bill which is to be replaced by a test that appropriate treatment is available, and the definition of treatment is broad, including therapies, counselling and rehabilitation. But the downside is that it may open the door to far too much compulsion, raising concerns in patient/user/carer groups about inappropriate detention and compulsion. So here again we see the problem with mental health legislation: what is welcome for one reason is unwelcome for another.

Nowhere is this more apparent than in the area of community treatment orders. Anyone who has ever listened to accounts of the nightmare experiences of carers of those with a mental health problem, what they go through because of the so-called “revolving door” syndrome, will welcome this provision. Carers see their loved ones—and here I should say as an aside that they usually are loved ones in spite of the fact that families are often seen as the cause of the problem or even as the enemy by mental health professionals—treated in hospital compulsorily. They take their medication, get better and are discharged into the community, often into the care of relatives—long-suffering relatives. Once out of hospital, they cannot be compelled to take their medication and so in spite of the efforts of their families or their professional carers, they stop taking it and the downward spiral begins again until they are bad enough to be admitted and compulsorily medicated. But distressing as these cases are, we should remember that they are comparatively few in number. It is for that reason that the scrutiny committee recommended that CTOs be explicitly limited to a clearly defined and clinically identifiable group of patients. There is great anxiety about possible infringements of patients’ rights, and I always want us to be alive to infringements of carers’ rights too.

All too often carers are denied any access to information about the condition of the patient or of the likely prognosis, while at the same time being expected to provide care in the most stressful of circumstances. It is possible in most circumstances to deal with these apparently conflicting sets of rights, but it requires time, good negotiating skills and experience on the part of the mental health professionals who do this work. One or all of these are too often missing, and there is a danger here on which we seek reassurance: whether CTOs will be used as a sledgehammer to crack a nut and as a substitute for proper assessment which takes into account the needs of all the parties involved. A right to a full assessment of all health and social care needs is surely not too much to ask at the beginning of a person’s involvement with mental health services before treatment of any kind is prescribed.

Perhaps the biggest issue for carers is the fact that relatives, partners and friends do not get either an assessment when they need one or the support they need. The current system of assessments and requests for help coming from the patient does not help to get early support and intervention to people when they need it. The only alternative is to wait for the crisis when more intervention is necessary, which is costly not only for the state but for the individuals and those caring for them in personal as well as in financial terms. It is critical that people with mental illness have the right to an assessment at an early stage and that the referral systems are sensitive enough to respond to the presentation of an illness at an early stage.

I want to say another word about carers’ rights. The sections on supervised compulsory treatment raise new issues on carers’ rights, yet they do not provide a mechanism for balancing those rights. Under proposed new Section 17B(3), for example, one of the conditions is that the patient reside in a particular place. It is critical that there is some consultation and discussion about where that place is. For example, if it is with a carer, and particularly in the carer’s home, and the person with mental illness and the carer no longer want to live together, then the treatment order needs to be sufficiently flexible to allow that to happen rather than to trap individuals into situations that might involve breaches of the Human Rights Act as well as a great deal of distress.

I welcome the nearest relative provisions and that the powers they contain are being retained. These are important provisions and I welcome in particular the fact that they are being updated to ensure that civil partners have equal rights to those of husbands and wives to be treated as nearest relatives. But while the Department of Health has rightly accepted that the provisions need to be updated and amended, it may have missed an opportunity in this area. I know that over the years Carers UK has provided the department with many examples of where carers are excluded from decision-making because they are not at the top of the nearest relatives list. In former draft Bills, the department has suggested that carers should be second in the ranking after the nominated person, and many people still feel that this should be the case.

I am also concerned that the patient or carer will have to go through the county court system to displace a nearest relative. This could prove divisive and inaccessible for patients and carers alike.

The other issue that the Bill must ultimately deal with is to bring about a culture change where information from carers is valued, as is their involvement. It is unreasonable to expect a family to care for someone but not equip them with the information they need to do so and to ignore their views and concerns when this could have led to better or more appropriate treatment for the person for whom they care. The vast majority of carers act in the best interests of the person for whom they care, and we should never forget that.

Your Lordships will understand that I am, at best, ambivalent about the Bill. I cannot forget the overwhelming view of those who gave evidence to the scrutiny committee that the proposals set out in the 2004 Bill were unethical and unworkable. While the Government have made a brave attempt to rework the original proposals, I am a long way from being convinced that they have taken on board the conclusion of the scrutiny committee that,

“the primary purpose of mental health legislation must be to improve mental health services and safeguards for patients and to reduce the stigma of mental disorder”.

We all know that services for people with mental disorders are patchy and inadequate. Much of the need for compulsion, on which the Bill focuses, could be eliminated if a variety of adequate treatment was available at an early enough point to avoid deterioration and breakdown. As the Bill proceeds through your Lordships’ House and another place, I hope we shall concentrate on making enough changes to it so that we can be sure—or, at least, more sure than we are now—that it will bring this about.

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6.51 pm

Lord Ouseley: My Lords, it has been a long process in getting an amended Bill before the House to tackle the inadequacies of existing mental health legislation. I pay tribute to all those who have been involved in scrutiny, working with government to bring the Bill to a state which many Members who have spoken today have commended, in spite of the deficiencies they see in it.

I also pay tribute to all those who work daily serving others in providing mental health services, including voluntary organisations, campaigning organisations, carers and all those who dedicate themselves to this very difficult area of care provision for some of the most vulnerable people in our society.

I congratulate the Government on maintaining their priority of improving mental health services. It is a priority, and the intention is to achieve those improvements through the Bill. But will that happen? From what we have heard so far, unless substantial amendments are made to the Bill, that is unlikely to be the case.

I am most concerned about the prospects for those groups of patients who have to date experienced substantial adverse discriminatory treatment. The Mental Health Act 1983 has been disastrous in its application to some of our resident African and Caribbean-origin communities. The Bill fails to address the evidence of institutional racism—it does exist—and the practice of psychiatry in its detrimental effects on the black communities. As drafted, the Bill is likely to compromise and deny their right to the appropriate services when needed.

The irrefutable substantial body of evidence shows that black and ethnic minority communities are more often diagnosed as schizophrenic. They are more often compulsorily detained under the Mental Health Act; admitted as offender patients and held by the police under Section 136 of the Act; transferred to locked wards from open wards; not referred for psychotherapy; given high doses of medication; sent to psychiatrists by the courts; and they more often have unmet needs.

Compulsory powers continue to be arbitrarily invoked against African-Caribbean people, who mistrust and fear the services on offer. A 2004 report from the Office of the Deputy Prime Minister called Mental Health and Social Exclusion acknowledged that black people have higher levels of dissatisfaction with statutory mental health services and are twice as likely to disagree with their diagnosis. Such dissatisfaction has been around for three decades or more, and it is getting worse.

Knowing of such concerns and representations made by the African and Caribbean organisations and their advocates, it is very disappointing that the Government should bring forward the Bill in such a deficient manner, notwithstanding all the contributors who have sought to make it much more acceptable. It is deficient in a number of ways: it has failed to conduct a comprehensive race equality impact assessment; it has excluded black community organisations in meaningful discussions—for example, there were last-minute communications involving black church leaders who were previously excluded from consultations. It is deficient in its compliance with the race relations legislation as specified by the Commission for Racial Equality. It is deficient in tackling the realities of the disproportionate adverse effects on African-Caribbean communities through culturally insensitive and detrimental mental health practices.

These deficiencies are best exemplified by looking at the race equality impact assessment, with its lack of data and its speculative analyses that fail to qualify and determine what adverse potential impact may arise from these measures other than assertions such as “The Government are of the view that” and “The effect of such policies will be neutral” without the necessary back-up, analyses and data to substantiate such statements.

Black and minority ethnic stakeholders, including patients, are deeply concerned about community treatment orders and the likelihood of even more detention of black and minority ethnic people. Similar concerns are held about the competence of tribunals to operate with cultural sensitivity to achieve equality and fair outcomes for all. The composition of panels should reflect cultural and ethnic diversity, but we have little or no information about their composition. Race equality and diversity training should be a prerequisite for all tribunal members. It should not merely be tick-box training—it should be meaningful, with understanding of diverse needs paramount in the course content. That also applies to the proposal to widen the range of professionals who will be involved in the provision of mental health services.

Furthermore, the black and minority ethnic stakeholder groups hold the view that people detained with a mental health condition should have the basic right to independent advocacy to ensure that they are adequately represented and that their needs and rights are protected. I fully back what has been well expressed by the noble Baroness, Lady Morgan. It is also critical that the Bill provides the right to request an assessment, as is the case in Scotland, so that people with mental illness and carers can have their needs assessed and responded to before a crisis point arrives.

The Bill has the potential to be—to use the Home Secretary’s favourite phrase—“fit for purpose”, but only if the Government are prepared to consult, listen and be responsive to voices that have been ignored or marginalised to date and which can help contribute to it achieving meaningful, fair and appropriate outcomes for all, as intended. As we heard from my noble friends Lord Patel of Bradford and Lord Adebowale, their contribution in helping to shape the Bill and in bringing forward amendments offer optimism that the Bill can emerge from this House acceptable to all sides and to all providing mental health services and care for the most vulnerable people in our society.

6.58 pm

Baroness Corston: My Lords, the Bill has had a spectacularly long gestation; it has been on the horizon for nine years, which indicates the degree to which it is difficult to legislate in this area.

It is important for us to remember what the objectives of the Bill are. The first is to make the Mental Health Act 1983 compliant with the European Convention on Human Rights, which was incorporated into our law by virtue of the Human Rights Act 1998. The second is to deliver community-based treatment. The third is to address what I think of as the Cinderella of personality disorder, so as to provide at least some management of this condition. The Bill also provides for the protection of those who lack capacity and are compliant in treatment but who are not covered by mental health legislation. This is an increasingly necessary requirement given that one of the consequences of an ageing population is the growing incidence of dementia. Such people are in hospital or in care homes outside the ambit of the 1983 Act.

In considering human rights it is important to remember that there is no hierarchy of rights. One person’s rights do not take precedence over another’s. It is important to seek a balancing of rights. In this area in particular, that balancing exercise is very difficult because, at its most extreme, it seeks to balance the liberty of some against the security of others. This first came to my attention in the early stages of the 1992–97 Parliament as a then new Member of the other place. One of my colleagues on the Labour Benches raised with the then Prime Minister, John Major, the case of a promising young musician, Jonathan Zito, who was minding his own business on a station platform when he was stabbed to death by Christopher Clunis, who had a personality disorder and could not be detained. Jonathan Zito’s widow, Jayne Zito, set up a trust in his name to campaign on these issues. That has remained with me as being the most intractable of problems because such people did not fall under the Mental Health Act 1983 and did not get treatment. Replacing treatability as a concept with the new appropriate treatment test, as envisaged in the Bill, will at last give some attention and recognition to a considerable social and health problem.

This has been further reinforced for me because, in March of this year, I accepted an invitation from my noble friend Lady Scotland to conduct a review of vulnerable women in the criminal justice system. I have spent the intervening months visiting women’s prisons and talking to all manner of people who have an interest in or responsibility for their care. It is extraordinarily shocking how many women in our prisons are there because of personality disorder. Such women are assessed and the people caring for them are told, “This person is not treatable”, so prison staff—who have no training at all in such conditions—have to try to cope. The levels of self-harm and self-inflicted death among those women are truly shocking. While we may talk about revolving-door patients, these are revolving-door prisoners. Prison staff will say, “She will be back soon”, because no one has a responsibility to give her any help.

Treatment does not necessarily mean drugs or a chemical cosh, to use a common expression. It can involve anger management, cognitive therapy, behaviour therapy, counselling, rehabilitation and independent-living skills.

During my review, I met a woman who is a magistrate on a Bench in the north-east of England whose daughter was diagnosed with a personality disorder. The woman believed that its roots were a combination of chronic alcoholism and the use of non-prescription drugs. She recounted to me in a moving way the difficulty she had had in getting anyone, anywhere, to take any notice of what was wrong with her daughter. She finally found a counselling service, which spent a considerable time with the young woman dealing with the addictions that her mother felt were at the root of her disinhibiting behaviour. Her daughter is now what her mother calls a normal young woman with a family.

I have always rejected the notion that such people are beyond any kind of treatment. They might be beyond the kind of conventional treatment that has been offered until now, but that does not mean to say that nothing can be done. This treatment has the potential to be of enormous benefit for people who lead chaotic lives and are consequently in and out of prison.

Other noble Lords have referred to the lobbying of another place on this Bill today. I have been talking to my right honourable friend Rosie Winterton, the Minister of State, about her experiences in that lobby and I was struck by the fact that a woman said to her, “Rosie, I have a personality disorder. I would love treatment but I cannot get it”. I welcome the fact that that will be possible under the Bill.

As to community-based treatment, the provisions in the Bill are also designed to cater for those people who are called revolving-door patients by mental health professionals. They are detained; on discharge they feel no more need for prescribed medication; they lose touch with the professionals; they can become homeless—and they end up being detained. I support the principle of supervised community treatment, which is the norm in countries such as New Zealand and Canada.

It is important to emphasise the safeguards. Community-based treatment will not be suitable for everyone. It must be appropriate to the person’s needs, and clinicians must be confident that appropriate services are available.

I also welcome the provisions that give patients the right to appeal to the county court to discharge and replace the person statutorily designated as their nearest relative. This is because there may have been a breakdown in the relationship or the nearest relative could even have been a past abuser of the patient.

I am pleased to note that a draft code of practice has been issued with the Bill and that interested parties have been invited to make suggestions as to ways in which the code could be strengthened and improved.

One gap that I have identified in the Bill relates to the provision for children and young people, for whom mental illness is a growing phenomenon. No doubt these matters can be debated in Committee.

Finally, as a Second Reading debate is about principle rather than detail, I laud the principles behind the Bill and its attempt to balance public safety with private treatment and care.

7.07 pm

Baroness Murphy: My Lords, first I must declare my interests in the Bill. I am a Fellow of the Royal College of Psychiatrists and a supporter of the Mental Health Alliance which, as the noble Baroness, Lady Bottomley, remarked, is a quite extraordinary united front of nearly 80 mental health service user groups, professional organisations and campaigning charities established specifically to press for better legislation for the care of the mentally ill. We are at one in saying that this is a stigmatising, illiberal and yet curiously timid Bill. It is a little like a dying wasp which still has a sting in it.

I was a co-author of the 1983 Act code of practice and for seven years vice-chairman of the Mental Health Act Commission. As a community psychiatrist I have sectioned dozens of people, so I know only too well the failings of the 1983 Act and the inadequacies of these proposed amendments. I have heard it said repeatedly—I think the Minister said it again today—that this Bill is about a small number, 15,000 or so, of people detained at any one time in hospitals. But there were nearly 47,000 uses of compulsory powers last year, which is no small number. In fact, it is more than the annual number of hip replacements in England Wales, which puts it in perspective. We are talking about a large number of uses of compulsory powers.

Every person experiencing the terror and distress of mental disorder knows about these powers, the repressive culture that lies behind them and the stigmatising attitude towards those who most need our help and support. I can scarcely believe that a Government who brought forward the excellent and brave Mental Capacity Act has stuck us with a second-rate piece of work. It leaves in the wider definition of those who will be subject to compulsion.

I think sometimes that if I had my pink forms with me, I could make some recommendations in the House. As I see noble Lords nodding off, their lowered consciousness might fit the bill for mental disorder within the meaning of this Bill—so watch it because I have just discovered that the noble Lord, Lord Patel, is an approved social worker.

The Bill adds community treatment orders without many safeguards, but then abandons the safeguards that were proposed in the draft Bill, such as automatic appeals and the right to advocacy. The Bournewood safeguards are an improvement on what we have at the moment, but nothing like the safeguards that would be available under the Mental Health Act to people with dementia and learning disabilities in care who are resisting treatment. That is simply prejudicial and stigmatising to them. Is this really the best we can do after eight years of trying?

There will be time in Committee to explore the detail of the Bill’s provisions, so today I shall focus on three matters: public safety; the continuing stigma of treating mentally ill people differently from people with other illnesses; and non-therapeutic detention.

By “public safety” I specifically refer to homicide by people with mental disorder. I agree with the Government that this is of serious and legitimate concern. While the numbers are small—as we have heard, they are tiny compared with the number of homicides associated with alcohol abuse and domestic strife—I will not deny their importance, not least because of the catastrophic impact of such homicides in creating a false public perception of what mental illness is.

The question is whether the proposals in the Bill are likely to have the desired effect, or quite the opposite. I have sat on three homicide inquiries and have read most of the other reports this past 15 years. My conclusions are similar to those of the Law Society and many others who have looked closely at the recommendations of those reports: the law is not the culprit. Time and again it is the poor co-ordination of services, the lack of follow-up, failure to listen to relatives and other statutory services, failure to use the existing legal provisions wisely and the lack of appropriate service resources and personnel. I remind the noble Baroness, Lady Corston, that the Christopher Clunis inquiry report said exactly that.

Professor Nigel Eastman, the forensic psychiatrist and lawyer from St George’s, University of London, pointed out to the scrutiny committee the marginal contribution that law makes to public protection. It is all about services, he said, and the way they work. As he explained, psychiatrists know that,

“It is not that you can predict if somebody is going to kill somebody; it is that you intervene for their mental health care, and one out of goodness knows how many would have gone on to kill, but you have intervened.”.

It has been estimated that you would have to lock up about 5,000 people in order to prevent one homicide, and I suggest we are never going to do that. It is pointless to prevent one homicide by repressive measures if the aggregate effect is to increase the risk of homicides and violence in the community in general. The majority of those needing help will still be failed when beds, crisis units, day centres, community and therapy services are inadequate to supervise these community treatment orders and to get people into the services they need. We need care and compassion, not more coercion.

The Bill will frighten away from services potentially violent patients, as others have said and as was said repeatedly to the scrutiny committee. Early intervention services, assertive outreach and crisis resolution teams were all designed in urban inner city services who knew they were not able to reach the young folks on the streets. Young people in Lambeth, Hackney and Haringey already have a notion that if you admit to your frightening experiences, you will be banged up in a terrifying psychiatric ward and filled up against your will with drugs that make you drool and get fat. Do we think that word on the streets about a supervised community treatment order that you can be put on at the drop of a hat, with no obvious way of getting off it, will encourage people to come to services? I do not think so.

This is likely to be ineffective law, because it will not deliver what the Government want. Safety lies in readily accessible and welcoming services, and I would include in that the right to ask for an assessment and get one from the family; professionals knowing what goes on in patients’ heads; and patients trusting professionals with information; and then getting the necessary supports in place. Yes, sometimes we need to use coercion and restraint, but we will know that services are improving when the number of sections goes down, not up.

My second point is about the failure to base mental health law on the same principles as medicine in general. Why is it that the Scots can produce an Act based on the principle of lack of decision-making capacity, as recommended by Professor Genevra Richardson’s report to the Government seven years ago, while we have here a Bill still based on the principle that if someone has mental symptoms, even when they are capable of making fully autonomous decisions, they may become subject to compulsion? If we had a capacity-based Act, it would probably not lead to a very different group of people being sectioned, although I believe it would protect some at the margins who are now the subject of what I call the overenthusiastic psychiatrist. It would, however, have a dramatic effect on the confidence of mentally ill service users to know that their care and treatment would be subject to the same principles as someone with a physical health problem. “Capacity” does not refer to intellectual cognitive capacity only; it means the ability to make decisions uninfluenced by abnormal thoughts and emotions too. A capacity-based Act would stop dead the endless arguments about the types of mental disorder that ought or ought not to be subject to the Act.

My third point is about ensuring that, as Dr Zigmond from the Royal College of Psychiatrists said in his evidence to the scrutiny committee, mental health services do not become solely part of either the criminal justice system or an anti-social order system. They must be part of the health service. The new Bill apparently turns away from the notion in the former draft Bill of locking people up in mental hospitals even when they are untreatable, and of making doctors and nurses do the state’s business of keeping challenging people out of harm’s way even before they have committed a crime. That has been changed. Now a clause has been inserted to say that there must be appropriate treatment, but I and many others here will want to explore in Committee exactly what that means. It is by no means clear to me from the statements in the draft code of practice that the Government have accepted that clinical services are there to do clinical work, not to provide non-therapeutic detention.

This is so disappointing. We want a Mental Health Act that ensures all treatment provided under compulsion gives a health benefit to the patient; limits community treatment orders to a very small number of revolving-door people and does not impose unnecessary conditions on them; gives everyone sectioned under the Act an advocate and the right to choose who speaks up for them; and gives patients and carers the right to an assessment when they ask for it before the crisis point is reached. I do not think the Bill, as it stands, will do the job.

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7.17 pm

Baroness Barker: My Lords, I am the only speaker from these Benches today because my noble friends Lady Neuberger and Lord Alderdice could not be here for the duration of today’s debate, and my noble friend Lord Carlile of Berriew is not in the country today; he is away on government business. That is a shame because all three would have had things to say about this Bill, and the House would have greatly benefited from their experience. As the only speaker, I will succinctly say a number of different things about the Bill. I crave your Lordships’ indulgence if I go over time slightly.

Noble Lords who have been reading newspaper articles—for example, last week in the Times—could be forgiven for thinking the debate on this Bill is between those who place the importance of patient rights above concerns for victims of crime and a Government who, almost alone, have understood that the way to identify those very few people with mental illness who might present a danger to themselves and others at any time is to subject many thousands of people who present no danger to detention and restrictions without safeguards. Such an impression is understandable, but wrong.

Those who were severely critical of the 2004 draft Bill and of this Bill—and I am one—have always accepted the need to incorporate effective risk management and public protection into mental health policy and into any new mental health Act. However, we find ourselves in agreement with a wide range of knowledgeable organisations, from the Royal College of Psychiatrists to the Royal College of General Practitioners, that the extension of legislative power to subject people who are ill to compulsory treatment that may not have any therapeutic benefit for them, without rights to assessment and review, may not lead to greater public protection. Quite the reverse.

The Government chose to ignore the majority of the joint scrutiny committee’s proposals—a body which included a former Home Secretary, three current medical practitioners, several government Back-Benchers and an opposition spokes person, and achieved unanimity. The Government have removed from the Bill any mention of people with dangerous or severe personality disorder but have retained measures that might be appropriate to that very small percentage of people with serious mental health problems, and will apply them extensively. They have ignored the committee’s recommendation that there should be a separate Bill dealing with people who are dangerous and present a clear risk to themselves and others, which should contain a far higher standard of risk assessment before a person is subject to detention. The Government could have chosen to deal with the 50 per cent of prisoners who have serious mental health problems and who prison staff frequently tell us are in prison simply because there is a serious lack of secure to medium mental healthcare beds for them, but they have not done so.

Before turning to the detail of the Bill, I suggest that there are three overarching criteria upon which noble Lords should judge it. Would the enactment of these proposals add significantly to the effectiveness of current mental health practice as it is under the 1983 Act, both in therapeutic benefit for patients and increased public safety? Conversely, would it significantly harm the effectiveness of current practice under the 1983 Act? I ask noble Lords to judge the Bill that we have, not the Bill that we want. Many of today’s speeches were about the Bill that we want but do not have. It was interesting to note that noble Lords started their speeches saying that they were supportive of the Bill but went on to describe it variously as deeply depressing, deficient, fundamentally flawed, or in the words of the noble Baroness, Lady Pitkeathley, that well known critic of the Government, as a Bill that satisfies no one.

I ask noble Lords to consider three points. First, the view of my noble friend Lord Carlile, which he would have given today but will do so at later stages, that, given the definition of disorder in the Bill, the proposal for appropriate treatment is intellectually dishonest. What it amounts to is not appropriate medical treatment but only habitation defined by a medical practitioner. Most people who will be subjected to appropriate treatment by compulsion under the Bill would receive treatment voluntarily under existing legislation. However, the crucial difference is that the Bill is wholly unclear about how such a patient would cease to be subject to detention, which is not mental health treatment.

Secondly, on supervised community treatment orders, if these powers are to be used for a small minority of so-called revolving door patients, why is it possible to subject a person to a CTO indefinitely after only one episode of hospitalisation, which may have lasted for just 24 hours? The Government have not produced evidence from countries where CTOs are in operation on their effectiveness, or evidence from different countries on what does or does not work. The Government ignored the recommendations of the joint scrutiny committee on the level of safeguards such measures would need by not requiring the determination to impose a CTO to go before a mental health review tribunal. Nor is there any requirement on the responsible clinician to discuss the making of a CTO with a patient, or to explain the conditions to which the person will be subject, or the consequences of breaking them. A nearest relative, the person most likely to be involved in the life of a patient on an ongoing basis, and therefore often the person most at risk, has no power to object to the making of a CTO. The clinician or associated mental health professional who will be responsible for a person in the community need not be consulted about the conditions of the CTO. If a patient is recalled within one month of a CTO being made or three months of treatment being given, Section 58 treatment can be given without consent. The person thereby has fewer rights than a person detained in hospital, allowing mental health treatment to be given when it is neither necessary nor proportionate.

Thirdly, those who believe, as the Government say, that this will affect a small minority of people should look at the Bill’s regulatory impact assessment. The majority of the £22 million assigned for implementation will be spent on CTOs. I suggest that the majority of CTOs will involve the administration of chemical treatments in the community. Nothing in the Bill will stop rogue practitioners making that their preferred method of treatment and using it inappropriately.

The Bill is shot through with many serious flaws. It is difficult to know where to concentrate. I make two points which indicate the problem. Even the good bits of the Bill contain serious flaws. Noble Lords have spoken at length about the Bournewood provisions, which are inadequate as they rely on care home owners to trigger an assessment and give relatives no rights to request action. Noble Lords have said that there will be no aftercare for people subject to Bournewood. It is not clear in the Bill whether a person who is detained under Bournewood will have to pay for their detention. It seems that the Government may have the power to detain people and make them pay for their care. That is astonishing.

Noble Lords have spoken of the missed opportunities for young people’s, children’s and adolescents’ mental health services and of the disproportionate effect of mental health legislation on people from black and minority ethnic communities. I suggest that whatever deficiencies there are in current practice will be aggravated. The regulatory impact assessment accompanying the Bill refers to £22 million. If the tribunal safeguards were to be implemented, it would cost vastly more than that.

When parliamentarians discuss social and healthcare policy it is important that we bear in mind those people whom our comments will affect. I take the point made by the noble Baroness, Lady Pitkeathley, that the Bill will do nothing to help carers, who suffer greatly through lack of mental health services. Some 25 per cent of mental health users have reported asking for help but it not being available.

Frankly, the Minister’s opening speech could have been an introduction to an entirely different Bill. He mentioned balancing. The 1983 Act is a balance between powers to control and treat people and independent review and representation. The Bill upsets that balance completely. It gives to psychiatrists powers that they have not asked for and which many of them think will not work and will, as the noble Baroness, Lady Murphy, put so well, risk making those patients who may be the most dangerous run from mental health services. The work that has been done to contain many people and enable them to live normal lives will be lost.

We cannot compel the Government to listen. I hope that they will have a serious rethink. I disagree with the noble Lord, Lord Ouseley; the Bill is unfit for purpose. We have a very big job ahead of us to make it fit for purpose. I listened very carefully to the noble Lord, Lord Warner. He welcomed changes to the code of practice but not to the Bill. People have drawn parallels with the Mental Capacity Act, an Act that came with a draft code of practice but had at its centre principles and clear definitions of when powers would be used. That is in stark contrast to the legislation in front of us.

This is a clunking fist of a Bill; this is not modernising. This is about returning people to detention, which is not therapeutic and is not treatment. It is about turning things back several decades in mental health legislation. For those reasons, it will not achieve even the very limited aims that the Government have given to it. I do not believe that it will make things safer, not for patients and not for the general public. The noble Baroness, Lady Pitkeathley, is right; this Bill satisfies no one. It deserves the fullest and toughest scrutiny at all stages of its passage—if it ever does pass through Parliament. In this House, we have the expertise to put before the Government the reasons why the legislation is deficient and to make it better. I hope that the Government will now start to listen.

7.30 pm

Earl Howe: My Lords, as is fitting for a Bill of such importance, this has been a debate of particularly high quality. I begin by thanking the Minister for his lucid explanation of the Government’s policies as reflected in the Bill, and for the very measured tone that he struck when doing so. As a preface to the contributions that followed, it was extremely helpful.

I do not think there can now be any of your Lordships who is not conscious of the deep concerns aroused by the issues with which we are dealing. Those concerns come from differing viewpoints and reflect not only the inadequacies of the present law but the real fear that, through this Bill, Parliament might legislate in a way that did more harm than good. That is why it is important for us, as we debate the Bill, to remain focused on what must surely be the objective, which is to deliver at the end of the parliamentary process legislation that is balanced, humane, concise, workable and which will command widespread acceptance over the long term.

Last week, I was rather critical of the Government for having taken so long to bring a new Mental Health Bill before Parliament. The road, as we all know, has been long and somewhat rocky. There is one point that I do not seek to argue; the Government can be credited with recognising that there is a problem with the current Mental Health Act. As the Minister outlined, the problem is that it reflects attitudes and practices that are out of date and out of keeping with modern mental health service delivery. One of the tests of the Bill, therefore, will be the extent to which it corrects those shortcomings.

I also agree with the Minister that there is an issue to be addressed about dangerous mentally disordered people and whether and in what way there may be scope to improve the legal framework so that those individuals with an untreatable personality disorder who are dangerous, either to themselves or to others, can be looked after more effectively. No one should forget—we have been reminded by many speakers—the horror and grief which resulted from the case of Christopher Clunis, the schizophrenic who murdered Jonathan Zito in 1992; or the equally distressing case of Michael Stone, who murdered Lin and Megan Russell in 1996. It is right to ask what lessons lie in those tragic cases and whether more could be done to prevent similar tragedies occurring in the future.

The Government believe that this Bill provides part of the answer. Like the noble Lord, Lord Patel, and the noble Baroness, Lady Murphy, I am not at all convinced that the acts of violence committed by Clunis and Stone can be laid at the door of the Mental Health Act 1983. Therefore, to the extent that this Bill is designed as a means of preventing such incidents happening in the future, I shall argue that it holds out less promise than the Minister hopes. Like the noble Baroness, Lady Barker, I believe we should be looking at other routes.

Nevertheless, it is right that in our debates we should confront head-on the problems posed by dangerous people with severe personality disorders and consider ways in which those individuals might best be treated and dealt with. I say to the noble Baroness, Lady Pitkeathley, in particular, that we should not labour under any illusion. The Government have consistently stated in terms that in their view mental health legislation is not about improving services. According to them, it is about public safety and,

“the legal processes for bringing people under compulsion”.

I am personally very sorry that they should have chosen to make a statement of that kind so starkly and without qualification. As many noble Lords have pointed out, mental health legislation provides a perfectly legitimate opportunity to ensure that services are delivered in a way that reflects both sound principles and best practice.

I have no doubt that in Committee we shall debate a number of aspects of best practice, not least the issue of advocacy. But, aside from that,

“the legal processes for bringing people under compulsion”,

can never depend on just adhering to a set of mechanistic rules. They need to be underpinned by ethical codes of practice and by legal safeguards that respect the rights, dignity and autonomy of patients. It is not only what you do, but how you do it. Compulsion is a tool to be used very sparingly. Where it is used, it is as a means not only of protecting the public but of protecting patients from harming themselves. In both contexts, but in the latter particularly, it is an instrument of service delivery. It is therefore right that the Bill and its ensuing regulations should enshrine in the rules of compulsion those things that will ensure that best practice is fostered, as opposed to being put at risk.

There is a wider point, which was well emphasised by the noble Baroness, Lady Murphy. Compulsion, whenever and wherever it is used, is never bland. It is always, but always, traumatic, demeaning and stigmatising. This is a Bill which, when enacted, will govern the behaviour and practice of clinicians for the indefinite future. If we get the balance wrong between public safety and patient rights; if the Bill unduly widens the scope for individuals to be treated against their will; if it is seen to facilitate practice that traumatises, demeans and adds to stigma, it will be self-defeating. The one thing that we cannot afford is a generalised fear of the system. If people who are mentally ill are afraid of the system and of what it might do to them, that fear will deter them from seeking help when they need it. Good mental health services create a climate in which people with a mental illness want to come to a doctor and tell him what is in their heads.

The noble Lord, Lord Patel, quoted Dr Tony Zigmond of the Royal College of Psychiatrists. Those words bear reading in Hansard. The simple truth of what Dr Zigmond said tells us how delicate the balance is that the Bill needs to strike. He said,

“we need to get people to come and see us”.

The Clunises and Stones of this world must not be deterred from seeking help; but nor must you, or I, or anyone else, if we should ever find ourselves weighed down by mental distress.

In preparing for this debate, I have been struck by the disparity between some of the things that the Government say they want to achieve and what is actually in the Bill. In their response to the Joint Committee on the draft Bill of 2004, the Government said that they wanted to,

“reduce the need for compulsion”.

What they certainly do not mean by that, judging by this Bill, is that the law should make compulsion more difficult to achieve. If at one and the same time you broaden the definition of “mental disorder” to encompass potentially more people, and give “treatment” a new meaning, so that treating a patient does not have to involve doing him any good, as night follows day you are bound to ensure that the scope for administering compulsory treatment is made greater, not less.

The Bill includes no indication of the circumstances in which preventive detention might be considered appropriate, nothing about detention being necessary in all the circumstances, nothing about the severity of illness or patient need, and nothing about alternative measures being insufficient or inadequate. So while the Government may profess that compulsion might be necessary for only a small minority of people, the Bill as drafted does not seem to chime in with that policy intent.

The Government have also stated that,

“it would be inappropriate to use the Mental Health Bill to detain (or otherwise apply compulsion to) people who are not in need of specialist mental health care”.

What they certainly do not mean by that, judging by this Bill, is that doctors should never be put in the position of having to act unethically. Doctors most surely will be put in that position if the test of therapeutic benefit is abandoned in relation to clinical care and treatment. It amounts to abandoning the rule of “first do no harm”.

The other dimension is that of human rights. The main criticism of the phrase “appropriate treatment” that we have heard this afternoon is that it is imprecise—in my judgment deliberately so—and therefore can be taken to mean almost anything. “Appropriate” is a classic weasel word. If there is one thing that human rights law requires in rules that govern the use of coercion, it is that those rules should provide certainty. If they do not do that, the way that the rules are exercised is bound to be arbitrary to some extent, and you need only one piece of case law for “appropriate” to be applied in a manner that becomes increasingly authoritarian. In my opinion, the best way for the Government to begin addressing some of the criticisms levelled at them in this debate is to look again at that weaselly phrase, which has aroused suspicion and mistrust.

Our efforts in Committee will be directed at many areas of the Bill, some of them very important, that I do not have time to refer to today. But one area mentioned by almost all noble Lords was supervised community treatment. I do not object to the idea of CTOs as such, though the evidence for their effectiveness is still pretty thin on the ground. I accept that for some people a CTO may prove right and helpful. What I find disquieting about the proposals as they stand is the potential for them to be used on a large number of people. The stated aim of CTOs is that they should apply to so-called revolving-door patients, but as the Bill stands, the door does not need to revolve at all for a CTO to be imposed.

The power to apply a CTO to a person is broader in this Bill than in the 2004 draft Bill. It is true and very welcome that the power would be applicable only to those patients who had previously been subject to detention and treatment in hospital. But in practice it will not take much for a CTO to be approved. In the current culture of blame in the health service and with scarce resources for delivering good aftercare in the community, the clinician will look on a CTO as the safe option; a CTO protects his back. There is, in my judgment, a real risk that CTOs will become a substitute for the lack of available services in the community.

I am also worried about the lack of sufficient checks and balances. The clinician responsible for imposing a CTO does not have to refer to anybody—not the patient, not the nearest relative, not the carer, not the patient’s GP. Once the CTO is in place, the responsible clinician has total control over the conditions that are applied to it. Not even the mental health review tribunal can alter them, and the Bill provides for no independent scrutiny of the way that these powers of compulsion are to be used. That lack of checks and balances causes me considerable worry.

Not only does the Bill risk bringing more people into the system, it will also keep them in the system for longer, as we have heard. There are no maximum time limits for treatment under a CTO. If the clinician wants to renew a CTO, he can do so on the same broad grounds as he used before. Again, one can well envisage clinicians playing safe and opting for renewal. The analogy of the lobster pot has been used to describe the difficulty that CTOs represent to the patient: easy to get into, but extremely hard to get out of. It is not surprising that many people view this Bill as a charter for keeping people under compulsion for a very long time. I repeat: the more we see that happening and the more people we see being made subject to compulsion, the more we will see the trust between doctor and patient eroding and the more likely it will be that the Michael Stones of this world will be too afraid to come forward to recount the dreadful things that are in their heads.

That is why the balance to be struck in the Bill is more complex than simply rights on the one hand and safety on the other. The rights and the safety are mutually dependent. The success or failure of the Bill will be judged on the way that it protects not only patient rights but the values of modern-day clinical practice, not least patient dignity and patient autonomy; because unless the Bill does those things, it will serve to protect neither patients nor the public. As parliamentarians, we owe it to some of the most vulnerable individuals in our society to make this a Bill from which those values shine out.

7.46 pm

Lord Warner: My Lords, this has been a passionate and interesting debate on a complex and important issue. I pay tribute to all those who work in mental health services and share the views of other noble Lords who have spoken this afternoon about the importance of producing a workable piece of legislation for those people. From this debate, I certainly have a clear idea of where people stand on these issues. After listening to the noble Baroness, Lady Murphy, I shall be sitting up straight with my eyes alert in case she and the noble Lord, Lord Patel of Bradford, come calling with their pink forms.

I am grateful to the noble Earl, Lord Howe, for the calm and analytical approach that he adopted. I agree with him that we need to test the arguments and evidence, and we need to look carefully at these issues. Now is not the right time to try to respond in detail to many of the points made, but I should like to offer a few reflections on some of the key issues that have been raised throughout this debate.

First, I want to reassure the House that advocacy has not been dropped. Indeed, there are many areas where advocacy services are already available. In our view, we need to learn from those and build on that experience. We do not need legislation to do that and it is our policy intention to give patients access to advocacy on a non-statutory basis. We do envisage developments continuing to take place in this area.

Secondly, the issue of principles on the face of the Bill has been raised by a number of noble Lords. I remind the House that the Bill makes a series of amendments to the 1983 Act. It is not a total rewrite of mental health legislation with a new and different structure. That approach of amending the 1983 Act was a way forward that many people supported. We have re-written the code of practice accordingly and that contains a number of new guiding principles that are different from the old code. I refer to page 8 where noble Lords can see that there are 10 key principles. I shall refer to one—the transparency principle—which states that,

“decisions by professionals and statutory bodies should be made in a transparent way”.

There is another principle on participation, another on the assessment of risk principle, and so on.

I commend to noble Lords a study of the code, which has a statutory basis—Section 118 of the 1983 Act. Clinicians are required to operate in accordance with the principles of the code unless there are cogent reasons not to do so. Courts would have regard to adherence to the principles in individual cases. That draft code is in the Vote Office and copies have been placed in the Library.

It will be easier to keep those principles up to date in a code rather than primary legislation. A number of noble Lords have drawn attention to the fact that it is now 23 years since the last amendment of the legislation. That point is worth considering in this context. A number of noble Lords have raised the issue of a therapeutic benefit test. The likelihood of patients benefiting from treatment is clearly a factor in deciding whether appropriate treatment is available. However, it is worth reflecting that a therapeutic benefit test is like the so-called treatability test, which has fallen into disrepute in that it focuses on one factor—the likely outcome of the treatment.

We do not think that it is sensible to require decision-makers to demonstrate in advance that treatment is likely to have a particular effect. I suggest that that might mean inaction. An appropriate treatment test allows clinicians to make a holistic assessment and decide whether they have something clinically appropriate to offer in the same way that their fellow clinicians would be adopting for patients in other areas of medicine.

The right reverend Prelate the Bishop of Manchester discussed having in the Bill a clinically defined group of patients to which supervised community treatment should apply. However, we have defined the criteria and those groups of patients. Since the 2004 draft Bill we have, as I said earlier, restricted supervised community treatment to patients who are already detained and treated in hospital. Restricting it further is likely to limit its benefit and effectiveness. In most areas of medicine we leave a degree of discretion to clinicians to make judgments on the basis of the evidence presented in particular circumstances.

We have also provided in this area for criteria in the code of practice, and there are criteria in the Bill. A number of noble Lords have talked about the numbers affected. The information I have, which underpins the regulatory impact assessment, is that should the legislation be passed in its present form the expected number of people with a CTO would rise to the order of 3,000 to 4,000 per year over a five-year period. Those are the kinds of numbers that we have provided for in the regulatory impact assessment.

I shall respond to some of the concerns expressed by a number of speakers about the Bill not dealing with certain service areas. I gently suggest that it is a mistaken belief that it is necessary to prescribe those requirements in primary legislation. As a number of noble Lords have said, it is more critical that we expand the resources and range of services, a point made eloquently by my noble friend Lady Pitkeathley. As I explained earlier, we have done just that in terms of money, the professionals involved in mental health services—a good example of that is the 3,000 extra clinical psychologists who have been put in place—and the range of community services that are now available. For example, there are now 700 new multidisciplinary teams working in mental health in the community. That is a sizeable increase of the resources available to provide community services, which were simply not in place when the 1983 Act was passed.

We have 20 per cent more psychiatric nurses, and over 50 per cent more psychiatric consultants in place now than we had when we came to office. As several noble Lords have recognised, this is showing through in improved services. I think that we are entitled not just to take credit for that but to say that we should be trusted with the expansion and development of the services. We have delivered in this area—we have much stronger services. That is illustrated, for example, by the fact—as a number of noble Lords said—that we have the lowest recorded level of suicide and one of the lowest levels in Europe. Given our investment in this area, we can take it as given that we will safeguard our mental health services and the extra investment that we have put in place.

We will clearly need to discuss supervised community treatment further in Committee. I am grateful for the support that some noble Lords offered on that issue. I re-emphasise that in the Government’s view that is a key aspect of the Bill, with which we need to persist. It has the capacity to reduce the detention of people as in-patients and the time that they spend as in-patients. It is worth dwelling on that; I occasionally thought during our debate that that point was not recognised enough. By any stretch of the imagination it represents the prospect, if I may say so, of an improvement in civil liberties, not the reverse. By all means let us see if we can improve the legislation’s wording but let us not delude ourselves that we do not need it or assume that clinicians will not use it for the benefit of patients. It is too easy to slip into that mode of thinking.

A number of noble Lords raised the issue of children and young people. No one is keener than me to ensure that that group is properly looked after and have access to the range of services. I acknowledge that sometimes our child and adolescent mental health services have not delivered for many of our young people. It is an area that we need to keep a very careful eye on. However, it is important, when considering legislation, that we remember that the Children Act is designed to safeguard children and that in some cases it is more appropriate to use Section 25 of that Act than the Mental Health Act. It is also worth remembering that a Gillick-competent child of whatever age should not have their decision to accept or refuse treatment overridden by parental consent. All 16 and 17 year-olds are considered to be competent to offer their views on treatment if they have the capacity. The draft code of practice, which I mentioned earlier, has a section on the treatment of children and young people and that code has a statutory basis. They have not been overlooked.

I recognise that a number of noble Lords are not satisfied with our approach and that people outside this House share that view. I cannot respond to all those concerns now but I know that we will explore them in more detail in Committee. I recognise the deep and worrying concerns about the overrepresentation of black and minority ethnic groups in our detained mental health services. I pay tribute to the work of the noble Lords, Lord Patel of Bradford, Lord Adebowale and Lord Ouseley, and I share the enthusiasm, expressed by other noble Lords, for having them keep us focused on this issue. I am sure that they will do so during the later stages of this Bill.

My noble friend Lady Ashton will join me during the Bill’s later stages on the Bournewood safeguard issues, which a number of noble Lords raised. I propose to leave those issues to later debate, but I assure the House that my noble friend has responded positively to the helpful request from the noble Lord, Lord Adebowale, for a meeting to discuss those issues as soon as that can be arranged.

In conclusion, I make it clear that we are very much in listening and negotiating mode, and we will continue in that vein with the various interests that have concerns about the Bill. I reassure the noble Baroness, Lady Barker, that what I am saying applies to the Bill as well as to the code. Our listening mode will not distinguish between those two documents.

However, it is essential that we modernise the 1983 Act and I am grateful to noble Lords who have recognised that. We have to do that particularly, as the noble Earl, Lord Howe, rightly said, to reflect the expansion of community services and the range of mental health professionals working in this area. We must deal with the definitional problems that arise from the 1983 Act, and we need to improve patient safeguards, such as those relating to the nearest relative. So there is much work to do. We need to adopt that constructive approach—it will certainly be the approach adopted by the Government—and produce a workmanlike Bill that can go to the other place. I ask the House to give the Bill a Second Reading.

On Question, Bill read a second time, and committed to a Committee of the Whole House.