Download the Lords Report Stage text

Mental Health Bill
Text of readings and committees in the House of Lords
From: http://www.publications.parliament.uk/pa/pabills/200607/mental_health.htm
Report Stage – Monday, 19 February 2007 ..................................................................................... 2
[Principles] .......................................................................................................................................... 2
[End of Principles] ........................................................................................................................... 15
[Detention for sexual orientation, beliefs, disorderly conduct or drug use & vote] ................... 17
[End of Detention for sexual orientation, beliefs, disorderly conduct or drug use & vote] ...... 38
[Treatability and care & vote] ........................................................................................................ 38
[End of treatability and care & vote] ............................................................................................. 55
[Registered Medical Practitioner & vote] ...................................................................................... 55
[End of Registered Medical Practitioner & vote] ......................................................................... 68
[Bournewood] ................................................................................................................................... 68
[End of Bournewood] ....................................................................................................................... 72
[Care planning] ................................................................................................................................ 89
[End of care planning] ..................................................................................................................... 92
[Approved Mental Health Professionals] ....................................................................................... 92
[End of Approved Mental Health Professionals] .......................................................................... 93
Report Stage – Monday, 26 February 2007 ................................................................................... 94
[Children in adult settings & vote] ................................................................................................. 94
[End of Children in adult settings & vote] ................................................................................... 110
[Conflicts of interest] ..................................................................................................................... 110
[End of Conflicts of interest] ......................................................................................................... 112
[Criminal Justice, bail] .................................................................................................................. 112
[End of Criminal Justice, bail] ...................................................................................................... 113
[Advocacy - young people] ............................................................................................................ 115
[End of Advocacy - young people] ................................................................................................ 119
[Community Treatment Orders & vote] ...................................................................................... 124
[End of Community Treatment Orders & vote] ......................................................................... 138
[Community Treatment Order appeals & vote] ......................................................................... 139
[End of Community Treatment Order appeals & vote] ............................................................. 148
[Places of safety] ............................................................................................................................. 173
[End of Places of safety]................................................................................................................. 176
Report Stage – Tuesday, 27 February 2007 ................................................................................. 189
-1-
Report Stage – Monday, 19 February 2007
3.08 pm
Report received.
[Principles]
Earl Howe moved Amendment No. 1:
Before Clause 1, insert the following new Clause—
“Guiding principles: incorporation in the 1983 Act
(1) Part 1 of the 1983 Act (application of Act) is amended as follows.
(2) Before section 1 (application of Act: “mental disorder”) insert—
“Guiding principles
A1 Application of Act: guiding principles
(1) In the discharging of a function by virtue of this Act, a person shall have regard to—
(a) the importance of the patient participating as fully as is possible in the discharge of the function;
(b) the present and past wishes and feelings of the patient which are relevant to the discharge of the
function; (c) the principles of non-discrimination contained in— (i) the Sex Discrimination Act
1975; (ii) the Race Relations Act 1976; (iii) the Disability Discrimination Act 1995; and (iv) the
Equality Act 2006.
(2) After having regard to the matters mentioned in subsection (1) above, the person shall
discharge the function in the manner that involves the minimum restriction on the patient
that is necessary in the circumstances.””
The noble Earl said: My Lords, we begin our Report stage by returning to an issue that occupied us
in Committee for several hours and which, of all our Committee debates, perhaps elicited the most
support from around the Chamber. I refer of course to the case that I and others put for including a
set of key overarching principles in the Mental Health Act.
The reasons for wanting to do that are very simple. First, we need a clear statement from Parliament
about the values that should inform and guide those tasked with putting the Act into practice.
Secondly, we need to reassure the public and those in receipt of mental health services under
conditions of compulsion that the values and principles set out in the Act should permeate how
those services are provided. Thirdly, we need to give greater clarity and certainty to the courts,
which over the years have been asked to rule on numerous challenges to the Mental Health Act on
human rights grounds.
A view expressed in Committee was that a good code of practice can be more effective in law than
can principles in a Bill. Some people believe that practitioners will use the code more readily than
-2-
the law. The code is indeed indispensable in that sense, but we are dealing with no ordinary
legislation. This legislation provides for individuals who have committed no crime to be detained
and treated under conditions of compulsion and to be subjected to procedures and treatments that
are highly invasive. The inherent three-way tension in the Bill between the rights of patients, public
safety and avoiding the excessive and inappropriate use of coercive powers makes it essential to
have clarity about the underlying values.
19 Feb 2007 : Column 886
Those considerations, above all, have led me and many other noble Lords to conclude that not
simply the code of practice but the Act itself must enshrine a set of relevant principles to guide
those who interpret and implement it. We know that practitioners regularly refer to the Act itself,
and that the Act has a far greater influence on case law than the code of practice. Indeed, case law
says that the code of practice can be departed from according to circumstances but that guiding
principles are of general applicability.
In Committee the Minister made it clear that his objection to including principles in the Bill was not
so much constitutional as a worry about their practical impact. I have never concealed my view that
the principles are designed to have a practical impact; indeed, that is their whole point. It is clear
from the Act as it is now that various principles are already implicit in it. The noble Lord, Lord
Hunt, took us through those. I share his view that nothing should be done to the Mental Health Act
that might detract from its clarity. I believe that his fears about possible unhelpful conflicts between
what is implicit in the Act and what is explicit in the Committee amendment were overdone.
Since Committee, I have had the benefit of private discussions with the Minister, for which I thank
him. I have taken careful note of the points he made about the possible risks involved in framing an
amendment of this nature. I have also borne in mind the Government’s comments in response to the
joint scrutiny committee indicating that a limited set of broad and general principles would be
acceptable if properly drafted. I see nothing whatever difficult or contentious about the principles
for which I argued in Committee. They are all important.
Nevertheless, this amendment is briefer and less ambitious than the earlier one. It is designed to
enshrine four principles of general applicability, which I hope and believe do not conflict with the
interpretation of the Act as it currently exists. They are: patient participation; the importance of
having regard to the patient’s past wishes and feelings; the avoidance of unfair discrimination in all
its forms; and the principle of least restriction.
I argued for all of those in Committee and do not propose to repeat the points I made then. Let me
simply say this: the way to make the Mental Health Act work in its revised form is to give patients
and service users maximum confidence in it by making them feel that they are still trusted and that
their views matter, even if they are, at that very moment, being subjected to coercion. We know
from reports by the Mental Health Act Commission that too many patients feel excluded from
decision-making and that that feeling of exclusion exacerbates non-compliance. Equally, we have
only to think back to our debates on the Mental Capacity Bill to remember that the wishes and
feelings of the most vulnerable in society are of central importance to the way in which medical
practice is now moving.
19 Feb 2007 : Column 887
3.15 pm
-3-
The Minister may criticise as legally superfluous the part of the amendment dealing with nondiscrimination, but even something legally superfluous can have value. It has a declamatory value
to a patient who has been on the receiving end of discrimination and prejudice in any of its forms
and it also has a powerful symbolic value, reflecting the priorities of Parliament and the feelings of
society more generally on mental health law. The fears experienced by black and ethnic-minority
communities need to be in our minds most particularly. We know that discrimination towards
patients from those communities is commonplace. The consensus in the BME Mental Health
Network is that specific measures must be built into the Act to set the parameters of acceptable
behaviour by mental health professionals.
Finally, there is the principle of minimum restriction. Minimum restriction should apply not only
when detention has taken place but also at the earlier assessment stage, when practitioners need to
think about whether all other alternatives to compulsion have been exhausted. The principle relates
to how the powers under the Act are used; for example, in granting leave of absence or supervised
discharge and in the form of treatment given. The way that those powers are used can, for good or
ill, profoundly affect the patient’s recovery and his degree of engagement with mental health
services in future. People who are subjected to coercive measures undergo dreadful trauma and
deep humiliation, often at a considerable social cost. A principle that makes clear that such powers
must only ever be used with the utmost care and discretion seems essential. I know that the Minister
has given these issues a lot of thought since we debated them in Committee, and I hope that he will
give us an answer that reflects those deliberations in a constructive and positive way. The case for
the amendment is overwhelming. I beg to move.
Baroness Barker: My Lords, in Committee I raised the question of what mental health legislation
is for. I return to that matter today. It goes to the heart of why we need principles in the Bill. Like
the noble Earl, Lord Howe, I have been involved in detailed discussions since Committee about
whether it is possible or desirable to include principles in the Bill. I have gone away from every
meeting trying to answer the question of what difference it would make in practice. The answer
came to me after I listened to two people.
The first person was Professor Appleby, the Government’s mental health adviser. On 30 January, in
a meeting with a number of all-parliamentary groups, he talked about the role of mental health
legislation. He said that it is possible to take one of two approaches: either you believe that mental
health legislation is about enshrining rights and responsibilities—in which case practitioners are
looking over their shoulders all the time to make sure that what they are doing is correct—or you
believe that there should be a limited role for the law and that practitioners should be allowed to
carry on and get on with the job of making people better. Those were
19 Feb 2007 : Column 888
perhaps overstated positions but they clarified for me the role of mental health legislation. It is
about setting out, using the best knowledge available to us, what we believe is the ethical basis of
legislation. This legislation governs the only form of treatment that can be given to a person
compulsorily against their wishes—the only detention outwith the criminal justice system.
The second person who gave me some clarity on the matter was the Minister. In our discussions in
Committee he talked about the 1983 Act. He said that it already contains overriding principles,
“albeit that they are inherent in its provisions and not separately spelled out”.—[Official
Report, 8/01/07; col. 47.]
-4-
He went on to list six, one of which is the principle of least restriction. Twenty-three years on,
arguments are still raging about whether that principle is enshrined in that legislation, and, if so, to
what parts of mental health practice it applies. It is no wonder that practitioners look over their
shoulders. There is a lack of clarity about the law.
I have listened very carefully, not least to the noble Lord, Lord Soley, who in Committee talked
very convincingly about dealing as an MP with very difficult cases of people with a mental illness
causing extreme problems for other people. However, I have concluded, for the reasons I gave, that
unless we have not only a clear statement of principles in the legislation but also clarity about how
the legislation and the code of practice work together, we will condemn practitioners and people
subject to this law to continuing confusion. That, I believe, would be wrong when we have the
chance before us to shed light on the matter.
My second point is, again, one that I raised in Committee. If we accept that there should be
principles, what should they be? The noble Earl, Lord Howe, has explained why this time around
the amendment, which stands in both our names, has been changed to accommodate some of the
problems that parliamentary counsel outlined. I accept that we had to change the provisions, just as
those of us who worked on the Mental Capacity Act did when we were trying to achieve the same
ends. Parliamentary counsel explained that we could not use the standard equalities and diversity
format that one would use elsewhere.
I want to return to the principles in the code of practice and to take issue with how some are written.
The participation principle in the code of practice talks about care or treatment being provided in
such a way as to promote patient participation, self-determination and personal responsibility to the
greatest practicable degree. It is not clear exactly what that means.
In the “respect for others” principle, the code talks about people being treated with respect and the
respect for wishes and feelings so far as they are known. At a later stage we will talk about the
efforts which should be made to record a patient’s wishes and feelings and how practitioners need
to take account of them.
The principle of minimum restriction in the code of practice is ambiguous. It talks about restriction
19 Feb 2007 : Column 889
and keeping the use of compulsory powers to the minimum necessary—“the minimum necessary”
to do what? I hope that the Minister will accept that there is a case not only for including some
principles in the Bill but also for an explicit statement about how they will interact with principles
in the code of practice.
As the noble Earl, Lord Howe, said, the reason for that is not pedantry. It is perhaps one of the most
important decisions we can take. The aim is to end up with legislation that not only appeals in that it
has a principled nature but in practice offers security and clarity to those who will be subject to it
and those who have to operate it, whose professional reputation rests on it. I believe that we have
come to, if not a perfect compromise, a way forward and I very much hope that the Minister will
accept that.
As we have said, we have an opportunity that comes but very rarely to Parliament to make
legislation that will affect the lives of many vulnerable people. I hope that in doing so, we will pass
legislation that is fit for purpose.
-5-
Lord Soley: My Lords, first, I acknowledge the comments made by the noble Earl, Lord Howe. He
has made a significant improvement on the original amendment, which I welcome. I do not know
whether the Government plan to accept it or not. I still have some concerns. They are twofold.
First, if you ask a person exercising authority under the Mental Health Act to take into account the
Race Relations Act, the Sex Discrimination Act, the Equality Act and so on, you are putting in their
mind when they take a decision to discharge or admit that they may face a legal consequence under
one of the linked Acts if they get that decision wrong. That is a problem. I do not think that most
professionals in most areas read the full Act other than once or twice in their lifetime, so guidance is
more important. At times in both this House and the House of Commons, we set ourselves a double
bind. We call for less legislation, but we put things in Acts that require people to jump through even
more hoops in order to take a decision. We must be aware of that balance.
To my mind, the key Act here is the Race Relations Act. In our previous debate, every one of us
acknowledged that there is a major problem in the psychiatric area generally with the excessive
treatment of people from ethnic minority communities. We must ask, first: do we deal with that by
inserting a reference to the Race Relations Act in the Bill? Secondly, if doctors, nurses and others
have that in the forefront of their mind, what effect will it have on their decision-making? It might
result in them facing legal action. That is a problem for them.
I have felt for many years—I do not think that this will be deeply disputed—that part of the reason
why we have an excessive number of ethnic minorities in psychiatric institutions is a lack of doctors
from ethnic minorities, something that the medical profession needs to put right and pay more
attention to. The other factor, which is deeply unquantifiable, is the extent to which the pressure on
ethnic minority individuals in the community as a result of their being
19 Feb 2007 : Column 890
from an ethnic minority and perhaps experiencing extremes of racial hostility, may trigger or
accentuate a medical condition that would not otherwise be picked up, or even be a problem. We
need to focus on that area, rather than just saying that the doctor, nurse or whoever must be aware
of the Race Relations Act. There is still a problem with that.
I would not lose too much sleep if the Government accepted the amendment in its current form, but
I would be worried that in time we might find ourselves arguing that this should not have gone into
the Act because it imposed a duty on professionals that was unreal and that perhaps tempted them
not to take actions that they would otherwise take. It is a very real dilemma, and I have no criticism
of the intentions of the other two speakers or of the other noble Lords who have added their names
to the amendment. Indeed, I believe that we all share those intentions. It is, as always in legislation,
a question of whether you deliver those intentions or whether you inadvertently put other barriers
and hurdles in the way that cause a problem.
3.30 pm
I hope that the Government will give considerable thought to the amendment before deciding
whether to accept it, although I welcome it as a significant improvement on the other amendments
in the list. There were contradictions in that list, which again indicates the problem; I suspect that if
you trawl through the various Acts referred to in the amendment, you might find contradictions in
them, too. We are passing something that must stand up not only in our opinion or in a code or
guidance, but in a court of law, and under which a professional will have to decide whether they are
in danger of being in breach not only of what will become the Mental Health Act but of one or more
of the other Acts referred to therein.
-6-
Lord Carlile of Berriew: My Lords, this debate and the whole debate on principles are about legal
clarity. If the courts have legal clarity, they can enforce laws made by Parliament. If they do not
have legal clarity, I am afraid that we will get laws made by judges, because they will be left to
interpret opaque determinations by Parliament. The rule in Pepper v Hart enables courts to look
particularly at ministerial Statements made in debates such as this. Pepper v Hart discussions are a
poor substitute for clear and enforceable law. The Minister will know that there is no area in which
judges are more inclined to make or reinterpret law than in the area of judicial review. I urge him,
when he responds to the debate, to take the view that the more clarity that emerges from this
Parliament, the less likely it will be that judges, who can sometimes be naïve in their interpretation
of that often hilarious concept—the intention of Parliament—will try to interpret what we have
decided in a way that is far departed from our true intention, if we understand that intention.
I am sure we all agree in this House that it is essential that some people should be detained
compulsorily. However, those who are so detained can face long detentions, sometimes for the
whole of their
19 Feb 2007 : Column 891
natural lives. Those of us who have visited hospitals such as Rampton, Broadmoor, and St Andrews
in the private sector, have seen very high quality care provided for mentally disordered people in
those institutions. But it needs to be very high quality, because such institutions are accommodating
them for a very long time. Furthermore, in many cases, they are accommodating people who do not
understand why they are detained compulsorily or who are unwilling to be detained for as long as
they come to be. I am sure we would all agree that it is essential that those who are detained should
have a right to challenge that detention, which both they and the courts should understand with
certainty. It is essential that the basis—the principles—on which they are detained are understood.
In 1999, which is seven and a bit years ago now, the expert committee chaired by Professor
Genevra Richardson, now of King’s College London, not only recommended that principles should
be set out in the mental health Bill that it was considering—the first version of a three-edition
attempt to reform the law—but set out those principles in its report. The Mental Health (Care and
Treatment) (Scotland) Act 2003 set out in legislative form the principles that underline all decisions
about compulsory detention in Scotland. Some pretty insulting discussions have taken place in this
House about the size of Scotland and differences between Scotland and England, but I understand
that there is no difference between Scotland and England and Wales in terms of the removal of
freedom from citizens of the United Kingdom. I am puzzled at how the Government can justify a
difference between citizens of the United Kingdom living in Scotland who are detained and citizens
of the United Kingdom living in England and Wales who are detained, and I remain to be persuaded
that there is any sound basis for it.
In March 2005, the joint scrutiny committee, supported by evidence from the Joint Committee on
Human Rights and numerous others, reported that it was essential for principles to be in the Bill.
Whatever the Minister says today, the Government have had over seven years to consider this.
During those years they have indulged in a form of intellectual hokey-cokey that is perplexing to
those of us who try to take a serious and consistent view of the issue of principles, and the Minister
will be aware that when the Government responded to the joint scrutiny committee, they indicated
that they were well disposed to including at least some principles in the Bill. The joint scrutiny
committee set out the principles we believed should be included, and although the Government did
not indicate that they accepted them all, they certainly did not make it clear in their response that
they thought that no principles should be included or that they should be minimalist. Surely a strong
argument can be made for consistency on this issue between different pieces of legislation. The
Children Act 1989 and the Mental Capacity Act 2005 include principles, and the purpose of those
-7-
principles in these complex Acts is clear. As the committee said, they make clear to everyone
implementing the legislation what they are trying to achieve and what considerations should guide
their actions. I suggest that those principles and that form of clarity should be jettisoned only for
sound and compelling reasons.
19 Feb 2007 : Column 892
I am reluctantly prepared to support this amendment because I regard it as minimalist; it is better
than nothing, but it is nothing like what the joint scrutiny committee wanted. I shall listen with great
care to the Minister, but I urge him not to try to persuade the House that nothing is something,
because we will not be persuaded. As the former chair of the joint scrutiny committee, I for one am
absolutely determined that if the Government do not make a meaningful concession in this regard,
we will return to this issue in the future.
Lord Patel of Bradford: My Lords, I should like to make a short contribution to the debate. The
Minister has argued that we cannot have principles in the Bill for practical reasons as it may lead to
a “lack of clarity” and a “lack of understanding” by practitioners. It would seem that this conflict
arises only in the current Bill because the Government previously accepted the value of including
principles in the 2004 Bill and, as many noble Lords have pointed out, they included guiding
principles in the Mental Capacity Act 2005. But, leaving that aside, I shall address the one area
which the Minister did not address—non-discrimination. I wish to say something about just one
aspect of it in respect of race equality.
First, I have a real problem with the idea that practitioners would be confused by a principle of nondiscrimination. Having looked through the current Act, I cannot find mention anywhere of the idea
of discriminating on the basis of ethnicity, race or any other area; so I fail to see where conflict
would arise. Secondly, we have all spoken at great length about the inequalities faced by certain
ethnic groups in our mental health system. Regrettably, we are still failing to do enough to rectify or
alleviate the situation. The principle of non-discrimination regarding race equality in this Bill would
be, I would argue, only one small step towards reassuring the black and minority ethnic
communities and those delivering services that we are serious about addressing these failings in our
mental health provision.
Finally, if it is true, as the noble Baroness, Lady Barker, stated in her opening comments when we
first debated the Bill, that this is actually a Home Office Bill masquerading as a health Bill, and it is
the Home Office which is really opposed to having principles on the face of the Bill—I urge the
Minister to remind his colleagues that more than a quarter of the prison population are from black
and minority ethnic backgrounds, that stop and search figures for black and Asian young people
continue to rise, and that disproportionate numbers of black people are referred to mental health
services via the criminal justice system rather than primary care services—perhaps the Home Office
should have principles on the face of its own legislation.
The Lord Bishop of Coventry: My Lords, I support the amendment which, as I understand it,
places these principles not only in the Bill but, by extension, in the 1983 Act.
I welcome the amendment for three reasons; the first is to do with transparency and clarity, a point
19 Feb 2007 : Column 893
that has already been made. I speak as a mere layman in matters of law, but it seems that clarity and
transparency are essential not simply for the sake of those who are called upon to make judgments
-8-
in these matters but for the general purpose of the public, who need to understand what this is all
about.
Secondly, I, too, believe that there needs to be consistency with other Acts, particularly the Mental
Capacity Act. The principles would provide a parallel with those set out in that and other
legislation.
Thirdly, the principles are entirely consistent with the Judaeo-Christian understanding of the dignity
of human beings. However, it is not simply the Judaeo-Christian understanding but one with which
people of a humanist or secularist vent would be perfectly happy to identify. It is difficult to see
how the principles of maximising patient participation, taking account of patients’ feelings and
wishes, the avoidance of discrimination and of least or minimum restriction could ever be thought
outdated or irrelevant.
I believe that the amendment will provide useful guidance and constraints on treatment and go some
way to meeting the remaining anxieties about the effect of the powers in the Bill on people with
mental health problems.
Lord Ramsbotham: My Lords, I welcome the amendment in principle, but I share the concern of
the noble Lord, Lord Carlile of Berriew, that the principles it contains do not go as far as those
which we discussed in such marvellous detail on Second Reading and in Committee. I am speaking
particularly on behalf of one other minority—those in custody. I have not discussed the movement
that has happened since the Committee stage between the Minister and the noble Earl, Lord Howe,
but I have taken soundings from those who are responsible for the delivery of mental health services
to those in custody. They are all very concerned that codes of practice do not tend to apply, whereas
principles may.
The reason why principles are so important is that the Government made great play of the fact that
those in custody should receive exact equality of treatment with those outside. Unless that equality
is enshrined in principle, I can see all sorts of reasons and excuses why that should not apply.
Therefore, although the amendment goes so far, I hope that there is still time to make certain that
those in custody and their needs are enshrined in principle somewhere in the Bill. The well of
psychiatric morbidity in our custody system is something this country needs to take care of and
should, frankly, be ashamed of.
3.45 pm
Lord Adebowale: My Lords, I declare an interest as chief executive of Turning Point social care,
which provides a large number of mental health services in England and Wales. I will speak briefly
but, I hope, strongly in support of the amendment. The noble Lord, Lord Carlile, has already
mentioned the Scottish position, and I want to bring home, in case we hear again that principles will
confuse practitioners, the reality of having principles on the face of the Bill, as
19 Feb 2007 : Column 894
applies in Scotland. I quote from Dr Mark Taylor, a consultant psychiatrist in Glasgow, who has
worked on a number of tribunals, both before and after the new Act. He was seconded to the
Scottish Executive to help with mental health Act training. He believes that,
“it would be helpful for all parties to have principles”.
-9-
The principles promote best practice. For example, a lawyer can question a psychiatrist as to
whether he has adhered to the principles as far as he can, and this in turn encourages the psychiatrist
to consider in advance of a tribunal any issues raised by the principles.
I will refer to an example of how the principles of “present and past wishes” and feelings translate
into practice in Scotland. When Alex was admitted under compulsory powers, he was acutely
unwell but had a degree of insight about his previous experience of mental health care. Taking note
of the principle, the clinician specifically asked him about which treatments he felt had been
particularly helpful or unhelpful in the past. As the clinician used this information as the basis for
his care plan, Alex was far more inclined to co-operate with his subsequent treatment. Because of
the inclusion of principles, trust underpins the whole operation of the Scottish Act. Principles would
help to foster trust in the mental health system in England and Wales. Two people using Turning
Point’s mental health crisis services illustrate the lack of trust in the current system. They had no
hesitation in telling me:
“Because of my experience in hospital, I do not tell any of my workers when I am feeling
unwell. I don’t ask for help in case I am sectioned. Being sectioned is intrusive rather than
supportive”.
In short, the more service users have confidence in the system and in the people working with them,
the more likely they are to be engaged in their treatment, leading to better outcomes for them and
for society as a whole. Trust is especially important, as we have heard from many noble Lords, for
those from BME backgrounds. For example, for African and Caribbean communities,
discrimination and mistrust mean that contact with mental health services is more likely to be
coercive, as we have heard from the noble Lord, Lord Patel of Bradford, and involve the police,
making it more difficult to develop therapeutic clinical relationships with patients. Those poor
clinical relations lead to less compliance with treatment and poor outcomes, leading to increased
use of coercion and increased distrust. It is a vicious circle. We need a step change in the way in
which mental health services are perceived. If this Government are serious about increasing
confidence and engagement—I believe they are—principles cannot be left to the code of practice.
They must be given the weight, visibility and priority that can come only with inclusion in the Bill.
Lord Alderdice: My Lords, those who would be implementing this legislation are healthcare
workers. They are not prison officers, policemen or lawyers. They are not used to the idea that their
work involves compulsion, coercion and detention. This is a singular episode from their point of
view. Therefore,
19 Feb 2007 : Column 895
some guidance is required in the Bill as to how their work should proceed in this unusual coercive,
detained context.
To put it briefly, I take what the Minister said in the previous debate that a smaller number of
principles could produce clarity. Healthcare workers do refer to the Act on a Friday night when they
are trying to address these matters; they do not get involved with a huge code of practice. A brief
series of principles that lays out clearly how the compulsion, detention and coercion are to be
conducted, in a way that is not a la the prison or the police cell but is in a caring context, would add
considerably to the comfort of patients and indeed of their carers.
Lord Turnberg: My Lords, I apologise for not having spoken at the Committee stage of the Bill,
but I was unavoidably elsewhere, and I could not be in the House. I will just say one or two words
- 10 -
of support for the principle of having principles on the face of the Bill. It would be invaluable to
have them there, for all the reasons that have been rehearsed here, both today and previously.
However, I have one or two concerns about these particular principles. My first concern relates to
the phrase,
“present and past wishes and feelings of the patient”.
Of course, the feelings of patients are vitally important. My difficulty is how to define those on the
face of the Bill. I wonder whether the words “and feelings” are helpful.
My other concern relates to the referral to the other Acts. Presumably the other Acts are all in force.
I am unclear whether it is essential to have referrals to those Acts in the Bill because, presumably,
someone would be acting illegally if they contravened, for example, the Sex Discrimination Act
irrespective of whether or not it is mentioned in this Bill. I wonder whether those Acts should be
there.
I fully support the principle of having principles. I hope my noble friend will take into account the
strength of feeling around the House.
Baroness Carnegy of Lour: My Lords, I am sorry that the amendment is not as detailed as the one
we discussed in Committee. I thought that the Government’s argument against that amendment was
extremely weak. We were told that because of the way in which the Bill amends the 1983 Act, it
was very difficult for the draftsman to know whether all the principles would be in the list. That was
a pathetic argument. If the draftsman could not ensure that we should not be pursuing this
legislation. But now we have a much simpler amendment which, from the way people have been
talking, is less satisfactory than the previous amendment but better than nothing.
I was not sure about the argument of the noble Lord, Lord Soley, that because four other Acts are
mentioned in the amendment it might make practitioners more liable to prosecution under those
Acts. But such law exists and if for some reason people went astray they could be prosecuted under
those Acts anyway. So
19 Feb 2007 : Column 896
it would not make any difference; it is just a way of identifying principles of discrimination.
The point made by the noble Lord, Lord Carlile, about the principles on the face of the Scottish Bill
is very important. Should we be legislating in the United Kingdom about the liberty of people with
mental illness on grounds of different principles on different sides of the Border? I shall say
something later about what the Minister said when he described the differences in another aspect of
the Bill as one of the “beauties” of devolution. It is not a beauty of devolution if one’s liberty is
threatened on different grounds of two sides of a border in the same nation. That is a very
unfortunate aspect of the Bill.
However, the Government seem determined to do this. I detect from the debate that they prefer this
amendment to the one in Committee and perhaps they will see their way clear to putting principles,
which according to their lights are appropriate, in the Bill. I support my noble friend.
The Minister of State, Department of Health (Lord Hunt of Kings Heath): My Lords, as at
Committee stage, we have had a very good debate on the question of principles and I hope to offer
noble Lords a constructive way forward.
- 11 -
There is no disagreement between the Government and noble Lords who have spoken today. Like
the noble Earl, Lord Howe, we wish to see a clear statement of values, as he described it. Nor is
there any argument about the need for as much clarity as possible both within the legislation and the
code of practice. We could have a theological debate about the thousands of practitioners out there
and the extent to which they consult the legislation and the code but it is clear that, collectively, we
have to ensure that practitioners understand both the legislation and the guidance. That
understanding goes together.
The Government’s concern all along has been with the way that the amendments have been put
forward. Although it appears to be straightforward to add a number of principles to the Bill, unless
these things are drafted as carefully as possible, far from giving clarity, there could be confusion
among practitioners. That is why we have been working hard to see whether we can find a way
through that accommodates the clear wish of noble Lords and practitioners to understand fully the
principles that inform the way this legislation will be dealt with and practised, at the same time as
ensuring that we clarify and not confuse.
There is no argument that the principles that underpin a Bill that amends an established Act, which
enables people to be deprived of their liberty, are of critical importance. Deprivation of liberty is a
serious issue and we must deprive people of their liberty only when it is essential to do so. We have
to achieve the right balance of powers to intervene to prevent harm and to safeguard an individual's
rights. However, in the light of comment on the Bill over the past weekend, I want to emphasise
that the intention is not to lock up more people or to keep people unnecessarily under compulsory
powers once they have been detained in hospital. The Bill is about ensuring that people who need
treatment, because they have a mental disorder that is so serious
19 Feb 2007 : Column 897
that they are a danger to themselves or others, get the help and protection that they need in the right
environment. We want to reduce the incidence of patients with a mental disorder losing touch with
mental health services after being discharged from hospital, getting ill and reaching a crisis.
It is clear that the principles that we have debated today and in Committee would provide
reassurance about our intentions with the legislation. In Committee, I explained some of the
problems that we have with including principles in the Bill. I know that the noble Baroness, Lady
Carnegy, criticised the government response, but in my winding up speech I said that it was not
about the niceties of parliamentary draftsmen. Because of the way that these amendments would
appear in the Act, there is a danger that, instead of the clarification that she seeks, considerable
confusion and uncertainty could be caused for practitioners.
The noble Lord, Lord Carlile, mentioned, as he did in Committee, the Mental Capacity Act and the
Scottish Act. Much water has flowed under the bridge over the past eight or nine years but the
Government have decided to produce an amending Bill not a comprehensive new Bill covering all
mental health legislation. Consequences flow from that. One is that it is not easy to simply graft the
principles that have been suggested onto the existing 1983 Act. I accept that the noble Earl, Lord
Howe, and his fellow proposers have made every effort to respond to the points that I made in
Committee two or three weeks ago. Their amendment would require all those discharging any
function under the Act to have regard to each of the three principles and then exercise the function
in the least restrictive manner—but even those principles, when placed in legislation, would raise
some issues. The current Act makes specific and detailed provision for a multitude of different
situations. Principles may already be given specific effect in the relevant part of the Act or may not
in fact be relevant to every situation or, as my noble friend Lord Turnberg said, may conflict with
each other or with the specific provisions of the Act. What weight is the decision maker to give to
- 12 -
the different criteria in that case? Is there a potential for him to be challenged because he has, for
example, not complied with the patient’s wishes? Will patients who would otherwise be detained
for treatment be released with consequent risk to public safety and their own because the decision
maker thinks that the patient’s wishes and the need for minimum restriction must take precedence
over the risk of harm to themselves and others?
4 pm
The 1983 Act already embodies the principles that are proposed in the amendment. Part 2 of the Act
provides the basic criteria for detention for civil patients. For example, to detain someone under
Part 2 of the Act specific criteria must be met to ensure that hospital treatment under compulsion is
both appropriate and necessary. First, the patient must have been examined by two medical doctors
who must conclude that the patient is suffering from a mental disorder, and that that disorder
requires treatment in
19 Feb 2007 : Column 898
hospital. But this is not all. The medical practitioners must conclude that the mental disorder is such
that the patient is at risk of harm to themselves or to others. They must be able to determine also
whether other methods of dealing with the patient are available, and, if so, must be able to explain
why they are not appropriate. In addition to these strict criteria, it is a requirement of the process of
detention that the patient participates in the process and that an attempt is made to ascertain their
wishes and feelings. These principles are embodied in Section 13, which requires the approved
social worker to interview the patient. The approved social worker under Section 13 must also
satisfy themselves that admission to hospital is, in all the circumstances of the case, the most
appropriate way of providing the care and medical treatment that the patient needs—and this
embodies the principle of using the minimum restriction.
The need to allow the patient to make clear his views and to take account of them when considering
admission is already catered for in the 1983 Act. What would be the effect of adding a requirement
to consider separately the principles set out in the amendment? Does it mean that if the patient does
not want to be detained he should not be, or should the fact that the statutory criteria are met
outweigh the patient’s wishes and the minimum restriction principle? The answer is unclear.
In Committee, noble Lords expressed concern about the provisions for supervised community
treatment, and amendments have been tabled to tighten the criteria for being placed on a community
treatment order. This amendment requires function to be carried out in a manner that involves the
minimum restriction necessary. It is at least arguable that supervised community treatment is less
restrictive than detention in hospital. This amendment might cause confusion and uncertainty as to
the use of supervised community treatment. It could also raise questions about the application of the
specific criteria for supervised community treatment in light of the principle.
I refer to the remarks of my noble friend Lord Soley and the noble Lord, Lord Patel, on nondiscrimination. The general laws on discrimination will apply to those who have functions under the
Act. Many laws come under the discrimination banner; they are detailed and complicated and
contain exceptions and qualifications. Practitioners are without question already subject to these
laws. The amendment lists four laws, and states that people should have regard to the principles in
those laws. Interestingly, none of those laws has explicit principles. The principles in those laws, as
in the Mental Health Act 1983, are inherent in the provisions. Not all the provisions of the laws the
amendment mentions will apply or have relevance to a person carrying out functions under the
Mental Health Act. For instance, some of them relate to employment issues. Therefore, the
- 13 -
amendment might cause confusion whether the practitioner should adhere to all the principles in
each of those Acts, or only those that would normally apply.
We do not take issue with the amendment in principle but we are concerned about its practical
19 Feb 2007 : Column 899
effect and the confusion that it might cause. I have attempted to identify areas where that confusion
might arise.
The noble Baroness, Lady Barker, and the noble Earl, Lord Howe, referred to discussions that took
place. I want to respond to this debate as positively as possible and to meet noble Lords’ concerns. I
recognise that they wish to see principles placed in the Bill. I suggest that that can be done in a way
that will not cause the confusion that this amendment and the one tabled in Committee might cause.
Therefore, I intend to introduce an amendment at Third Reading that will provide a requirement—I
stress that it will be a requirement—based on Section 118 of the 1983 Act, which relates to the code
of practice.
The amendment will require the Secretary of State and Welsh Ministers to include a statement of
principles in their respective codes. I stress that it will be a requirement on the Secretary of State so
to do. The amendment will also detail the key principles that the code will be expected to follow. I
believe that that is a sensible way forward. It reflects the clear message that noble Lords and
practitioners have given that they wish to see principles in the Bill. By requiring the Secretary of
State to ensure that there are principles in the code of practice and to list in the Act the areas that the
principles might cover will produce a satisfactory outcome which will not confuse but rather clarify
the position. That outcome will acknowledge the point raised by the noble Earl, Lord Howe, right at
the beginning on the importance of values.
Lord Carlile of Berriew: My Lords, I apologise for interrupting the noble Lord but I hope that he
will further clarify the issues that I raised about certainty in the courts. Is it the noble Lord’s
understanding that the legislative device—I use that word in a neutral sense—that he suggests will
mean that courts reviewing decisions will regard the principles in the code of practice as having
equivalent status to similar principles in the Act?
Lord Hunt of Kings Heath: My Lords, that is not what I am saying. The role of the code of
practice is to guide practitioners in the implementation of the legislation. I do not believe that what I
have suggested would in any way inhibit the clarity of the message that will need to go to
practitioners. Putting the principles of the code in the Bill will meet the objectives expressed by
noble Lords.
Earl Howe: My Lords, this has been an extremely good debate. I begin by thanking the Minister
for his constructive approach to the powerful speeches made from all quarters of the House. My
noble friend Lady Carnegy and the noble Lords, Lord Carlile and Lord Ramsbotham, expressed
disappointment that the principles set out in the Committee amendment were not all carried over
into the amendment before us.
I readily concede that today’s amendment represents a compromise. That is not what I originally
sought but I am enough of a realist to know that you cannot get everything that you seek first time
around. However, in accepting the Minister’s offer to look at a government
19 Feb 2007 : Column 900
- 14 -
amendment at Third Reading, I hope that he will consider all the headings in the Committee
amendment, which are of great importance individually, I say again. He will recall that that
amendment was based very closely on the Scottish legislation, where apparently there is no problem
about possible conflict between the Act and the principles.
It is not appropriate for me to say more than that. I will, however, thank the Minister again for
having looked at this issue so carefully. I reserve judgment about the government amendment until I
have seen it. The point raised by the noble Lord, Lord Carlile, is extremely material in this context.
However, from the Minister’s description, I think that the formula he suggested will at least meet
one objective: the point made by the noble Lord, Lord Adebowale, who brought home to us the
importance of trust in the system on the part of those on the receiving end of compulsory detention.
I look forward to further discussions with the Minister between now and the next stage of the Bill. I
beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[End of Principles]
4.25 pm
Consideration of amendments on Report resumed.
Clause 2 [Learning disability]:
Lord Rix moved Amendment No. 2:
Clause 2 , page 2, leave out lines 13 and 14
19 Feb 2007 : Column 904
The noble Lord said: My Lords, before speaking to Amendment No. 2, on which I shall detain your
Lordships for a very short time, I should like to express my thanks to all those who sent their good
wishes for my speedy recovery—it is six weeks since I was able to attend your Lordships’ House—
and particularly to those who so ably took my place on the amendments in Committee, which I hope
brought forth government amendments that will be acceptable as we go through the Report stage.
I pay tribute also to the two Ministers concerned—the noble Lord, Lord Hunt of Kings Heath, and
the noble Baroness, Lady Ashton of Upholland—who have extended the greatest possible courtesy
by telephoning me and keeping me in communication with exactly what was happening in the
House of Lords. I am extremely grateful to them. I say as a dispassionate outsider for the past six
weeks, reading the goings-on in your Lordships' House, that I can only hope that, later this week,
the other place votes for the right selection when it comes to the reform of your Lordships’ House.
The quality of the debates and of the amendments put forward has been extraordinary.
Amendment No. 2 would delete the words,
“unless that disability is associated with abnormally aggressive or seriously irresponsible
conduct on his part”.
I believe that those words unfairly pick on people who may well not have a mental disorder but who
may well be frustrated for other reasons. I have previously put this case to the Minister, and I know
that the president of the Royal College of Psychiatrists, Professor Sheila Hollins, has put exactly the
- 15 -
same case. Unfortunately, the Government seem unable to accept my amendment. There seems
little point in my pressing it to a Division because I know perfectly well that, even if I were to win,
it would be overturned in the other place.
I can therefore only hope that the Government will offer me a lifeline in the code of practice.
Having listened to the Government’s response on the first amendment, I hope that the code of
practice will be strengthened by the attachment of principles to the Bill. The codes of practice
therefore become very important. They currently do not apply to this caveat in the Bill. I can only
hope that the Minister will give me an assurance that something will be done about this in the near
future. I beg to move.
Baroness Royall of Blaisdon: My Lords, I am delighted to see the noble Lord, Lord Rix, in his
place once more. We missed him. I am also pleased and privileged to have an opportunity to pay
tribute to him. He is an extraordinary man: from coal mine to Mencap, he has over so many years
made a real difference to the lives of many people, especially those with learning disabilities. I
know that I speak for the whole House when I say that I hope he will continue to campaign,
legislate and bring about change for many years to come.
We fully acknowledge that many people who have a learning disability can have difficulties in
communicating the nature of their health problems, and in particular that some of them may seek to
draw
19 Feb 2007 : Column 905
attention to physical health problems by displaying aggressive or irresponsible behaviour that could
be mistaken for mental disorders. Identifying physical health problems is an important issue for
anyone with a mental disorder. For everyone who may be assessed for possible mental health
problems, it is crucial to establish whether their behavioural presentation is in fact a reflection of
underlying physical health problems. But we recognise, of course, that the risk of diagnostic
overshadowing is especially high in the cases of people with learning disabilities.
That is why, since the noble Lord graciously withdrew his amendment following the debate in
Committee last month, we have been looking seriously at the issues he raised to see what more we
could do to address them. As he kindly acknowledged, we have engaged in active dialogue with
him in the intervening period and made strenuous efforts to identify ways to address at least some
of his concerns. We have considered a number of legislative options to see whether we could meet
those concerns about inadvertent detention without inadvertently taking away the option of
detention for those for whom it is necessary and appropriate. As ever, however, we ran up against
the disadvantage of trying to use legislation to tackle a problem of practice rather than of law. We
have had to conclude, therefore, that these issues would be best addressed in the code of practice—
that lifeline referred to by the noble Lord.
4.30 pm
It is vitally important to identify any underlying physical health problems in a person with a
learning disability and to understand how it may be affecting their behaviour. Some may need to be
helped only on their mental disorder. Other people with learning disabilities may need to be helped
under the Act for their mental disorder while their underlying physical health problems are sorted
out. I remind noble Lords that we are trying to frame legislation in such a way as to give mental
health professionals the ability to do what needs to be done for the benefit of each mentally
disordered person without imposing arbitrary restrictions. We consider that the learning disability
- 16 -
qualification, as currently drafted in the Bill, allows clinicians this flexibility while still protecting
patients’ rights.
Nevertheless, we acknowledge that there could be more practical guidance on the types of issues
that can arise, such as proper diagnosis of an underlying physical disorder. Consequently, when we
debated the amendment in Committee, we undertook to look at ways of strengthening the code of
practice to take account of the concerns raised. I confirm to the noble Lord that we remain
committed to that course of action. Indeed, we would be very happy if he and Mencap—the
excellent charity of which he is the president—would be willing to take a proactive role in helping
us to improve the revised code of practice for England as it relates to people with learning
disabilities. And I do not mean just the section entitled “Learning Disabilities” but the whole code
as it might be applied to people with learning disabilities.
19 Feb 2007 : Column 906
Clinicians must have cogent reasons for any decision to treat an individual in a way that departs
from the code of practice. It is more than mere guidance. I hope very much that the noble Lord,
Lord Rix, will feel able to accept this invitation on both his own and Mencap’s behalf. In doing so, I
hope that he will see fit to withdraw the amendment.
Lord Rix: My Lords, what can I say after that? It is a most generous offer—one which I happily
accept. I am overwhelmed by its scope. The fact that Mencap and I can be involved in the code of
practice is a tremendous asset for us. I am extremely grateful to the Government for considering the
amendment so sympathetically. I have the greatest pleasure in withdrawing my amendment, and
hope that your Lordships will forgive me if I go home and put my feet up. I beg leave to withdraw
the amendment.
Amendment, by leave, withdrawn.
[Detention for sexual orientation, beliefs, disorderly conduct or
drug use & vote]
Clause 3 [Changes to exclusions from operation of 1983 Act]:
Earl Howe moved Amendment No. 3:
Clause 3 , page 2, leave out lines 25 and 26 and insert—
““(3) For the purposes of subsection (2) above, a person shall not be considered to have a
mental disorder as defined in this section solely on the grounds of—
(a) his substance misuse (including dependence upon, or use of, alcohol or drugs); (b) his sexual
identity or orientation; (c) his commission, or likely commission, of illegal or disorderly acts; (d)
his cultural, religious or political beliefs.””
The noble Earl said: My Lords, we return to an issue which we debated in Committee but did not
resolve—the question of whether, in redefining what is meant by the term “mental disorder”, the
Bill should at the same time draw clear boundaries around that definition by making clear what it
does not encompass. We on these Benches regard this matter as particularly important.
- 17 -
When the Richardson committee reported in 1999, it recommended that a new Mental Health Act
should contain a broad definition of “mental disorder” to replace the detailed diagnostic categories
in the 1983 Act, and that this broad definition needed to be balanced by some exclusions. The Bill
contains a new broad definition but no exclusions other than dependence on alcohol or drugs.
The broad definition has two consequences. The first is that it covers all the diagnoses listed in the
WHO International Classification of Diseases 10—ICD-10—some of which are completely
inappropriate for compulsory powers. Secondly, it potentially covers almost any significant
deviation from a normal condition of the mind, however temporary that deviation may be. There is
nothing in the Act or the Bill that confines the definition to the conditions listed in ICD-10. There
needs to be some limit to guard against the inappropriate use of the clinician’s power of detention.
Without such limits, the powers are capable of being used, even in a well-intentioned way, as a
form of social control.
19 Feb 2007 : Column 907
Any decision by a clinician to detain a patient against his will always and inevitably rests on the
clinician’s discretion. In practice this discretion is wide, and because of that it is not acceptable for
the law to be expressed in such a way as to allow the clinician total freedom to interpret its meaning
in any fashion he or she chooses. Clinicians themselves acknowledge this. They support the
proposition that there should be clear limits on their powers.
From the clinician’s point of view, the exclusions need to be there so that the right questions can be
asked. Let us imagine a doctor faced with someone who is distressed, disturbed and behaving in a
strange way. What lies behind his behaviour? Is it misuse of alcohol or drugs? Does the person have
odd or eccentric beliefs that cause him to behave in a strange manner? Does he have an
uncontrolled temper? Would his behaviour be seen as normal, or at least as comprehensible, in a
different culture? It is only by asking questions of this sort that doctors can avoid arriving at wrong
conclusions. If the questions are not asked, the danger is that all sorts of people who are not
mentally disordered in the true sense will be swept up by the use of the powers in the Mental Health
Act.
The noble Baroness, Lady Murphy, spoke powerfully in Committee about people who are social
misfits: people on drugs, religious fanatics, or people with odd sexual urges. They are difficult to
help, but any well-intentioned clinician naturally wants to help such people. The law should make
the position clear. It is not enough for a person to be odd, eccentric or a social misfit; the only legal
grounds for compulsory detention are an underlying mental health diagnosis. When confronted by
an oddball patient, the clinician has a duty to make sure that his decision to detain is not based on
spurious reasons.
In Committee, the Government argued that exclusions in the Act would create uncertainty and that
they would be arbitrary. I do not agree, and nor does the Royal College of Psychiatrists, the British
Psychological Society, the British Association of Social Workers and the Royal College of Nursing,
to name but a few members of the Mental Health Alliance. Exclusions serve a significant purpose,
one that other legal jurisdictions in the English-speaking world have acknowledged. The equivalent
mental health laws in Ireland, Scotland, New South Wales, Victoria and New Zealand contain
exclusions on a basis similar to that set out in this amendment.
To be specific about it, I do not think that it is acceptable or right for the law to allow someone who
is drunk or high on drugs to be compulsorily detained for that reason alone. But if the Government
have their way, he could be—misuse of drugs or alcohol is classified as a mental disorder under
ICD-10. A single episode of misuse could fall within that. Given that the Bill excludes from
- 18 -
“mental disorder” the more serious forms of alcohol and drug misuse, it is difficult to see what
argument the Government have for excluding the less serious forms. The draft code of practice
explicitly mentions acute intoxication as a possible ground for the use of powers under the Act.
Absolutely no justification is offered for that.
19 Feb 2007 : Column 908
Equally, the proposition that someone who exhibits gender dysphoria, transsexualism or a sexual
fetish should be eligible for compulsory detention is completely unacceptable. Yet these conditions
are classified as mental disorders under ICD-10. I and many others would argue that they are not
true mental disorders. Nor is behaving in a manner that is considered socially unacceptable or
expressing a way-out political opinion. This country is not Soviet Russia and is in no danger of
being like Soviet Russia. But the effect of not having exclusions along the lines set out in
paragraphs (c) and (d) of the amendment is that it will further confuse in the public mind the role of
psychiatry and mental health services.
Lord Soley: My Lords, will the noble Earl clarify how paragraph (c) of the amendment would work
in the case of a compulsive disorder where the nature of the compulsion is likely to result in a
criminal or disorder offence?
Earl Howe: My Lords, the key test is whether there is an underlying mental disorder. That may
exhibit itself in any of the behaviours listed in the amendment. The question which the clinician has
to ask himself or herself is whether there is an underlying mental disorder. They should not allow
the issue to be clouded by extraneous behaviour that has nothing to do with the mental disorder.
As I was saying, the effect of not having exclusions along the lines set out in paragraphs (c) and (d)
of the amendment is that it will confuse the role of psychiatry in the public mind; moving them, as
far as perceptions go, from the proper aim of assessment and treatment of mental disorder into the
area of social control. We have often spoken about the fears and apprehensions of the black and
ethnic minority communities. Disproportionately high numbers of people from B and E
backgrounds are diagnosed with major mental illness and detained. To the extent that the Bill may
serve to add to the current negative view of mental health services among those communities, it will
have failed. That point was very powerfully made by the noble Lord, Lord Adebowale, earlier.
There is a real worry that stereotyping and misunderstanding of black people may lead to
unnecessary and unjustified use of compulsion. That worry is not imaginary; it is based on current
practice under the 1983 Act. Extensive literature confirms that racism can apply in mental health
practice. It is even more likely to happen under the broader definition of “mental disorder”.
Psychiatrists acknowledge how difficult it is to distinguish symptoms of genuine mental disorder
such as hallucinations from beliefs that to a particular individual may be culturally or religiously
appropriate, such as belief in spirits or in witchcraft. Without an exclusion of the kind I have
proposed, we will see an increase in the degree to which diagnosis of mental disorder depends on
discriminatory assumptions and on the subjective judgment of clinicians.
That is the rationale for the amendment. I believe that the arguments which the Government have
put forward for resisting it are wrong. I therefore ask the House to give it full support. I beg to
move.
19 Feb 2007 : Column 909
4.45 pm
- 19 -
Baroness Murphy: My Lords, briefly, I support the noble Earl, Lord Howe, on the amendment. I
do not want to repeat what I said in Committee, but many of our discussions throughout the passage
of the Bill have been intended to ensure that people who are really in need of care and treatment
have it made available to them. All of us have that concern, but we have approached it in different
ways. In refusing the exclusions, the Government are misguidedly trying to draw into mental health
services a much broader range of people who at present would be excluded and whom, mostly, we
would want to be excluded.
I remember the wonderful tease of the noble Lord, Lord Alderdice, over the auto-erotic
strangulation case, which somewhat confused the noble Baroness, Lady Royall, at the time. That
was a wonderful example of how very many sexual perversions and fetishisms there are. We know
that there are eccentricities that we do not want included in treatment where there is no defined
mental disorder. I take the point made by the noble Lord, Lord Soley, that where there is a mental
disorder exhibited through an obsessional behaviour that is criminal or distressing, that ought to be
included, but it is perfectly possible to make that distinction.
Most common law jurisdictions across the developed world have such exclusions, for very good
reason. We have forgotten how very recently it is that people complained that too many people
were drawn into mental health legislation through an overbroad interpretation of the Act. That is
why we have the exclusions: to define exactly whom we are trying to detain in this way to help
them. I strongly support the amendment.
The Lord Bishop of Coventry: My Lords, the House will no doubt be very familiar with the
writings of a 6th century monk, a Syrian named Dionysius the pseudo-Areopagite. He made his
place in church history by developing what was known as the apophatic tradition. In case one or
two of your Lordships are not entirely familiar with that, let me explain it very briefly. The
apophatic tradition says that as well as saying positive things about the nature of God, it is not only
possible but desirable to use the negative. As well as saying, “God is love, God is light”, one must
also say: “Because God cannot be seen, He is invisible; because He cannot be touched, He is
intangible; because He cannot be fully understood, He is incomprehensible”. I suggest that the
apophatic tradition is worthy of consideration in relation to the Bill.
The noble Earl, Lord Howe, has already made the point that the purpose of the amendment is to
make clear what is not included as well as what is included in the Bill. I am strongly in favour of the
amendment because its purpose is to reinstate and extend the exclusions. The point of exclusions
has always been to ensure that compulsory powers are used to assess and to treat genuine mental
disorder and not, in the words of the Church of England’s submission to the Joint Scrutiny
Committee, as a means of social control.
19 Feb 2007 : Column 910
The Government’s twofold argument—first, that most of the exclusions are unnecessary and,
secondly, that they might prevent people being brought under compulsion when that is
appropriate—seems rather curious. If the conditions and behaviour specified in the exclusions do
not constitute mental disorder, they could not prevent legitimate application of the criterion for
compulsion, but they could provide protection against inappropriate compulsion.
In view of the widespread concern about the detention of Afro-Caribbean men—I beg your
Lordships’ pardon, African-Caribbean men—it is particularly important that exclusion (d), the
criterion for cultural, religious and political beliefs, should apply. If the exclusions really are
unnecessary, no harm will be done by adding them to the Bill. However, there are many reasons for
- 20 -
thinking that, as a checklist, they will act as a significant safeguard of civil liberties in a climate of
anxiety about risk.
Baroness Barker: My Lords, I am sure that the Minister’s brief includes the apophatic tradition,
and that she will no doubt tell us about it. Mine did not, but then I have the noble Baroness, Lady
Neuberger, beside me, who tells me that the right reverend Prelate is absolutely right.
I shall briefly make three points that are not only important for our discussions but to be read
perhaps at another time and in a different place. In response to a similar amendment in Committee,
the Minister stated the Government’s belief that exclusions are,
“arbitrary obstacles to the use of compulsion”.—[Official Report, 8/1/07; col. 83.]
He also said that they would cause uncertainty. Many noble Lords will have been in meetings in
which Professor Appleby, the Government’s mental health adviser, has spoken about the need to
make this legislation inclusive. Memorably, in an all-party group meeting on 30 January, he said:
“Every exclusion is a person not receiving the treatment they need”.
It is beyond doubt that statements such as that are made with good intentions, but it is equally true
that those of us who disagree do so with good intentions. We on these Benches do not believe that
we should set up exclusions to deny people treatment; we believe that every exclusion is someone
not being wrongly subjected to mental health treatment. There may be people who are very
seriously disturbed and whose behaviour is dangerous, but the central question that must be asked,
and answered by practitioners, is whether that behaviour is to be treated using mental health
legislation. As the noble Earl, Lord Howe, said, we should not leave that decision solely to the
discretion of individual practitioners.
The noble Baroness, Lady Murphy, alluded to another important reason for accepting the
amendment when she talked about other jurisdictions. I shall focus on New Zealand, in which the
definition of mental illness is,
“an abnormal state of mind shown by delusions or disorders of mood, perception, volition or
cognition”.
The exclusions are,
19 Feb 2007 : Column 911
“a person’s political, religious, or cultural beliefs, or sexual preferences, or criminal or
delinquent behaviour, or substance abuse, or intellectual disability”.
That is important because, frequently in the past few months, the Government have cited the
example of New Zealand in their attempt to win support for their version of community treatment
orders. In New Zealand, however, one must have gone through those exclusions and cleared those
hurdles to be brought under mental health legislation at all. The Government, or their advisers, have
therefore been presenting two things as the same. They are, however, radically different because
they happen in a completely different context. That is why the amendment is of huge importance.
We are talking about health and compulsory health treatment. We should confine it to the many,
many thousands of people who we know need it and who cannot get it; we should not be including
people whose problems are nothing to do with mental health.
- 21 -
Lord Owen: My Lords, we can fairly claim that this issue is a question of principle, and a
substantial one at that. It is and has been for many years necessary to make a clear distinction
between the roles of medicine, particularly for psychiatrists, and criminal justice. Few would deny
that psychiatrists have to deal with problems closely related to criminality and therefore to criminal
justice, but they are inexorably being drawn across a threshold which I think it is extremely
important to establish. In the background to this legislation, what people outside this House have
used as a justification for it gives reasonable cause for concern. There seems to be a feeling that
some of the acute social problems facing society can be handled by psychiatrists and compulsory
orders. That is a very dangerous path for this House to allow any government to move along.
The wording of the amendment is modest. It makes it clear that,
“a person shall not be considered to have a mental disorder as defined in this section solely
on the grounds of”.
It does not exclude people who are alcoholics or taking drugs; it does not exclude people of
different sexual identity or orientation; it does not exclude illegal or disorderly acts, and it does not
exclude those with different cultural, religious or political beliefs, whether they believe in voodoo
or anything else. All these are real problems, but we must have a very clear line drawn in the sand:
doctors ought to be able to state that these are not medical disorders.
This amendment has to be linked with the next one which provides that doctors must have
reasonable grounds for thinking that they can alleviate the disorder. The word “likely” is probably
used correctly, but I do not want to stray into that amendment. However, taken together these two
amendments establish an important principle and safeguard the medical profession from being
drawn across a line into the field of criminal justice—that of policeman, probation officers and all
those involved in the maintenance of criminal justice. Of the need for psychiatrists and the medical
profession to help people in the implementation of criminal justice I have no doubt, but they should
not be dragged across this line. For me it is a line worth upholding as a matter of principle.
19 Feb 2007 : Column 912
Baroness Kennedy of The Shaws: My Lords, I too support this amendment. As noble Lords know,
I am a practitioner in the criminal courts and a great deal of my work takes place at the interface
between law and psychiatry, so I am conscious of what has happened in other common law
jurisdictions and have made a point of following closely the ways in which those jurisdictions have
dealt with the problems the Government are seeking to address in this legislation. One of the tests of
whether we are complying with the rule of law is that there should be clarity. Because of this,
jurisdictions such as New Zealand have decided that it is far better to set out the exclusions in
legislation. New Zealand felt that this was important because nothing focuses the minds of
professionals more than the fact that the law is there. That is its purpose. As others have said, it
would draw a line in the sand and focus minds, thus making sure that we do not transgress in any
way and so create a situation where those who should not be included in this legislation are
inappropriately brought under it. We would not run the risk of using a compulsory mental health
section in circumstances where it should not be used.
It is for this reason that so many of the professionals involved are rising to their feet. All I can say to
the Government is that while we are mindful of their good intentions, given that so much has been
said about the expertise present in this House, and how it has been lauded on that expertise, they
should listen to it.
- 22 -
Lord Adebowale: My Lords, I want to reiterate my support for the amendment and follow up on
some comments I made in Committee. I wish to speak briefly about some of the specifics, first in
relation to substance misuse. Here I should declare again an interest as chief executive of Turning
Point which provides services to more than 70,000 people with substance misuse challenges.
Unlike the Bill, this amendment specifies substance misuse as well as dependency. That is
important because both the misuse of and dependence on substances are included in international
classification systems used by psychiatrists such as ICD 10, mentioned by the noble Earl, Lord
Howe. Unless the legislation excludes both misuse and dependency, it could mean that people come
under mental health law inappropriately.
Let me give an example, as I am prone to do, from Turning Point’s case files. John is one of
Turning Point’s alcohol service users. He is a binge drinker but is not dependent on alcohol. He
does not have a concurrent mental health problem, but he reacts to times of personal and emotional
crisis by drinking. He will drink heavily for several days and nights before crashing. He then will
not drink alcohol for several months. John’s irrational behaviour could mean that he is
inappropriately sectioned under mental health law unless exclusions in the Bill also cover substance
misuse.
5 pm
Having explained the need for exclusions solely on the basis of misuse or dependence on alcohol or
drugs, I stress that if a person has a dual diagnosis of
19 Feb 2007 : Column 913
a mental disorder and a problem with misuse or dependence on alcohol or drugs, they should not be
excluded from treatment under the Act. As I highlighted in Committee, Turning Point’s experience
is that people with a so-called dual diagnosis have been turned away from mental health services in
the past, due to the current exclusions in the Bill, so it will be vital for any code of practice to
address the issue and address it properly.
Secondly, with regard to,
“cultural, religious or political beliefs”,
while I do not think it is the Government’s intention to use psychiatry as some kind of social
control, these things have a horrible habit of happening by accident and by fashion. I need not
repeat the substantial and undisputed evidence about high rates of detention among people of
African and Caribbean origin in comparison with those who are white British—we have discussed
that enough today. However, I repeat my firm belief that in the light of these statistics, it is
imperative for the Government to take proactive steps to address this imbalance. The amendment is
an important way of doing so. I would dearly like to believe that racial and other stereotypes do not
influence diagnosis, but the reality for many of the young black men I have spoken to—and it
usually is young black men—is very different. I urge the Government to accept the amendment.
Lord Alderdice: My Lords, I would like to speak about diagnosis, adverted to by my noble friend
Lady Barker and the noble Lord, Lord Owen. It is important to be clear what you are dealing with
medically, whether we are talking about physical or psychological medicine. That is not at all easy
at times.
- 23 -
One of the problems about this amending Bill is that it removes some of the rather crude and
simplistic but necessarily fundamental diagnostic entities. It sets to one side mental illness,
psychopathic disorder and mental impairment, referring to the global term, “mental disorder”. The
difficulty is that it removes the clarity that existed before, so it is necessary to insert some
exclusions in the Bill. Let me give two particulars which may be helpful.
The tendency is to make the judgment that someone has a personality disorder because of the way
they behave. It becomes a circular argument: if somebody behaves in such a way that they are antisocial, if they break the law and have difficulties with relationships, the term “personality disorder”
is frequently applied. There is no depth psychology to it; it is simply a matter of observing their
behaviour, and unfortunately the Bill helps to push us in that direction. The circular argument goes
like this: the person breaks the law, therefore they have a personality disorder; they have a
personality disorder because we know that they break the law; therefore, they are the province of
psychiatry and it is appropriate to detain them because they might well break the law again.
Psychiatry and mental health legislation are drawn into a circular argument. There is no depth
psychology to it; the diagnosis is made on the basis of behaviour that is a breach of the law.
19 Feb 2007 : Column 914
A similar problem arises with psychosis, particularly schizophrenic psychoses of various kinds. If a
person behaves strangely and speaks about strange ideas and thoughts, they may suffer from a
psychosis, but they may have a set of beliefs and a way of behaving that is simply alien, for cultural,
religious or, occasionally, political reasons, to the psychiatrist or the other person that they are
dealing with. The individual’s experience might get misconstrued as that of someone suffering from
a mental illness rather than someone with different cultural and religious experiences. Generally,
those groups are affected.
Again, if there is no depth appreciation, if a judgment is made simply on the basis of behaviour,
symptoms and effects, which are terms in the Bill, people will be drawn in; inevitably, it will be,
more largely, people from immigrant, black and minority-ethnic communities. If we are not going
to have circular diagnosis for personality disorders or discriminatory diagnosis on the psychosis
side, we must return to the Bill some kind of boundaries, exclusions or guidance, which have been
removed. I understand why that has been done, because what was removed was relatively simplistic
and, one might say, even a bit primitive and crude. Something needs to be put in its place to protect
us, to protect patients and to give guidance to those who are working in this field.
The Countess of Mar: My Lords, I, too, support the noble Earl, Lord Howe, in this amendment.
This category includes another group of people who are labelled as having a personality disorder
but are physically ill. They are people with ME. Over and over again, I hear about people with ME
being described as having “illness beliefs” or as suffering from psychosocial behavioural problems,
when they have from a physician a diagnosis of ME but psychiatrists disagree with the diagnosis.
Psychiatrists say that ME does not exist, and somehow social workers and psychiatrists gang up
together and get the person sectioned. More often than not, they come out of hospital much more ill
than when they went in.
What is particularly iniquitous—the Minister knows what I am talking about—is how children are
treated in this respect. We really need to protect those people. The fact that they think differently
from other people does not necessarily mean that they are mentally ill.
The other group of people affected includes the lady, whom I mentioned in Committee, locked up in
Pond Ward in the Central Middlesex Hospital because her beliefs about her children’s illness
- 24 -
differed from that of the social workers looking after the children. There was absolutely nothing
wrong with that lady; she should never have been locked up.
Lord Soley: My Lords, my noble friend Lady Kennedy put her finger on the key issue: whether it is
better to put something like this in the Bill or to rely on professional standards, codes of conduct
and the underlying general law of the country. I tend to prefer the latter, although I acknowledge my
noble friend Lady Kennedy’s point that other countries, for
19 Feb 2007 : Column 915
example New Zealand, put it in legislation without any great disadvantage. I understand the
argument in both directions, and I would not lose an enormous amount of sleep if it were in the Bill,
but there are some warnings about that, and they perhaps need to be spelt out.
Admitting someone to a psychiatric hospital on the basis of, for example, their religious or political
beliefs would be unlawful anyway, unless you could show an accompanying mental illness. The
intervention of the right reverend Prelate was appropriate, because some people go around these
days claiming to be the son of God and to have other such relationships with God. If we had applied
the same principle 2,000 years ago, history, and one or two other books, might have been written
slightly differently, so we always have to be aware of it. It would be difficult to compulsorily treat
on the basis of politics, culture or religion in the way that is feared without breaking the law, unless
you could show a clear mental illness.
I intervened in the speech of the noble Earl, Lord Howe, because I am concerned about people with
compulsive disorders who would fall under subsection (3)(c) of his amendment. The noble Earl and
others may remember the case of the Jewish woman who had survived the Nazi death camps. This
was a very long time ago, I have to concede—it was when I was still a probation officer—but it got
a certain amount of publicity at the time, not surprisingly. Like a number of people who came out of
that experience, she felt an inner guilt. She had attempted to resolve it in many ways, including
psychotherapy and so on, but in her later life it seemed to totally overtake her and she began to
shoplift compulsively—you could not describe it otherwise—and appeared in Hampstead court
almost daily. The court leant over backwards not to send people to prison but, after many offences
had been committed and every type of voluntary approach had been tried, it sent her to prison. If we
box ourselves in too much with these regulations we will at times make it inevitable that prisons—
as they did then and as they do now—take too many people who are in need of mental health
treatment rather than custodial sentences.
Another example involves alcohol addiction. I give it against the slight warning that I was chairman
of the Alcohol Education Centre in the 1970s, which was based at the Maudsley Hospital, and what
I say arises out of the work of some psychiatrists there. The argument used to me as chairman of
that organisation was that alcoholism should be treated as a mental illness, which was quite a
powerful argument at the time. I had my doubts about it but they persuaded me—this is where it
goes full circle—largely on the basis that the evidence was growing that acute addiction, whether to
alcohol or drugs or cigarettes for that matter, could be linked to activity in the brain which could
ultimately be treated. It is an interesting concept. I have gone back to the position that I held
originally, before the psychiatrists got to me, that you still have to rely on the person wanting to
take the treatment, which is an important aspect.
Again, there is a shady area in between. In one of my earlier speeches at Committee stage I talked
about the old mental health hospitals, referred to as “bins”
19 Feb 2007 : Column 916
- 25 -
at the time. Although it was totally inappropriate to hold so many people there as we did, we were
holding people who would now end up in prison—and, as we have heard, are held there
inappropriately—or who are adrift in the streets and need a safe place.
The Grass Arena, written by another ex-client of mine, John Healy, refers to the problems he had
when he was in between prison and treatment centres, a very difficult period. On one occasion he
was about to be discharged from a prison sentence at Pentonville on Christmas eve, having been
already sentenced to three months for a drunk and disorderly offence. The Ley Clinic, in Oxford,
was unable to take him before that and was not prepared to section him even though he at that stage
was asking to be sectioned. We did not section him; we got the court to impose another prison
sentence for an unpaid fine, which kept him in until the new year.
That is not the best way of dealing with these problems. Ultimately, I rely more on professional
judgments from all the professions involved—not only psychiatry, I stress. Part of the battle that
troubles me is that there are too many psychiatrists speaking for psychiatry and not enough people
speaking for the other professions involved. This is a grey area that will always be difficult, and
opinion is moving on whether alcoholism is a treatable mental illness.
I could live with at least three of the conditions in the amendment but I have to say to the noble
Earl, Lord Howe, that there is a danger that people will engage in certain types of compulsive
behaviour—shoplifting, for example—which, by definition, will inevitably be taken into account by
professionals, and in my view should be, if it is going to result in them going to prison. That is an
assessment you have to make. That is why I find it difficult to make an absolute judgment of the
type being assumed by this amendment. We must not make the mistake of assuming that including
lots of special principles and conditions in the Bill will necessarily solve the problem for people
who need treatment. It often pushes them on to the street or into prison. We have swung from the
position of the 1940s and 1950s, when we had far too many people in psychiatric hospitals, to
having a large section of people who need to be cared for, perhaps not in permanent care.
One of the reasons that John Healy wrote The Grass Arena was to explain his feelings and
circumstances. One of his problems was going into hostels. As the noble Lord, Lord Adebowale,
knows, it is difficult to find a hostel for someone who has a reputation for smashing up hostel staff
and hostels, where there is a relatively more flexible regime. Frankly, we are not offering that
person any real help and prison is not the answer either. Let us try to be flexible. Yes, the law must
be absolutely clear to avoid the extremes of treating people because they have some strong religious
or political belief or whatever, although I think that would be illegal anyway, but we must be very
careful. My noble friend Lady Kennedy may be right: we could treat people in the way that the New
Zealanders do—possibly things work well there. However, there is another side to the argument. It
is worth remembering some of these cases particularly
19 Feb 2007 : Column 917
where issues such as compulsion are involved. You need to think carefully before including items
such as paragraph (c) in this amendment.
5.15 pm
Baroness Royall of Blaisdon: My Lords, this has been an important debate on a key part of the
Bill—indeed, an issue of principle. This amendment is the same as the one we discussed in
Committee, and in many ways the arguments have been well rehearsed, although I have learnt an
enormous amount including about the apophatic tradition, about which I will read more. I must say
- 26 -
from the outset that it is absolutely not our intention to detain anyone except on the basis of their
mental disorder. We will do everything possible to ensure that no individual is subjected to mental
health treatment unless they have a mental disorder.
Much has been made in this debate and elsewhere of the idea that the Bill will widen—some have
said it will be much wider—the definition of mental disorder. The Joint Committee on Human
Rights referred in its recent report on the Bill to the,
“breadth of the new definition of mental disorder”,
and an argument was put forward that the widening of the definition must be matched by more
exclusions. The Government do not agree with that, but before turning to the amendment itself I
would like, if the House will allow me, to set out exactly what effect the Bill would have on the
definition of mental disorder. In doing so, I hope to demonstrate that the effect is not as great as is
sometimes thought.
Clause 1 simplifies, but does not change, the basic definition of mental disorder used in the Act. In
fact, the only real change to the scope of mental disorder in the Act generally flows from the
removal of the exclusion for sexual deviancy. In other words, for the purposes of detention for
assessment under Section 2 of the Act, and various other powers, that is the only change. I will
return in due course to the merits of that change.
A further effect of Clause 1 is that other provisions of the Act, largely those relating to detention for
medical treatment, guardianship and, in future, supervised community treatment, will not be limited
to the current categories of mental illness, mental impairment, severe mental impairment and
psychopathic disorder. These are legal, not clinical, categories and the boundaries of “mental
illness” are uncertain. That means that we cannot say precisely what will be covered by the relevant
provisions that is not covered now. Almost certainly, mental disturbance arising from brain injury in
adulthood will now be covered for the first time; likewise, personality disorders that do not fall
within the definition of “psychopathic disorder”. That might, for example, cover someone
suffering—and I do mean suffering—from a borderline personality disorder, with all the
relationship difficulties, feelings of emptiness and propensity to self-harm that go with it. Possibly,
too, the effect will be to widen the scope of the relevant provisions to include certain autistic
spectrum disorders; certainly, it will remove any uncertainty about their status. These are not
insignificant changes, but they do not amount
19 Feb 2007 : Column 918
to the significant widening of the definition of mental disorder that people sometimes ascribe to the
Bill.
It has been argued that the Bill allows individual clinicians to decide what a mental disorder is. It
does not. The reality is that psychiatry moves on. The European Court of Human Rights recognises
that in its refusal to state definitively what constitutes “unsoundness of mind” for the purposes of
the convention. Mental health legislation—perhaps inevitably, but certainly pragmatically—relies
on the clinical professions taking the lead in defining and classifying mental disorder. But that is not
to say that, Humpty Dumpty-like, mental disorder means whatever a clinician says it means. When
we talk of clinically recognised mental disorders, we mean disorders recognised as such by
clinicians at large. That does not necessarily mean exactly what is listed in the International
Classification of Diseases or the American Diagnostic and Statistics Manual. Those publications do
not purport to be the last word in what is a mental disorder, and they too get out of date, but they
offer a good starting point for assessing what is likely to be regarded clinically as a mental disorder.
- 27 -
The noble Lord, Lord Owen, and the noble Baroness, Lady Kennedy, suggested that a clear line
should be drawn for the medical profession. It is conceivable, I suppose, that some day a
Government might attempt to put in the legislation a detailed statement of what is and is not a
mental disorder. I doubt that it would be popular with the psychiatric world, but a Government
might be compelled to do so if it concluded that the profession was taking an approach that was
unsupportable in a democratic society. I do not think that we are anywhere near that position right
now.
I should also say something else about the context within which the question of exclusions should
be considered. There must, of course, be safeguards against improper use of the Act, but the
definition of mental disorder is by no means the only place, or indeed the most obvious place, to
look for such protections. There are already safeguards in the procedures for detention. No single
professional can have someone detained. The criteria for detention impose further strict limitations.
Then there are the many other external safeguards, both within the Act and beyond it. There is the
Mental Health Review Tribunal, together with the Mental Health Act Commission, and the merged
body which will take over its role in future. There are the clinical governance arrangements that all
mental health service providers must have. There is professional regulation and, above all, as the
noble Lord, Lord Soley, said in Committee, the rule of law.
Of course, those protections are not perfect, and not every professional attains the high standards of
the majority. Mistakes get made, even by the most conscientious of professionals. We must all,
collectively, work together to improve standards across the board; but I urge the House, in thinking
about this amendment, not to forget that there is an intricate and extensive network of safeguards
that goes far beyond what is achieved by refinements to the definition of mental disorder and
exclusions from it.
19 Feb 2007 : Column 919
The exclusions proposed in the amendment are of two types: those that would substantively limit
the disorders in respect of which the powers in the Act could be used to help and protect people;
and those which, in the words used by the noble Earl, Lord Howe, in Committee, are markers
designed to send signals about how the Act should, and should not, be used. Substance misuse is, I
think, in the former category. In my experience, the Government are often challenged to say why
their proposals represent an improvement. In this case, I feel justified in asking the same question of
the noble Lords in whose name this amendment stands. For the past quarter of a century, the Act
has excluded dependence but no other substance-related disorder, yet psychiatric hospitals are not
full of drunks sleeping it off or drug users being kept away from their dealers by nominal nursing
care. Why should anyone think that that will change as a result of the Bill? Why do noble Lords
want to exclude from the Act those people who are now properly detained because of a substance
use related disorder? If they do not want to do that, why none the less are they willing to take the
risk of it happening? As many noble Lords know far better than I—
Earl Howe: My Lords, I had difficulty following the noble Baroness because the Bill itself contains
an exclusion for substance dependence; therefore, the Government agree with me on that issue. I
find it difficult to understand why the noble Baroness argued against that position.
Baroness Royall of Blaisdon: I am not arguing against that position. I shall come back to that
matter shortly, if I may.
As many noble Lords know far better than I, there is a spectrum to acute intoxication just as with
many other mental disorders. No one is ever likely to be detained because they are mildly
depressed; major depression is a different matter entirely. Of course, no one is going to be detained
- 28 -
just for being drunk, but sometimes it makes good clinical sense to detain someone who is
profoundly intoxicated and hallucinating or suffering other psychotic symptoms which put them or
other people at risk. The symptoms may recede with the intoxication, which can sometimes take
days, or it may turn out that they are symptoms of another disorder.
The noble Lord, Lord Adebowale, said that he had experience of people with dual diagnosis—that
is, substance dependence and mental illness—being refused services because of current exclusions.
He gave an example of where exclusions are being misunderstood or misused to exclude people
from the help that they need.
On sexual identity and orientation, one significant change has been made to this amendment since
we debated it in Committee; namely, the change from “sexual behaviours” to “sexual identity or
orientation”. We continue to believe that an exclusion for sexual identity or sexual orientation in the
way that they are normally regarded—that is, heterosexuality, homosexuality
19 Feb 2007 : Column 920
and bisexuality—is simply redundant. Noble Lords are familiar with the arguments on that, so I
shall not repeat them.
The noble Countess, Lady Mar, referred to ME. That is an issue of diagnosis not definition. We
cannot use legislation to tell clinicians how they are to diagnose patients; that is a matter of
professional practice. If there are problems of poor practice, they must be tackled as such.
On criminal acts and cultural, religious and political beliefs, the remaining elements of the
amendment are there to send signals that the Act is not to be used to exert social control, that
criminal, antisocial or merely difficult behaviour is not, of itself, proof of mental disorder, and that
diagnosis must be based on patients as they are, which includes their cultural, religious and political
background, assumptions, values and beliefs. I simply cannot agree that people will be detained
because of their cultural, religious or political beliefs.
Those are sentiments with which the Government wholeheartedly agree and that are clearly set out
in the illustrative draft code of practice that we have issued. Indeed, the noble Lord, Lord
Adebowale, suggested that the code of practice should be strengthened in this and other areas. We
would certainly welcome his help in doing that. As my noble friend Lord Hunt of Kings Heath
wrote in his letter of 31 January to all noble Lords, difference is not to be equated with disorder.
We still disagree on whether the way to send out and emphasise these messages is to amend the Act
to purport to exclude these matters from the definition of mental disorder. The House is familiar
with our arguments in this area and I will not repeat them in detail. However, we are more than ever
confirmed in our view that otiose exclusions can achieve nothing except the risk that they will be
misapplied or interpreted in an unintended way.
Perhaps if I were a certain type of patient detained in a high-security hospital following a conviction
for a serious offence, I might be getting quite excited at the possibility that this House was seriously
considering adding the exclusion for criminal acts. Of course, I would realise that it was not
intended to lead to my discharge while I still needed treatment in hospital, but I would certainly be
thinking about ways in which I, and my lawyer, could try to persuade a tribunal that that is none the
less its legal effect. There may be few such patients, and one would hope they would not succeed.
However, I do not think that we should take that risk.
5.30 pm
- 29 -
It has also been argued that these exclusions would engender trust in the Act, but the Government
do not think that they would. I understand the need to engender confidence, especially among the
black and ethnic-minority community, but I do not see how people who do not trust professionals to
make the right decisions will have their minds changed by these declaratory exclusions when the
same people will have to apply them.
19 Feb 2007 : Column 921
It has been argued that the Government should accept this amendment as a sign of good faith and,
in particular, their commitment to eliminating discriminatory attitudes and practices within mental
health services. I note the comments made by the right reverend Prelate the Bishop of Coventry and
many other noble Lords. However, had the Government come forward with these exclusions and
said, “Look, here is proof of our commitment”, I wonder how readily others would have been
convinced. We will be, and we want to be, judged by the action we are taking, not least through our
Delivering Race Equality programme, and not by whether we agree to include some well meant but
otiose words in the Bill. The earlier debate on the elimination of discrimination in relation to
principles is very important in this regard. I hope that that may be dealt with at Third Reading.
Many noble Lords have contrasted the Government’s approach with that taken in Scotland, Ireland,
New Zealand and a number of other Commonwealth jurisdictions. It is not my place to comment on
the wisdom of approaches taken by other legislatures, although I caution against the assumption that
what works well in one legal system can automatically be transferred to another. Indeed, one does
not need to look long at legislation from other countries to see the immense, almost bewildering,
variety of ways in which legislatures have tried to define mental disorder or, as the case may be, the
types of mental disorder to which they wish their particular legal framework to apply.
The approach we have taken is one of simplicity. This is not because we necessarily take a different
view of the disorders that should potentially engage powers of compulsion, although on paraphilias
we take a different view from that of the Scottish Parliament. It truly is more the case that we are
wary of putting words in the Bill that are legally unnecessary, however much we agree with their
underlying sentiment.
I have listened carefully to the important debate this afternoon. I have reread the debate that we had
in Committee and have heard all the arguments put forward in the discussions which my noble
friend Lord Hunt has had in the past three weeks. The Government have listened to all the
arguments and fully agree that this legislation must not be used to wrongly subject any individual to
mental health treatment. However, in relation to substance misuse, sexual identity and sexual
orientation, we do not think that an exclusion is needed or that it is the right thing to do.
On the rest, while we agree with the objective, we do not agree with the proposed means of
achieving it. We do not believe it will deliver the benefits sought by its proponents and fear that it
will create a risk to the effective working of the Act, something which is best avoided. I would be
grateful if the noble Earl, Lord Howe, would reconsider his amendment.
Earl Howe: My Lords, I thank all noble Lords who have spoken in this debate. I have found every
contribution extremely enlightening and valuable. I
19 Feb 2007 : Column 922
also listened with great care to the Minister and thank her for her reply. Very sadly, it is clear that
this is one of those issues on which we are not going to agree.
- 30 -
I totally accept the Government’s honourable intentions in not wishing to subject to detention
anyone who does not have a mental disorder. The issue is whether Parliament, in common with
comparable legal jurisdictions, should delineate what should and should not fall within the scope of
the law.
I listened carefully to the noble Baroness’s exposition of the safeguards in the Act and the Bill but
still maintain that there is a clear value in the Act setting down clear markers about how Parliament
wishes the very broad definition of mental disorder to be interpreted in the field. If the Government
consider that some of the exclusions are legally otiose, I might in some cases be forced to agree
with them. However, the fact is that, to the extent that they may be otiose, that does not seem to
have caused problems in other jurisdictions in which similar provisions have been adopted. Indeed,
the noble Baroness was gracious enough to say that, in some instances, she did not disagree with the
sentiment behind those provisions.
To the noble Lord, Lord Soley, I simply say that I would not wish to deny people with obsessive
compulsive disorders access to therapeutic care, if that is what they need. The issue is whether such
people should be compelled into treatment, if there is no underlying mental health diagnosis. That is
what troubles me about the possibility of confusing the boundaries between what a mental disorder
is and is not.
I do not know how the balance of opinion in the House lies. All I can judge is that this afternoon’s
speeches have been heavily weighted towards the amendment and I take encouragement from that.
Therefore, I think that it is appropriate for me to test the opinion of the House.
5.37 pm
On Question, Whether the said amendment (No. 3) shall be agreed to?
Their Lordships divided: Contents, 216; Not-Contents, 128.
Division No. 1
CONTENTS
Addington, L.
Adebowale, L.
Alderdice, L.
Alliance, L.
Anelay of St Johns, B.
Astor, V.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Baker of Dorking, L.
Barker, B.
Best, L.
Blackwell, L.
Blaker, L.
Bonham-Carter of Yarnbury, B.
Boothroyd, B.
- 31 -
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Bruce-Lockhart, L.
Burnett, L.
Buscombe, B.
Caithness, E.
Campbell of Alloway, L.
Carlile of Berriew, L.
Carnegy of Lour, B.
Carrington, L.
Chadlington, L.
Chidgey, L.
19 Feb 2007 : Column 923
Clement-Jones, L.
Cobbold, L.
Colville of Culross, V.
Colwyn, L.
Cope of Berkeley, L. [Teller]
Cotter, L.
Courtown, E.
Coventry, Bp.
Cox, B.
Craig of Radley, L.
Craigavon, V.
Darcy de Knayth, B.
De Mauley, L.
Denham, L.
Dholakia, L.
D'Souza, B.
Dykes, L.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Falkland, V.
Fearn, L.
Feldman, L.
Ferrers, E.
Fookes, B.
Freeman, L.
Garden, L.
Gardner of Parkes, B.
Geddes, L.
Glasgow, E.
- 32 -
Glenarthur, L.
Glentoran, L.
Goodhart, L.
Goodlad, L.
Greaves, L.
Greengross, B.
Greenway, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Harris of Peckham, L.
Harris of Richmond, B. [Teller]
Haskins, L.
Hayhoe, L.
Henley, L.
Hodgson of Astley Abbotts, L.
Hogg, B.
Holme of Cheltenham, L.
Hooper, B.
Hooson, L.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hurd of Westwell, L.
Hylton, L.
Inglewood, L.
James of Holland Park, B.
Jay of Ewelme, L.
Jenkin of Roding, L.
Jones of Cheltenham, L.
Kennedy of The Shaws, B.
King of Bridgwater, L.
Kingsland, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Laidlaw, L.
Laing of Dunphail, L.
Lamont of Lerwick, L.
Lane of Horsell, L.
Leach of Fairford, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Lindsay, E.
Listowel, E.
Liverpool, E.
Luke, L.
Lyell, L.
Lyell of Markyate, L.
McAlpine of West Green, L.
McColl of Dulwich, L.
- 33 -
MacGregor of Pulham Market, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mancroft, L.
Mar, C.
Mar and Kellie, E.
Marland, L.
Marlesford, L.
Masham of Ilton, B.
Mawhinney, L.
Meacher, B.
Methuen, L.
Miller of Hendon, B.
Monson, L.
Montagu of Beaulieu, L.
Montrose, D.
Morris of Bolton, B.
Moser, L.
Moynihan, L.
Murphy, B.
Murton of Lindisfarne, L.
Naseby, L.
Neuberger, B.
Newton of Braintree, L.
Nicholson of Winterbourne, B.
Noakes, B.
Northbrook, L.
Northover, B.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Owen, L.
Palmer, L.
Palumbo, L.
Patel, L.
Patel of Bradford, L.
Pearson of Rannoch, L.
Perry of Southwark, B.
Quinton, L.
Ramsbotham, L.
Razzall, L.
Redesdale, L.
Rees, L.
Rennard, L.
Richardson of Calow, B.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Roper, L.
Rotherwick, L.
St. John of Bletso, L.
- 34 -
St John of Fawsley, L.
Sandberg, L.
Seccombe, B.
Selborne, E.
Selsdon, L.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shutt of Greetland, L.
Skelmersdale, L.
Smith of Clifton, L.
Steel of Aikwood, L.
Stern, B.
Stewartby, L.
19 Feb 2007 : Column 924
Stoddart of Swindon, L.
Strathclyde, L.
Taverne, L.
Taylor of Holbeach, L.
Tebbit, L.
Tenby, V.
Teverson, L.
Thatcher, B.
Thomas of Swynnerton, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Thomson of Monifieth, L.
Tonge, B.
Tordoff, L.
Trimble, L.
Trumpington, B.
Tugendhat, L.
Tyler, L.
Vallance of Tummel, L.
Verma, B.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Warnock, B.
Watson of Richmond, L.
Wedderburn of Charlton, L.
Wilcox, B.
Williamson of Horton, L.
Windlesham, L.
Wolfson, L.
NOT CONTENTS
- 35 -
Acton, L.
Adonis, L.
Alli, L.
Amos, B. [Lord President.]
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Bhattacharyya, L.
Billingham, B.
Bilston, L.
Blood, B.
Borrie, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Campbell-Savours, L.
Carter of Coles, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Corston, B.
Crawley, B.
Cunningham of Felling, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dubs, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. [Lord Chancellor.]
Falkender, B.
Farrington of Ribbleton, B.
Filkin, L.
Ford, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Fyfe of Fairfield, L.
Gale, B.
Golding, B.
Goldsmith, L.
Gould of Brookwood, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
- 36 -
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Kilclooney, L.
King of West Bromwich, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Leitch, L.
Lipsey, L.
Lofthouse of Pontefract, L.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Mason of Barnsley, L.
Mitchell, L.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Patel of Blackburn, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Quin, B.
Ramsay of Cartvale, B.
Rees-Mogg, L.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Rosser, L.
Rowlands, L.
- 37 -
Royall of Blaisdon, B.
Sawyer, L.
Simon, V.
Snape, L.
Soley, L.
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Temple-Morris, L.
Thomas of Macclesfield, L.
19 Feb 2007 : Column 925
Thornton, B.
Tomlinson, L.
Truscott, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Uddin, B.
Varley, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Whitaker, B.
Whitty, L.
Williams of Elvel, L.
Woolmer of Leeds, L.
Resolved in the affirmative, and amendment agreed to accordingly.
[End of Detention for sexual orientation, beliefs, disorderly
conduct or drug use & vote]
5.50 pm
[Treatability and care & vote]
Clause 5 [Replacement of “treatability” and “care” tests with appropriate treatment test]:
Lord Carlile of Berriew moved Amendment No. 4:
Clause 5, page 3, line 13, leave out from “is” to end of line 15 and insert “likely to alleviate
or prevent a deterioration in his condition.”
The noble Lord said: My Lords, in this group we are also considering Amendments Nos. 6 and 7
and government Amendments Nos. 8, 11 and 12.
- 38 -
I start with a reference to the government amendments—I hope that it will be taken as a generous
reference, not made grudgingly on this occasion. All of us who are involved with therapeutic
benefit, on which I shall say more in a moment, are grateful that the Government have taken a great
deal of time and trouble to consider the previous debates on this issue. I recognise that the
Government have attempted to meet the serious concerns expressed in the past not just by those of
us involved in the joint scrutiny committee’s deliberations but by many others around the House.
Having said that, I regret that the amendments proposed by the Government do not seem to go
anywhere near meeting the requirements which caused those concerns.
This group of amendments is about what has generally been called therapeutic benefit. There is a
principle here and, in my view, it is an important and ethical principle. As a matter of medical and
legal ethics and of professional ethics in the round, no professional person should be required to
provide a service to someone whose requirements do not come within their professional ethical
code of practice. Under the Bill as it stands, doctors and other clinicians—far from all clinicians are
qualified medical practitioners—are being asked to provide medical treatment in circumstances in
which such treatment is simply inappropriate. Therefore, I argue that clinicians are being asked to
do something unethical. Putting it crudely, some clinicians may find themselves in the position of
being asked to be, in reality, nothing more than turnkeys.
If it is the Government’s view that it is appropriate to introduce legislation which requires people to
be locked away from society because they are perceived to be dangerous but could not benefit
therapeutically, then I am sure that this House will consider any such proposed legislation on its
merits. It may achieve a fair passage and it may not. At least it would be honest, ethical legislation
in which the Government would set out their objective and we, the Members of this House—in, I
hope, the multi-partisan way that
19 Feb 2007 : Column 926
has applied to many of the deliberations on this Bill—would then consider such legislation.
After all the arguments that we have heard in the many debates on this Bill and its predecessors, it
remains my view that it is wrong for there to be compulsory detention in a hospital where there is
no therapeutic benefit or its equivalent, whatever words one uses to describe that concept. The
Government have put forward an amendment to require the purpose of any treatment under the Bill
to be,
“to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or
effects”.
There is an awful lot of the use of the word “or” in that sentence. I suggest that the Government
have been parsing the language. But if one parses the language that they have offered, one is left, if
at all, with a mere smidgeon of movement towards therapeutic benefit and no more.
The Government’s proposals stop short of requiring any likelihood of the person benefiting from
that treatment. Surely if one is taking someone into a hospital for treatment, the normal clinical
judgment is that there is a likelihood that there will be benefit from the treatment. It does not mean
that the clinician is saying that there will be a benefit from the treatment but that a clinical judgment
has been made that the detention in hospital is likely to provide some benefit.
We believe that the Government’s amendments, well intentioned though they are, still leave the
possibility of a person being detained simply for preventive purposes without any medical benefit.
We do not require people to be cured of their illness—we know that that is impossible in many
- 39 -
acute cases where there is mental disorder—but we believe that there should not be the range of
possibilities that the Government’s amendments offer. For example, if all that is required is an
alleviation of one of the effects of the condition, that could mean that a person suffering from
Tourette’s syndrome—a well known disorder sometimes manifested by the use of offensive
language—could be detained in hospital simply in order to alleviate their use of offensive language
in public places. Surely the Mental Health Act 1983 is not intended to deal with that kind of
situation, but the very wide range of the words in the Government’s amendments means that that
kind of situation could arise. It raises the possibility of clinicians being asked to incarcerate for very
long periods people whom society does not like. I do not believe that that is an ethical approach to
mental health law.
In my view, the amendments in this group that I and others propose provide a perfectly practicable
alternative that would not compromise public safety one jot. We invite the Minister to agree that
that is the case and to agree to reconsider his position in relation to the Government’s amendments.
I should be only too happy to withdraw the amendment if I felt that there were a real possibility of
the Government accepting that their approach has been just too tentative. I beg to move.
Earl Howe: My Lords, with this group of amendments we have arrived at perhaps the single most
critical issue in the whole Bill: the presence or absence of a
19 Feb 2007 : Column 927
test of therapeutic benefit. Since our very extensive debates in Committee, a number of us have had
the advantage of private discussions with the Minister, for which I, for one, am grateful. We also
now see before us some movement by the Government in the shape of their amendments grouped
here, which seek to define in the Bill the purpose of medical treatment. Without repeating the
powerful arguments put by the noble Lord, Lord Carlile, I want to add a few brief points of my own
in support of Amendments Nos. 4, 6 and 7.
6 pm
In Committee, I and others argued for the retention of the status quo in the 1983 Act—that is to say,
the retention of the treatability test as currently defined. The Government resisted that proposition
and argued instead for the appropriate treatment test contained in the Bill on the grounds that this
was better suited to dealing with the perceived problem of certain people with personality disorders
falling outside the scope of the law. I did not—and I do not—accept the Government’s premise that
a serious problem exists. I do not believe that they have produced any evidence for it beyond
anecdotal reports. However, the amendment to which I have added my name is designed to meet the
Government half way. It accepts the test of appropriate treatment and accepts that it should be the
availability of the treatment rather than anything more which matters for the purposes of the test.
But it also redefines appropriate treatment in the language of the 1983 Act so that the test of likely
therapeutic benefit is retained.
The advantage of that approach is twofold. It ensures that there is no possible argument by people
with a personality disorder who, after being detained, refuse to engage with their treatment and as a
result claim to be untreatable. It also retains in law a form of words that commands universal
understanding and whose legal meaning is clearly defined in case law. The Reid case of 1999
established that health benefit could comprise in certain circumstances no more than containment
within a therapeutic environment under supervision so long as there is likely to be some benefit to
the patient.
- 40 -
So the current test is very broad. Personality disorders are not excluded because they can now be
successfully treated. Let us be clear that the fact that there needs to be a likelihood of health benefit
is no barrier to detention. The underlying disorder does not need to be addressed. If, as the
Government propose, one does not have a test of likely therapeutic benefit, the consequence is
obvious. The noble Lord, Lord Carlile, has spelt that out. The legislation suddenly acquires a broad
reach because the concept of benefit to the patient is diluted almost to extinction, other than the very
nebulous benefit of being confined in a therapeutic environment. It was that formulation which was
heavily criticised by the joint scrutiny committee in 2004, and it has been criticised again only this
week by the Joint Committee on Human Rights. The JCHR said:
“The appropriateness test in relation to treatment without consent must address the issues of
medical necessity and the likelihood that the treatment will alleviate or prevent
deterioration”.
19 Feb 2007 : Column 928
That conclusion could not be more clear. In the committee’s view, not only does the test of likely
therapeutic benefit have to apply, it also has to be on the face of the Act. The inference to be drawn
is that without it, the Act could authorise detention, which in some cases would be profoundly
unethical. Yet it is not difficult to see that the Government have rejected this test precisely because
in their view it would exclude from compulsory detention a group of patients who are, in their
words, “treatment resistant”. Exactly who that phrase refers to is not at all clear. I hope that the
Minister will be able to tell us. I also hope that he can shed some light on the government
amendments.
I was initially pleased and excited by the amendments, as I saw them as importing something quite
significant. However, I am now in considerable doubt about that. While Amendment No. 12 defines
medical treatment as,
“treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder or
one or more of its symptoms”,
which sounds very much more in tune with the language of our own amendment, I am exceedingly
worried by the last two words of the amendment—“or effects”. The effect of someone’s mental
disorder may consist of alarm or affront on the part of the public because his behaviour has been
violent and disruptive. Treatment that has the purpose of alleviating that effect—and no more than
that—could consist of nothing more than locking the person up in a therapeutic surrounding away
from the public view. Making the effect of someone’s condition into a trigger for compulsory
detention creates a test that is wide open in its application. The wider and vaguer the test, the greater
the risk of exactly the thing that none of us wants—deterring the people who most need help from
seeking it. If the government amendments are accepted, we shall be right back to where we were
before, with a Bill whose wording seems guaranteed to excite the suspicion among some that it is
capable of being used as a means of social control.
I am truly sorry to have arrived at this conclusion as I had hoped for a meeting of minds. To reject
the government amendments because of one word seems harsh, but I shall do so until such time as
the Minister can dispel the fears that I now harbour. He may have a job on his hands to do that.
Meanwhile, I am clear that in line with the recommendation of the JCHR, the right and ethical thing
to do for the sake of both mental health patients and the public is to support the wording of
Amendment No. 4.
- 41 -
Lord Soley: My Lords, I shall have one more attempt, if I may, to try to persuade the House that
the Government are more right than wrong, although as I said when I last spoke on this subject, they
may not have gone far enough. We may need clearer legislation.
I understand fully the position of the noble Lord, Lord Carlile, and I respect it. He feels very
strongly on the principle of the issue and has a very good track record both on civil rights and on
understanding their context in society. I want simply to try to balance the arguments for and against.
A perennial problem in
19 Feb 2007 : Column 929
mental health issues is that because we do not have as clear a definition as we would like,
particularly on personality disorder, we move around trying to find the right position. Over time, the
only thing about which we can be certain is that we have got it wrong some of the time and have
sought to adjust it. On balance, of course, we tend to make some quite good decisions, too.
I agree with a comment in one of the letters that the Minister sent to Members of the Committee—
that personality disorder is a definition of exclusion in too many cases. It excludes people from
treatment. I therefore say straight away that the position of the noble Lord, Lord Carlile, and those
who support his position is that the Bill as currently presented risks creating a situation in which
people will be treated inappropriately. In a previous debate, the noble Lord, Lord Winston, gave an
example of a case where inappropriate action was taken. It was a good example, and that does
happen. Let me be clear: I am not saying that there is not a danger of that.
I ask the supporters of the amendment to take into account the other side of that equation—that
many people with personality disorders who could be treated are at the moment not being treated.
They are not being treated not only because no facilities are available; too often they are not being
treated because the phrase “they are not treatable” is used. I am not citing only the examples that I
gave when I last spoke on this issue. I do not call in evidence my previous experience as a probation
officer 30-odd years ago, but I do cite the experience of many Members of Parliament who have to
deal with difficult cases in which they receive letters from health authorities saying, “Sorry—we are
not prepared to treat”. Yet everybody knows that a treatment is available for those people.
Those supporting the amendment are very strong on the patient’s right not to be treated and pretty
strong on doctors’ rights not to treat people if they do not want to, but they are very weak on
treating those who need treatment. They are playing into a situation that has troubled the mental
health field for far too long, whereby a dustbin label is put on someone—the original label was
psychopathy, but it is now personality disorder—saying that they cannot get better and are
untreatable, so nothing is done about it. In reality, treatments are now available. As I said earlier, I
am sometimes troubled that we pay too little attention in these debates to other treatments available
from psychologists. Psychologists often, although not always, have a longer period of training than
many psychiatrists. It is important to get the balance right. The noble Lord shakes his head. There
are examples of psychiatrists having shorter training periods than psychologists. It is not a crucial
argument because we know that there are no absolutes in any of this. We are dealing with
behaviour.
As for the definitional problem, the fact is that mental illness exists. It can be shown in an
individual standing alone in certain circumstances. Much mental illness, however, takes place in a
social setting and comes to our attention only because of its impact on society. That cannot be
ignored. As the Government
19 Feb 2007 : Column 930
- 42 -
and noble Lords have rightly said, you should not treat a person for a mental illness simply because
of something that is happening in society unless it can also be shown that there is a problem for the
person. But many cases of personality disorder, particularly when the impact is felt in the local
community, are distressing for the individual, too. They might not express it by saying “I am
distressed” when they are causing amazing problems for those around them or attacking people in
the street or whatever. They may be very defensive about what they are doing and claim to be
perfectly rational, but that happens also with other aspects of mental illness. Personality disorder is
not the only situation where the person denies an illness or condition that could be treated, to put it
more appropriately. I accept that there is a problem with calling personality disorder an illness, but I
do not accept that there is a problem with saying that personality disorder can be treated. It might
not be cured in the full sense of the term, although even that could be arguable, but the situation
could certainly be alleviated.
When I last spoke on this I gave a couple of examples of the impact on the community, which we
cannot ignore. The impact, particularly in stressed, inner-city areas, comes to the attention of
Members of Parliament because the person’s behaviour becomes so extreme that others are
frightened by it—and often rightly frightened; it is not imaginary. People may find the behaviour so
disturbing that they try to remove themselves from the setting although they can see, and will often
say, that the person concerned is “mad”. They use the term in the conventional way that society
uses it. They express total amazement when they are shown a letter from the health authority saying
that the person has an “untreatable personality disorder”. They see the impact of the personality
disorder. If the individual lived on a desert island or in the middle of nowhere, the behaviour would
probably not be noticed. But that does not mean that the individual is not a distressed person who
requires treatment. The social and community aspect is important.
Debates in this place are good because they are so often fed by experts with expert knowledge. But
one of the advantages that the House of Commons has over the House of Lords, not always having
that expert knowledge and having other agendas as well, is that it picks up this sort of issue on the
street. The other week I gave those examples because they are real cases causing real distress to
people who are not being treated, as well as to the community. I say to those who support the
amendment that my argument essentially is that the other side of the patient’s right to refuse
treatment and the doctor’s rights to refuse to get involved with difficult cases such as personality
disorder is that those who are not being treated but could be treated, should be treated. There is an
element of principle there.
6.15 pm
Personality disorder has for far too long been used as a means of excluding people from treatment
and ignoring the impact on the community. We then get horrific headlines in the tabloids about a
person who
19 Feb 2007 : Column 931
has killed someone after being turned away from a hospital because they were labelled as
untreatable. I have had plenty of battles with the press generally and with the tabloids in particular
about how they present stories, including stories on mental health. When I presented my Bill in the
House of Commons 10 or 15 years ago on the freedom and responsibilities of the press, we took
evidence from, among others, those who represent mental health patients, because of the way in
which those patients were presented in the press. But however bad those stories are, if we fall into
the trap of saying “Oh, we must just ignore the press on this,” we also end up ignoring the important
reality of the underlying story for those who are affected by it. We cannot afford to do that. That is
- 43 -
the difference between being an MP and a Member of the House of Lords—as an MP you pick up
these issues on the street. It is there; it is not imaginary.
Finally, I ask the Government to think hard about another issue. Shortly after I came to this place I
proposed that the two Houses should consider a reform to enable the two Houses to conduct postlegislative scrutiny of Acts. We are now some way towards that. I have been arguing for some time
that the Lords could play a premier role in that task, because noble Lords would be very good at
looking how legislation is working. If, as I hope, that becomes possible in the not-too-distant future,
I hope that my noble friend on the Front Bench will volunteer this Bill for post-legislative scrutiny.
I think that the Bill will work well on balance although there are one or two difficult areas where we
may have to revisit it. I may be proved wrong and there will be cases where people are treated
inappropriately, and that should trouble us; but perhaps those who take the opposite view will be
proved wrong and the Bill will be shown as too weak in insisting that those who need treatment
should get it. That is necessary not just for them but for the community, always on the
understanding—the critical base point—that the treatment must be a hopeful concept for the
individual who is in distress.
Baroness Murphy: My Lords, I am extremely grateful for the intervention of the noble Lord, Lord
Soley, because he appears to have made a case for the amendment. People with serious personality
disorders can be treated and should have access to treatment and the wide range of facilities
available to them. The whole point of the amendment is that everybody detained in hospital should
have appropriate treatment made available to them, treating their symptoms and signs of disorder.
That is, after all, the therapeutic object of admitting all patients to all hospitals.
We cannot succeed in instantly curing everybody—we all know that; it is the same in every branch
of medicine—but we can certainly have a go. That is the therapeutic intention, and there is a
determination that we should not move away from it. I say to the noble Lord, Lord Soley, that we
do not want balance on this point. Having read through the Government’s amendment, I was
initially cheered because I thought most issues had been addressed. In fact, the more you look at the
wording, the more you
19 Feb 2007 : Column 932
realise that it was a rather mean-spirited response to the problem that we were trying to address. We
must have absolute clarity on this, which is why we must support the amendment.
Lord Alderdice: My Lords, Amendment No. 12 demonstrates how the Government are broadening
the field in this legislation in respect of mental disorder and medical treatment. In regard to the
problems with which the legislation is trying to deal, the field has been broadened beyond the effect
on the person himself. Psychiatrists, psychologists and other healthcare professionals are being
asked to address the problems of society, which were set out by the noble Lord, Lord Soley.
The legislation is not intended to deal with people who suffer from particular kinds of personality
disorder, such as borderline personality disorder, to which the noble Baroness, Lady Royall of
Blaisdon, referred—that term has come into psychiatry relatively recently; that is, in the past 25 to
30 years. It is not a question of whether treatment is available; treatment is available on the basis of
whether resources are available, not on the basis of whether there is a Mental Health Act. The Act is
there for the compulsion of patients.
The kind of personality disorder being adverted to is not where a person has a conflict inside
himself, is deeply troubled and wants help; it is where a person does not have a conflict inside
- 44 -
himself but has a conflict with society, does not seek treatment because he is not aware of any
problem and therefore does not try to deal with it, but other people around him suffer from the
effects. The criminal law is there to deal with him if he breaks the law and the contract each of us
has as a citizen with the rest of the community. That is perfectly appropriate, but what is not
appropriate is to provide in a Mental Health Act that the effects of a person’s actions on other
people should be the reason for the treatment meted out to him. It would not be treatment through
medication because the only medication that would be of any value would dope him to the point
that he did not know what was going on but would not have any therapeutic benefit.
The noble Earl, Lord Howe, is right that the key words in Amendment No. 12 are the last two: “or
effects”. Effects on whom? The effects on the person himself or the effects on society? In other
words, if the person’s behaviour does not trouble him, but troubles the rest of society, it should be
dealt with not under the criminal law but under mental health legislation, and doctors, psychologists
and nurses should cope with it. That is the problem. That is why Amendment No. 7 refers to
preventing,
“a deterioration in his condition”.
The key question is whether we are asking psychiatrists, psychologists and nurses to deal with
society’s problems or to deal with the problems that patients have inside themselves that cause them
difficulties. That is their role. They have a role, but it is not primarily the role of healthcare
professionals to be social policemen.
Baroness Meacher: My Lords, I welcome almost all of the Government’s amendment, but I am
concerned about the inclusion of the words “or effects”. They
19 Feb 2007 : Column 933
seem to leave the door wide open to achieving the objective of the original clause of the Bill; that is,
to expect doctors to agree to the detention of people who do not have a treatable disorder or who
have not committed any crime. Will the Minister assure the House that that is not his intention? If it
is not, perhaps he will agree to a very minor adjustment to his amendment. One way forward would
be the deletion of “or effects”, which would go a considerable way in the direction that we all wish
to go, ensuring that doctors were left to treat people who have an illness and who are treatable. The
other way forward would be to add “upon him” after “or effects”, making clear that if there are
undesirable effects upon the individual, there may be some merit in treating him. Either adjustment
to Amendment No. 12 would leave me not wishing to vote against the Government. However, in
the absence of that, this amendment does not give me the assurance that I hoped it would.
Lord Ramsbotham: My Lords, I am glad that the noble Lord, Lord Alderdice, mentioned
resources because I wonder whether a regulatory impact assessment has been made of this proposal.
There are not enough resources to cope with people who have been clinically assessed as needing
treatment, and now we are proposing to put into an overstretched system people who have not been
assessed and for whom distinguished clinicians feel that the tension of that kind of environment is
not appropriate. I would be grateful if the Minister could say what the regulatory impact assessment
was of practical resources to bring about what the Government’s amendments propose.
Lord Turnberg: My Lords, the words “or effects” are critical. If they mean the effects on the
individual patient, it is important to have them because there is more to mental illness than simply
its symptoms; its effects on the individual are very important. However, if “or effects” means the
effects on society, the provision is less convincing. I would like to see “or effects” in the Bill
- 45 -
together with “on the individual patient”. If that is possible, it makes the Government’s amendment
entirely acceptable.
Lord Hunt of Kings Heath: My Lords, this has been a good debate. I was grateful to the noble
Lord, Lord Carlile, for his kind words at the beginning, although, sadly, he did not stop there. I
disagree with him about the Bill leading professionals towards unethical behaviour or being a code
of practice for a turnkey situation. That is not the Government’s intention, nor is it the intention of
the legislation. There have been constructive discussions between noble Lords on this matter. I
recognise how important our understanding is of the meaning of “appropriate treatment”. I hoped
that the amendment would commend itself to noble Lords. It is clear that there are issues,
particularly the meaning of “or effects”, that need to be teased out. If noble Lords do not press this
amendment to a vote, I intend to see whether there can be further discussions between now
19 Feb 2007 : Column 934
and Third Reading to clarify some of the uncertainties identified. I shall then speak to a number of
the specific comments made.
We want to ensure that detention and the other powers in the Act are only ever used for proper
healthcare purposes. The Bill is not, nor has it ever been, about detaining people without offering
them treatment. We wish to remove the treatability test, as discussed in Committee, because we
believe that it has led to a culture in which too many people, especially those with personality
disorders, are labelled untreatable. It is almost as though the treatability test has perversely been
taken as a signal that those people are assumed to be untreatable. I well understand that the
treatability test is not the sole cause of this problem, as a complex web of factors has come into
play, but I am satisfied from my discussions with many people in the profession that the test seems
to have been an important part of the problem in dealing with and treating—albeit a small
number—people who undoubtedly require support.
6.30 pm
There are clearly misapprehensions about the Government’s intent in removing the treatability test
and replacing it with the appropriate treatment test. One of the problems has been that many people
approach the appropriate treatment test as though it were the only criterion to be met before a
person could be detained. That is not the case. Before it even falls to be considered, a decision will
have been taken that the patient has a mental disorder which makes it appropriate for them to
receive medical treatment in hospital. If an application is being made under Section 3, not only must
it be appropriate that the patient receives such treatment, it must also be necessary for their health or
safety or the protection of others, and detention must be the only way of ensuring they get it.
Secondly, it has been suggested—and a number of noble Lords have said so tonight—that the
purpose of the appropriate treatment test is to permit the detention of people with personality
disorders who are dangerous but who have not committed any crime. Nothing could be further from
the truth. We hope that abolishing the treatability test will help change attitudes that have limited
the services available for people with personality disorders and excluded them from available
services. I understand the issue that the noble Lord, Lord Alderdice, raised about available
resources. I understand that there are a number of factors. This is not a simplistic approach, but we
think that the treatability test has inhibited the health service from providing the right care and
treatment to the group of people we are talking about. Nothing in the Bill, in case law or in the
Government's policy equates detention with medical treatment. Detaining someone is not treatment;
even detaining someone in hospital is not treatment.
- 46 -
It has been suggested that “appropriateness” is such a vague concept that it will give clinicians carte
blanche and so make patients scared to contact mental health services. I understand those concerns.
I would be concerned if that were the case. The last
19 Feb 2007 : Column 935
thing I would wish to do would be to discourage people seeking help which the service should be
giving to them, but “appropriateness” is neither a loose nor a novel concept; it is already used in the
criteria. Moreover, it captures the decision that needs to be made: is suitable treatment available for
the patient? I have said that the appropriate treatment test does not give professionals carte blanche.
As with any judgment they make in any field, clinicians must make their decision in a professional,
ethical way and be prepared to defend it. Sometimes in our debates we have lost sight of the ethos
of the professions we are concerned about.
It has also been argued that the appropriate treatment test may require clinicians to act unethically,
either by detaining people without treatment or by giving treatment they consider clinically
inappropriate. I do not believe that the appropriate treatment test could possibly be said to force
clinicians to act unethically; it is a test of whether suitable treatment is available. If clinicians do not
think that such treatment is available, they will not—indeed, they must not—recommend detention.
If a clinician subsequently discovers that the original assessment was wrong, and there is no
appropriate treatment to offer, they must take the relevant steps to secure the patient’s discharge.
The noble Earl, Lord Howe, asked, if appropriate treatment in some cases could consist of a
therapeutic regime under clinical supervision that helped control the effects of a patient’s condition,
what was there to stop such an approach in all cases? His description very much relates to the Reid
case and the implications of it. It is implicit, surely, in the concept of appropriateness that what is
appropriate for one person will not be appropriate for another. There are undoubtedly some
patients—probably only a small minority—for whom the only appropriate treatment is the kind of
therapeutic regime that, the Law Lords decided in the case of Reid, not only constitutes medical
treatment but also meets the treatability test. They may be people with a mental disorder that is
largely intractable but for whom some of their symptoms, at least, can be alleviated to a degree.
Clearly, such treatment would not be appropriate for a person whose mental disorder was
potentially curable or where medication, say, would be likely to have a greater effect than a
supervised therapeutic regime.
In other words, what is appropriate inevitably relates in part to what can be achieved. I do not see
how it can allow anyone to be detained for treatment that has not even tried to achieve what can
reasonably be expected to be possible. Furthermore, the appropriate treatment test has its own
distinctive advantages. In particular, it requires a holistic assessment of the patient’s needs—their
clinical needs and their personal circumstances. It requires that there should be treatment available
that suits the patient’s needs in the round.
I accept that there are lingering doubts about the appropriate treatment approach. That is why I have
tabled government Amendments Nos. 8, 11 and 12. They provide in terms that references to
medical treatment for a mental disorder means medical
19 Feb 2007 : Column 936
treatment for the purpose of alleviating the disorder, its symptoms or effects or preventing the
disorder, its symptom or effects worsening. In other words, they make explicit what the
Government have always intended to be implicit; namely, that the purpose of medical treatment
- 47 -
under the Act must be to address the person's mental disorder or its effects. It follows that no
treatment could ever be appropriate unless it has that purpose.
Noble Lords have focused on the use of the words “or effects” and suggested that the provision is
too wide and would allow a person to be detained just to stop them from carrying out certain
activity. One suggestion was swearing, and there were one or two other suggestions about some
activity which perhaps would be deemed to offend society as a whole. The reason for including the
word “effects” is that if we do not say that the purpose can be to alleviate effects or stop them
worsening, what would happen in the case of a person with a chronic condition for whom treatment
could realistically only address the symptoms or effects? I simply do not recognise the wider fears
that noble Lords have about the use of the word “effects” as an intent of the Government. As I have
said, I am willing to take this matter back to allow for further discussions between Report and Third
Reading to see whether further progress can be made. My tabling these amendments today reflects
my willingness to listen to what happened in Committee and to take a positive approach. I am quite
happy and prepared to continue that positive approach.
Lord Carlile of Berriew: My Lords, first, I am grateful to the Minister for addressing the debate in
such detail and for giving a response that has been helpful to a limited extent. Secondly, I thank all
those who have taken part in this debate of nearly an hour on an important issue at the centre of the
concerns that many of us have about the Bill and the Government's approach to the reform of
compulsory mental health law. I was going to spend a little time answering the noble Lord, Lord
Soley, but I will not because, in my view, the noble Baroness, Lady Murphy, has briefly but
comprehensively answered the point that he sought to make.
Clinicians are obliged to act within the law, whatever their medical ethical codes say. We in this
place and the other place make the law and the power of Parliament is such that if we pass a law
that forces a change in their ethical code, it is only on the highest slopes of judicial review—
possibly even in the European Court of Human Rights—that there is any prospect of obtaining
change. I am very persuaded by the fact that we have heard from two extremely distinguished
psychiatrists during the course of the debate: the noble Baroness, Lady Murphy, and my noble
friend Lord Alderdice, who have expressed great misgivings about the Government's approach to
the whole question of therapeutic benefit.
We have heard not only from them. Over the weeks and months we have heard from many of their
colleagues, in particular, from the Royal College of Psychiatrists. They are all totally unpersuaded
by the Government's approach. Nobody who could properly
19 Feb 2007 : Column 937
be treated, as the noble Baroness, Lady Murphy, said, would be excluded if our Amendments Nos.
4, 6 and 7 were adopted.
The Minister generously offered to talk further on the matter. However, I see no meaningful sign of
movement in his approach. He said to the House just a few moments ago that the Government still,
after this debate, see a justification for leaving in the words, “or effects”. Considering that remark, it
seems to me that the time has come for the House to show what it thinks on the issue of therapeutic
benefit.
Lord Hunt of Kings Heath: My Lords, I simply say to the noble Lord that it is clear from the
debate that there is some doubt about the meaning of the words, “or effects”. I merely suggested
that it might be appropriate to take a little time to explore that between this stage and the next.
- 48 -
Lord Carlile of Berriew: My Lords, I am very grateful for that, but the Government have had
since March 2005, to take an important date when the Joint Committee's report was produced, to
consider the issue. They had notice of the amendments. For the life of me, I cannot see how the
words of AmendmentNo. 4 disadvantage the Government in any waywhatever. Other stages of the
Bill will take place, not least in the other place. In my view, the time has come for this House to
express an opinion on the issue. That is what I propose to ask the House to do. I hope that that will
not be regarded as discourteous by the Minister. It seems to me an appropriate step at this stage.
6.43 pm
On Question, Whether the said amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 186; Not-Contents, 115.
Division No. 2
CONTENTS
Addington, L.
Alderdice, L.
Alliance, L.
Anelay of St Johns, B.
Astor of Hever, L.
Avebury, L.
Baker of Dorking, L.
Barker, B.
Beaumont of Whitley, L.
Best, L.
Blackwell, L.
Blaker, L.
Bonham-Carter of Yarnbury, B.
Boothroyd, B.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Burnett, L.
Buscombe, B.
Caithness, E.
Carlile of Berriew, L.
Carnegy of Lour, B.
Chadlington, L.
Chidgey, L.
Clement-Jones, L.
Colville of Culross, V.
Colwyn, L.
Cope of Berkeley, L.
Cotter, L.
- 49 -
Courtown, E.
Craig of Radley, L.
Craigavon, V.
Darcy de Knayth, B.
De Mauley, L.
Dear, L.
Denham, L.
Dholakia, L.
Dykes, L.
Eccles, V.
Eccles of Moulton, B.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Falkland, V.
Fearn, L.
19 Feb 2007 : Column 938
Feldman, L.
Ferrers, E.
Fookes, B.
Freeman, L.
Freyberg, L.
Garden, L.
Gardner of Parkes, B.
Geddes, L.
Glasgow, E.
Glentoran, L.
Goodhart, L.
Goodlad, L.
Greaves, L.
Greengross, B.
Greenway, L.
Griffiths of Fforestfach, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Harris of Peckham, L.
Harris of Richmond, B.
Haskins, L.
Hayhoe, L.
Henley, L.
Hodgson of Astley Abbotts, L.
Hogg, B.
Holme of Cheltenham, L.
Hooper, B.
Hooson, L.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
- 50 -
Howe of Idlicote, B.
Howell of Guildford, L.
Hylton, L.
Inglewood, L.
James of Holland Park, B.
Jay of Ewelme, L.
Jenkin of Roding, L.
Jones of Cheltenham, L.
Kingsland, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Laidlaw, L.
Laing of Dunphail, L.
Lamont of Lerwick, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Lindsay, E.
Listowel, E.
Liverpool, E.
Luke, L.
Lyell, L.
Lyell of Markyate, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mancroft, L.
Mar, C.
Mar and Kellie, E.
Marland, L.
Marlesford, L.
Masham of Ilton, B.
Mawhinney, L.
Methuen, L.
Miller of Hendon, B.
Monson, L.
Montrose, D.
Morris of Bolton, B.
Moynihan, L.
Murphy, B.
Murton of Lindisfarne, L.
Neuberger, B.
Newton of Braintree, L.
Nicholson of Winterbourne, B.
Noakes, B.
Northbourne, L.
Northbrook, L.
Northover, B.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
- 51 -
Patel of Bradford, L.
Perry of Southwark, B.
Ramsbotham, L.
Razzall, L.
Redesdale, L.
Rennard, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Roper, L.
St John of Fawsley, L.
Sandberg, L.
Seccombe, B. [Teller]
Selborne, E.
Selsdon, L.
Shaw of Northstead, L.
Shephard of Northwold, B.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Smith of Clifton, L.
Steel of Aikwood, L.
Stern, B.
Stewartby, L.
Stoddart of Swindon, L.
Strathclyde, L.
Taverne, L.
Taylor of Holbeach, L.
Tebbit, L.
Teverson, L.
Thatcher, B.
Thomas of Swynnerton, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tonge, B.
Tope, L.
Tordoff, L.
Trimble, L.
Trumpington, B.
Tugendhat, L.
Tyler, L.
Vallance of Tummel, L.
Verma, B.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Watson of Richmond, L.
Wedderburn of Charlton, L.
Wilcox, B.
Williamson of Horton, L.
- 52 -
Windlesham, L.
Young of Hornsey, B.
NOT CONTENTS
Acton, L.
Adonis, L.
Alli, L.
Amos, B. [Lord President.]
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Bassam of Brighton, L.
19 Feb 2007 : Column 939
Bernstein of Craigweil, L.
Bhattacharyya, L.
Bilston, L.
Blood, B.
Borrie, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter of Coles, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Corston, B.
Crawley, B.
Cunningham of Felling, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dubs, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. [Lord Chancellor.]
Falkender, B.
Farrington of Ribbleton, B.
Filkin, L.
Ford, B.
Foulkes of Cumnock, L.
Gale, B.
Golding, B.
Goldsmith, L.
Gould of Brookwood, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
- 53 -
Grantchester, L.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
Kilclooney, L.
Kirkhill, L.
Lea of Crondall, L.
Lipsey, L.
Lofthouse of Pontefract, L.
McDonagh, B.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Mason of Barnsley, L.
Maxton, L.
Mitchell, L.
Montgomery of Alamein, V.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Patel of Blackburn, L.
Pendry, L.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Simon, V.
Smith of Finsbury, L.
Snape, L.
- 54 -
Soley, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Temple-Morris, L.
Thomas of Macclesfield, L.
Thornton, B.
Tomlinson, L.
Truscott, L.
Tunnicliffe, L.
Turner of Camden, B.
Uddin, B.
Varley, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Whitaker, B.
Whitty, L.
Woolmer of Leeds, L.
Young of Norwood Green, L.
Resolved in the affirmative, and amendment agreed to accordingly.
[End of treatability and care & vote]
6.55 pm
[Registered Medical Practitioner & vote]
Lord Carlile of Berriew moved Amendment No. 5:
After Clause 5, insert the following new Clause—
“Renewal of detention
(1) Section 20 of the 1983 Act (duration of authority) is amended as follows.
(2) In subsection (3), after paragraph (a), insert—
(aa) to arrange for the patient to be examined by— (i) the registered medical practitioner who has
been professionally concerned with the medical treatment of the patient; or (ii) if no such
practitioner is available, a registered medical practitioner who is an approved clinician, and”
19 Feb 2007 : Column 940
(3) In subsection (3)(b) for “if it appears to him that the conditions set out in subsection (4)
below are satisfied, to” substitute “if the responsible clinician and the medical practitioner
agree that the requirements of subsection (4) are satisfied the responsible clinician shall””
The noble Lord said: My Lords, Amendment No. 5 is grouped with a number of other amendments
and a significant number of government amendments. This group relates to an important issue; the
renewal of detention and the renewal of community treatment orders. We are grateful that the
- 55 -
Government have gone some way towards accepting that the proposals on renewal that were in the
Bill prior to these amendments were unsatisfactory. Those of us who have put our names to the
amendments believe that deciding to renew detention or a community treatment order is an
extremely serious step. Indeed, we believe that it is no less serious a step than deciding to section
someone in the first place. Each renewal of detention is a fresh deprivation of liberty. Every renewal
of a community treatment order imposes serious conditions on the freedom of the person who is the
subject of the order to go about their everyday lives.
We believe that the legislation should ensure that a fully qualified medical practitioner is always
fully involved in what must be a robust decision-making process. Of course, many other highly
competent clinicians are involved in many cases, and I do not suggest for a moment that those other
people are not well qualified to take part in that robust decision-making process. Nevertheless, a
fully qualified medical practitioner can be expected to have the full kit of qualifications, including
the ability to make a full clinical assessment of the pharmacological and psychological effects of
any drugs that have been, or may be, prescribed when that renewal decision is being taken. Our
amendments would require one medical practitioner to examine the patient, and a responsible
clinician and a medical practitioner to agree before detention can be renewed.
The Government have offered a concession, which I have considered with some care, but I am
afraid that it is not acceptable in its present form. We are grateful that the Government have
certainly moved from their previous stance that only one responsible clinician, who may not be
medically qualified, should be involved in a renewal decision. Their amendments suggest that it
would be appropriate if the clinician at least consulted a doctor before taking those decisions, but
consultation is insufficient for such an important decision. I beg to move.
Earl Howe: My Lords, I support all that the noble Lord, Lord Carlile, said, and I do not propose to
repeat those points. I would, however, ask the Minister to focus on a particular aspect of this issue
when he replies. The Government have sought to respond to some of the concerns expressed in
Committee by tabling amendments that would require the responsible clinician, if he is not a
registered medical practitioner, to consult a medical practitioner who has examined the patient
before a renewal passport is issued. To be clear, is it correct that consulting a medical practitioner is
not the same as agreeing with that practitioner?
19 Feb 2007 : Column 941
What happens if the two professionals do not agree? What processes are there for resolving disputes
of this kind in which, say, a doctor does not believe that there are valid grounds for a renewal
passport and the responsible clinician does? If the responsible clinician remains in overall charge of
the patient, is his or her opinion trumped by that of a doctor? If so, where does the government
amendment make that clear? Who, in the end, takes the decision?
Secondly, the concerns which I and others raised in Committee related primarily to professional
expertise. Our worry was that renewal of the detention order is at least as complex a business as the
original decision to detain—it is often more so—and therefore it cannot be right to allow for
professionals who lack the necessary competencies to take the renewal decision. This concern has
since been echoed by the Joint Committee on Human Rights following a case heard by the
European Court. The key requirement from the human rights point of view is that the approval of
the responsible clinician should depend for its validity on his competence to provide the objective
medical expertise required by the convention. Either he has that competence or he does not. I
continue to argue that it is essential for a medical practitioner to be intimately involved in the
decision making. Initially the Government took a different view but they have now changed their
- 56 -
mind. Do they now acknowledge that the Bill in its current form is not human rights compliant, and
if so do they believe that their amendments put right the defect?
It has been put to me by the British Psychological Society that we should on no account rule out the
possibility of psychologists, with the appropriate training and experience, acting as the responsible
clinician and being able to decide on their own account whether the person under examination
meets the criteria for continued detention. In other words, the society does not accept that a doctor
always needs to be involved. It would appear from the Government’s amendments that they do not
now agree with that proposition even though they have argued for it in the past. But the issue raised
by the BPS in turn begs the question of the competencies that would be required of anyone carrying
the job title of responsible clinician or approved clinician. The Minister spoke about these at some
length in Committee. One of the competencies will be,
“the ability to identify the presence or absence of mental disorder and the severity of the
disorder”.—[Official Report, 15/1/07; col. 446.]
Can the Minister clarify that point? Will the competencies required of responsible or approved
clinicians amount to an ability to meet the ECHR criteria for objective medical expertise? Was that
what she was trying to say? If so, in what way will those competencies be evidenced and proven?
Notwithstanding their amendments tabled here and the opinion of the Joint Committee, do the
Government envisage a time when psychologists might be granted sole responsibility for
determining a renewal decision?
I welcome the fact that the Government have moved in the direction urged by many of us in
Committee. However, some important questions have
19 Feb 2007 : Column 942
been left dangling and I am a little worried that if the government amendments are accepted as they
stand, we will be left with some important uncertainties.
7 pm
Baroness Meacher: My Lords, I am grateful to the Minister for his amendment which definitely
goes part of the way to achieving what a number of us discussed with him outside this Chamber. I
want to focus on one point. As the government amendment stands, there is the rather ludicrous
possibility that an occupational therapist or nurse, for example, as the responsible clinician, could
consult a psychiatrist, with 13 years of training and experience. That psychiatrist might conclude
that a renewal would not be appropriate, but as I understand the proposed amendment the
occupational therapist or nurse could overrule that conclusion and could simply renew the
detention. Alternatively, a highly experienced psychiatrist could conclude that a patient would be a
danger to themselves or others if the detention was not renewed at that time and they were
discharged. However, a slightly ideological occupational therapist or nurse might nevertheless say,
“Why not? We’ll discharge this patient”. I cannot believe that the Government really want the
serious possibility of that state of affairs on the statute book. Therefore I seek an assurance from the
Minister that he will feel able to put that right and ensure that the medical opinion is in line with
that of the responsible clinician before decisions not only on a renewal but also on a raft of other
key aspects under the Mental Health Act 1983 and envisaged in this Bill are made.
Lord Patel of Bradford: My Lords, I shall be brief. This debate centres on the legal requirement
that detention under the mental health powers must be based on objective medical evidence. That is
the test established in the European Court of Human Rights and it is the matter addressed with such
- 57 -
clarity by the Joint Committee on Human Rights. The Government’s view that objective medical
evidence need not be provided by a doctor had been—here I choose my words carefully—a
minority view among legal commentators and stakeholders debating the Bill. I see that the Joint
Committee on Human Rights also does not agree with the Government’s definition of objective
medical expertise and that it found the Government’s arguments on this matter in the context of
renewal unconvincing. It therefore seems likely that convention compliance requires a doctor’s
involvement in the renewal of detention and that such a renewal should be based on objective
medical evidence. I do not believe that the government amendments provide sufficient involvement
for the simple reason that the law would require only that a doctor is consulted in the renewal
process. There are no requirements on the specific nature of such consultation—it could be a brief
telephone conversation—and the renewing professional would not appear to be bound only to
renew the detention if the consultation supported that action.
By contrast I have no hesitation in supporting the amendment moved by the noble Lord, Lord
Carlile, which would make it a requirement that a doctor
19 Feb 2007 : Column 943
examines the patient and concurs that the conditions for detention continue to be met. That is what
is and should be required of our legislation.
Baroness Royall of Blaisdon: My Lords, Amendments Nos. 5, 18, 19, 34, 37, 38, 41A, 42, 42A,
45A, 46A, 48, 49 and 50 concern key decisions about a patient’s case and the professionals who
should be involved in making those decisions. Of course we agree that renewing a person’s
detention is an extremely important step. The Bill places the responsibility for renewing a patient’s
detention and for extending or revoking their community treatment order with the patient’s
responsible clinician and an approved mental health professional must also agree before such an
order can be revoked. In many cases the responsible clinician will be a doctor. However, in some
cases where it is appropriate to the patient’s needs, the responsible clinician may be an approved
person from another profession.
In Committee and again today we have debated who should be responsible for renewing detention,
and I note that Amendment No. 5 differs from the one tabled in Committee. However, the
Government still cannot support this amendment, nor can they support the amendments about
extending or revoking a patient’s community treatment order because they undermine the role of the
responsible clinician and the policy on expanding professional roles in line with new ways of
working.
We have heard arguments relating mainly to the importance of psychiatrists or medical doctors in
making key decisions about patients. However, other views have not yet been heard which take a
different perspective on the matter. We have received letters opposing any amendment that would
put in the Bill a requirement for a doctor to be involved in the decisions taken by a responsible
clinician. They suggest that even the compromise proposed by our amendment is unnecessary.
Letters expressing this view have been received from the British Psychological Society, the Royal
College of Nursing, the College of Occupational Therapists, Dr Christine Vize, consultant
psychiatrist at Tees and North-East Yorkshire Mental Health Trust, Dr Stephen Humphries,
consultant psychiatrist at Avon and Wiltshire Mental Health Partnership Trust and Geraldine
Strathdee, consultant psychiatrist and director of clinical services at Oxleas Foundation Trust. These
individuals and professional bodies strongly believe that it is wrong for the psychiatrist’s
involvement in key decisions to be paramount to the exclusion of other members of the
multidisciplinary team. They believe that to do so would undermine the expertise of the responsible
- 58 -
clinician and the important contribution made by other members of the multidisciplinary team. We
agree with this point of view, but we feel that a compromise may be needed.
Currently, key functions must be allocated along strict professional boundaries, but we do not
believe that this is the most effective or efficient way of operating. It is the Government’s aim that
key functions should be performed by the most appropriate professional. All responsible clinicians
in England will be approved as approved clinicians by strategic health authorities. They must have
demonstrated high levels of skill and experience in mental health and have undergone specific
training in order to be approved. The competencies
19 Feb 2007 : Column 944
that must be demonstrated before a person can be approved have been agreed with a wide range of
stakeholders, including the Royal College of Psychiatrists, and will be in directions that have the
force of law.
There are clearly strong feelings on this issue from both sides of the debate. We are therefore
prepared to offer a compromise by amending the Bill to ensure that a responsible clinician who is
not a doctor consults a doctor before making key decisions. Government Amendments Nos. 18, 19,
34, 37, 38, 42, 48, 49 and 50 would require a responsible clinician who is not a doctor to consult a
doctor who has been professionally concerned with the patient’s medical treatment or who is an
approved clinician who has examined the patient before furnishing the report renewing a patient’s
detention before initiating, extending or revoking a community treatment order and before
furnishing the report redetaining a patient who has been absent without leave for more than 28 days.
Naturally, we would expect a responsible clinician to consult the multidisciplinary team, including a
doctor, as a matter of good practice, but the amendments would place the requirement to consult a
doctor into law.
The amendments will ensure that the expertise of a doctor will inform key decisions about a
patient’s case without fundamentally undermining the Government’s policy that a patient’s
responsible clinician, who has been selected because he or she has the expertise best suited to the
patient’s needs and who has the broadest knowledge of the patient’s case, should have the final say
in such decisions. To require the responsible clinician to gain the agreement of a doctor before they
can renew the patient’s detention or extend or revoke the patient’s community treatment order, as
Amendment No. 5 would require, implies that a doctor’s opinion is always the most important one
in making these decisions. Of course the responsible clinician should take account of the views of
the whole multidisciplinary team.
The noble Earl, Lord Howe, and the noble Baroness, Lady Meacher, asked what would happen if a
doctor who is consulted disagrees with the responsible clinician. It is right that the responsible
clinician should have the final say, because they have overall responsibility for the patient’s case
and therefore the best knowledge about the patient’s current condition. They have been selected
because they have the expertise most suited to the patient’s needs. They will also have access to the
range of professionals from the patient’s multidisciplinary team and will weigh up all views in
coming to a decision about the patient.
We expect that in most cases, the responsible clinician and the doctor should negotiate to come to a
mutually acceptable decision. If there is a fundamental difference of opinion that cannot be
resolved, there are several routes through which a psychiatrist can have the view of the responsible
clinician reviewed. They can ask the hospital managers to consider whether the patient should be
discharged; they can suggest to the nearest relative that they may want to consider using their
powers to discharge the patient; they can suggest to the patient that they may want to seek a tribunal
- 59 -
hearing; and they can request that the Secretary of State refers the patient’s case to the tribunal.
19 Feb 2007 : Column 945
Lord Alderdice: My Lords, if a responsible medical officer, be it a consultant psychiatrist or the
patient’s general practitioner, disagreed with the clinician, would they be required to continue
prescribing medication for the patient in a context which they believed to be clinically unsuitable,
because a non-medical practitioner would not be in a position to prescribe the medication? From
what the Minister has said, it seems that a doctor would be required to continue to prescribe
medication for a patient in a context which he or she felt was inappropriate.
Baroness Royall of Blaisdon: My Lords, I will seek clarification on that point from people more
expert than I. However, it seems to me that the medical doctor or the psychiatrist would have to
exercise her or his clinical judgment about whether to prescribe whatever medication was being
taken.
Lord Soley: My Lords, the reverse of that is that if the doctor said that the patient must be
readmitted and the psychologist disagreed, the psychologist might have to continue treatment that
he thought inappropriate. In other words, we do not resolve things in this way; ultimately, it is the
team approach that matters.
7.15 pm
Lord Alderdice: My Lords, perhaps I might clarify this for the Minister. None of the psychological
techniques in use is unavailable to psychiatrists, but a psychologist is not in a position to prescribe
medication. That is the point.
Baroness Royall of Blaisdon: My Lords, I am grateful for that clarification. However, I fully agree
that the team approach is the best one.
The noble Earl, Lord Howe, and the noble Lord, Lord Patel, asked whether we thought that the
legislation was human rights-compliant. Yes, we do. The Winterwerp judgment of the European
Court of Human Rights decreed that except in an emergency, a person should not be deprived of
their liberty unless they have been reliably shown to be of unsound mind, which must be established
by objective medical expertise. We fundamentally disagree with the view that only psychiatrists can
provide this objective medical expertise. We do not believe that the European Court of Human
Rights was seeking to require that only the medical expertise of a psychiatrist would be acceptable.
Instead, we believe that the judgment can be interpreted more broadly as referring to relevant
medical expertise which may be from mental health professionals with qualifications in disciplines
other than psychiatry.
Lord Lester of Herne Hill: My Lords, I am on the Joint Committee on Human Rights which wrote
the report on that matter. Is the Minister able to support what she has just said with any decision
made by the European Court of Human Rights, because what she said surprised me?
19 Feb 2007 : Column 946
Baroness Royall of Blaisdon: My Lords, I will have to write to the noble Lord on that issue; I will
do so gladly and with expediency, and will put a copy of my letter in the Library.
We understand the concerns that have been expressed today. Our policy has always been that the
decisions of the responsible clinician must be founded on consultation with the multidisciplinary
- 60 -
team. However, we feel that the responsible clinician must retain the final say in those decisions, as
the person with overall responsibility for the patient’s case. We have offered a compromise so that
we can place what is already good practice in statute.
The amendment in the names of the noble Lord, Lord Carlile, the noble Earl, Lord Howe, and the
noble Baroness, Lady Meacher, concerning the procedure for extending a community treatment
order also requires an AMHP to agree that the conditions for extension are met. We fully agree that
the extension of a community treatment order deserves very careful consideration, which is why the
Bill provides for a robust process for that decision. The responsible clinician must examine the
patient and consult with another person who has been professionally concerned with the patient’s
medical treatment. If the responsible clinician is not a doctor, then the person consulted must be a
doctor, or if the doctor has not been involved in the patient’s treatment, then a doctor who is an
approved clinician who has examined the patient must be consulted. The responsible clinician must
then submit a report to the hospital managers with the outcome of that consultation. On receipt of
the report, the hospital managers may hold a hearing to consider whether they wish to exercise their
power of discharge. Where the hospital managers are not satisfied that a patient should remain on
the community treatment order, they have the power, under Section 23 of the Act, to discharge the
patient.
There are other safeguards to ensure that a patient does not remain subject to a community
treatment order inappropriately or indefinitely. Given these safeguards, and the rigorous procedure
for extension, we do not believe that it is necessary to put an additional step in the process for
extending a community treatment order by requiring the agreement of an AMHP. It would mean a
different process from that for the renewal of detention. That does not seem logical, particularly if
the process already requires consultation with other professionals involved in patient care.
I commend Amendments Nos. 18, 19, 34, 37, 38, 42, 48, 49 and 50 to the House and invite the
noble Lord, Lord Carlile of Berriew, to withdraw the amendment.
Lord Carlile of Berriew: My Lords, I am very grateful to everyone who has spoken in this short
debate, which was on an extremely important issue of principle. The Minister’s full exegesis of the
background to the Government’s view and their current position has been extremely helpful to all of
us who have listened to the debate. I listened with great care to her very full presentation to try to
ascertain whether there had been any movement at all by the Government on this issue; I am afraid
that I have come to the conclusion that there has not.
19 Feb 2007 : Column 947
The Minister’s responses to the point about the European Convention on Human Rights, the
intervention by my noble friend Lord Lester of Herne Hill and the earlier intervention by the noble
Lord, Lord Patel, have left me drawing this conclusion about the ECHR issue; the law is against the
Government. The Joint Committee on Human Rights was right. The advice that, I take it, the noble
Lord, Lord Patel, has received from the Mental Health Act Commission, which he chairs, seems
right. The Government have provided absolutely no case law, no legal opinion and no background
that is in any way credible to show that their view is right. As a Member of this House, a lawyer
and, I hope, a conscientious legislator, I am simply not prepared to allow a clause to pass when it
seems so contrary to a fundamental aspect of the law—namely, the Human Rights Act—that all
legislation going through this House must comply with.
On the subject very helpfully raised by my noble friend Lord Alderdice, we had the response fed to
the noble Baroness by the noble Lord, Lord Soley, that teamwork is the right approach. That, I
presume, assumes that teamwork was not going to be involved in any event. The notion that
- 61 -
psychiatrists and other clinicians do not work together with social workers, families and all other
interested parties in these critical cases is of course absurd. I am sure that the noble Baroness did
not mean to imply that. Of course I will give way.
Baroness Royall of Blaisdon: My Lords, I certainly did not mean to imply that teamwork was not
taking place at present. The whole premise of what we are doing in this mental health legislation to
do with the approved clinicians is based on the notion of teamwork. The noble Lord said that I was
fed the answer; I am very grateful to my noble friend for providing me with that answer.
Throughout the response that I gave to the amendment I focused on teamwork, and I apologise to all
professionals concerned if I did not recognise that it already exists. We are placing greater emphasis
on teamwork.
Lord Carlile of Berriew: My Lords, the noble Baroness has absolutely no need to apologise to the
House. She made her position and that of the Government completely clear at all stages of her
speech. However, this is about the part that should be played in the team by the fully medically
qualified practitioner. As my noble friend said, only the doctor has all the kit, as I put it earlier, and
all the qualifications to make a full assessment, including the pharmacological effect of the drugs
that he may well have to prescribe after the decision has been made.
Lord Soley: My Lords, we ought to look at this again. Psychiatrists are involved in two very
important areas. One is the pharmacological area; the other is to identify whether the behaviour is a
result of a physical condition rather than a mental one. It is important to note that, when teams go
out to readmit people or to do other things of that nature, they may have the doctor’s knowledge but
they often work without doctors. That is no bad thing; it is teamwork.
19 Feb 2007 : Column 948
Lord Carlile of Berriew: My Lords, I agree entirely with the noble Lord that these clinical teams
involve many other people. We are talking about whether people should be readmitted to a hospital,
where they may spend many years, or whether there should be a renewal of a community treatment
order. My view, and the view of all of us who have been involved in the creation of this simple set
of amendments, is that it is essential that the fully qualified medical practitioner, with the full kit,
should be a key part of that decision.
The Government’s proposed amendments do not achieve that. I regret that very much, because it
seemed to me, when these amendments were drafted, likely that the Government would go the extra
yards to accept the amendments. However, given what appears to me to be an unwillingness to
move, I feel that I have no option, even at this late hour, other than to test the opinion of the House.
7.25 pm
On Question, Whether the said amendment (No. 5) shall be agreed to?
Their Lordships divided: Contents, 147; Not-Contents, 108.
Division No. 3
CONTENTS
Addington, L.
- 62 -
Alderdice, L.
Alliance, L.
Anelay of St Johns, B.
Ashdown of Norton-sub-Hamdon, L.
Astor of Hever, L.
Avebury, L.
Baker of Dorking, L.
Barker, B.
Blaker, L.
Bonham-Carter of Yarnbury, B.
Boothroyd, B.
Bottomley of Nettlestone, B.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Burnett, L.
Carlile of Berriew, L.
Carnegy of Lour, B.
Chidgey, L.
Clement-Jones, L.
Colville of Culross, V.
Colwyn, L.
Cope of Berkeley, L.
Cotter, L.
Craig of Radley, L.
Craigavon, V.
Darcy de Knayth, B.
De Mauley, L.
Denham, L.
Dholakia, L.
D'Souza, B.
Dykes, L.
Falkland, V.
Fearn, L.
Ferrers, E.
Fookes, B.
Fowler, L.
Fraser of Carmyllie, L.
Freeman, L.
Garden, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
Glentoran, L.
Goodhart, L.
Greaves, L.
Greengross, B.
Greenway, L.
Hamilton of Epsom, L.
Hamwee, B.
- 63 -
Hanham, B.
Harris of Richmond, B.
Henley, L.
Hodgson of Astley Abbotts, L.
Hogg, B.
Hooson, L.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Hylton, L.
Inglewood, L.
Jenkin of Roding, L.
Jones of Cheltenham, L.
Kingsland, L.
Kirkwood of Kirkhope, L.
Layard, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Listowel, E.
Liverpool, E.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
McNally, L.
19 Feb 2007 : Column 949
Maddock, B.
Maginnis of Drumglass, L.
Mancroft, L.
Mar and Kellie, E.
Marlesford, L.
Mawhinney, L.
Meacher, B.
Methuen, L.
Montrose, D.
Murphy, B.
Neuberger, B.
Newton of Braintree, L.
Nicholson of Winterbourne, B.
Noakes, B.
Northbrook, L.
Northover, B.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Patel of Bradford, L.
Ramsbotham, L.
Razzall, L.
- 64 -
Redesdale, L.
Rennard, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Roper, L.
Rotherwick, L.
St. John of Bletso, L.
Sandberg, L.
Seccombe, B. [Teller]
Selborne, E.
Selsdon, L.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Smith of Clifton, L.
Steel of Aikwood, L.
Stern, B.
Stewartby, L.
Stoddart of Swindon, L.
Strathclyde, L.
Taverne, L.
Taylor of Holbeach, L.
Teverson, L.
Thomas of Swynnerton, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tonge, B.
Tope, L.
Tordoff, L.
Trumpington, B.
Turnberg, L.
Tyler, L.
Vallance of Tummel, L.
Verma, B.
Waddington, L.
Wakeham, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Watson of Richmond, L.
Wedderburn of Charlton, L.
Wilcox, B.
Williamson of Horton, L.
Windlesham, L.
NOT CONTENTS
Adams of Craigielea, B.
Adonis, L.
Amos, B. [Lord President.]
- 65 -
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Bassam of Brighton, L.
Bilston, L.
Blood, B.
Borrie, L.
Brennan, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter of Coles, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Corston, B.
Crawley, B.
Cunningham of Felling, L.
David, B.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Donoughue, L.
Dubs, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. [Lord Chancellor.]
Farrington of Ribbleton, B.
Filkin, L.
Ford, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Gale, B.
Giddens, L.
Gilbert, L.
Golding, B.
Goldsmith, L.
Gould of Brookwood, L.
Gould of Potternewton, B.
Grantchester, L.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hollis of Heigham, B.
Howarth of Newport, L.
- 66 -
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
Kirkhill, L.
Lea of Crondall, L.
Lipsey, L.
Lofthouse of Pontefract, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Maxton, L.
Mitchell, L.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Handsworth, L.
Patel of Blackburn, L.
19 Feb 2007 : Column 950
Pendry, L.
Pitkeathley, B.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Rosser, L.
Royall of Blaisdon, B.
Sawyer, L.
Simon, V.
Smith of Finsbury, L.
Snape, L.
Soley, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Thomas of Macclesfield, L.
Thornton, B.
Tomlinson, L.
Truscott, L.
Turner of Camden, B.
Uddin, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
- 67 -
Whitaker, B.
Whitty, L.
Woolmer of Leeds, L.
Young of Norwood Green, L.
Resolved in the affirmative, and amendment agreed to accordingly.
[End of Registered Medical Practitioner & vote]
7.35 pm
Clause 7 [Appropriate treatment test in Part 4 of 1983 Act]:
Lord Carlile of Berriew moved Amendments Nos. 6 and 7:
Clause 7 , page 4, line 16, leave out subsection (2)
Clause 7 , page 4, line 24, leave out from “is” to end of line 26 and insert “likely to alleviate
or prevent a deterioration in his condition.””
On Question, amendments agreed to.
Clause 8 [Change in definition of “medical treatment”]:
[Amendment No. 8 not moved.]
Baroness Royall of Blaisdon: My Lords, I beg to move that further consideration on Report be
now adjourned. In moving the Motion, I suggest that Report begin again not before 8.36 pm.
Moved accordingly, and, on Question, Motion agreed to.
8.38 pm
Consideration of amendments on Report resumed on Clause 8.
[Bournewood]
Lord Carlile of Berriew moved Amendment No. 9:
Clause 8 , page 4, line 29, leave out from “substitute” to end of line 30 and insert ““drug
therapy, nursing and also psychological intervention and specialist mental health
habilitation, rehabilitation and care, for mental disorder and its consequences, under the
supervision of the responsible clinician;”.”
The noble Lord said: My Lords, moving back into Mental Health Bill mode, I also speak to
Amendments Nos. 10 and 75. These amendments refer to matters brought to my attention since
Committee by a distinguished consultant physician in Surrey and a barrister colleague of mine.
With Amendment No. 73, they mainly deal with issues arising from what has become known as the
Bournewood gap.
- 68 -
The three amendments are mainly intended to deal with two sets of circumstances; first, the
provision of medical treatment to those who are mentally incapacitated—temporarily, in many
cases, or permanently—but who are not suffering from mental disorder; secondly, persons who
suffer from mental disorder and need non-mental health medical treatment. Those who have
brought these matters to my attention say strongly—and, having considered the matter, I agree—
that some clarification is needed in the law. The purpose of these amendments is to draw the matter
to the attention of the Government, and to probe and, one hopes, secure a response from them,
perhaps not this evening but in due course.
It is important to distinguish mental health treatment from medical treatment, or “treatment” as used
in the Mental Capacity Act 2005. It would be less confusing to use the term “mental health
treatment” rather than “medical treatment” in the Mental Health Bill, reserving the term “medical
treatment” for medical and surgical therapy and medical treatment going beyond mental health
treatment. The complexity of the issue becomes self-evident on listening to that section of my
remarks.
In the Mental Health Act 1983, medical treatment refers to the treatment of the primary mental
disorder and its consequences. Medical treatment for the treatment of purely surgical or medical
conditions is not regulated by the Mental Health Act 1983. As an example, I refer to the case of St
George’s Healthcare NHS Trust v S, a 1998 case that was reported at page 673 of Volume 3 of the
All England reports of
19 Feb 2007 : Column 968
that year. In that case, it was held that a pregnant woman could not be forced to undergo a
Caesarean section without her consent merely because she was undergoing compulsory psychiatric
treatment under the Mental Health Act 1983. When one considers the facts of that case, it becomes
evident that those providing the non-mental health medical treatment were placed in an extremely
difficult position and had to make some extraordinarily complex decisions at high speed. Against
that, in the case of anorexia and other eating disorders, compulsory feeding of all kinds is regarded
as medical treatment under the Mental Health Act because it is correcting the malnourishment that
is a direct consequence of the mental disorder causing the primary eating disorder. Conversely, the
Mental Capacity Act 2005 does not provide authority for compulsory treatment for a psychiatric
disorder.
That statutory disorderliness is bound to cause difficulties for clinicians seeking to provide medical
treatment, in a general sense, and mental health treatment, also in a general sense. Modern
psychiatric treatment involves a range of modalities and is performed by a variety of mental health
professionals. It is no longer confined to drug therapy, ECT and other traditional treatments. The
term “mental health treatment” is preferable to “psychiatric treatment” since the range of modern
therapies and multi-disciplinary skills is now much wider. However, if one was to replace “medical
treatment” with “mental health treatment”, many unpredictable consequential amendments to the
Bill would be necessary and an amendment of the Bill along the lines of this amendment might well
meet the need for clarification.
Amendment No. 10 clarifies the definition of treatment in the Mental Capacity Act 2005 so that it is
clear that it means an intervention performed by a registered medical practitioner, not merely an
intervention by, say, a nurse in a nursing home providing a catheter or insulin. Amendment No. 75,
which is tabled in my name and that of my noble friend Lady Neuberger, is self-explanatory. It
ensures that patients receive the same standards of healthcare whether they are compulsory or
voluntary patients and whatever the setting. I concede that these are difficult and complex issues.
They are part of the consequences of separate legislation dealing with separate and difficult issues.
- 69 -
However, it is clear from what I have been told by experts working in the field—clinicians and
lawyers—that there is a need for clarification and I hope that the Government can answer the cry
for help. I beg to move.
8.45 pm
Lord Williamson of Horton: My Lords, I seek clarification on one point. Those of us who come
new to this material find a provision in Amendment No. 75, which refers to the possible,
“withdrawal or withholding of ordinary nursing care or personal care whether or not P [the
patient] has been deprived of his liberty”.
Obviously such a provision attracts attention because no one wants to get into a situation where
there could
19 Feb 2007 : Column 969
be a withdrawal or a withholding of ordinary nursing care. What I am not sure about is why the
amendment is necessary. Is it because there is no provision in the Bill, or is it because there is a risk
that such a situation could arise? It is something one would not expect to find. Therefore, I should
like to know why it is necessary to put it into an amendment to the Mental Capacity Act 2005. I am
not sure why it is required.
Lord Hunt of Kings Heath: My Lords, the noble Lord, Lord Carlile, has, in a sense, moved a
Committee-type amendment on Report. In that spirit he has asked for clarification of the law. I will
give what advice I can tonight, but I also offer to write further to the noble Lord—and other noble
Lords—as he has raised some interesting points that will inform later debate on the Bill.
It may be helpful if I start by outlining the changes we intend to make by Clause 8 and the reasons
for them. We are changing the definition of medical treatment in the Act primarily to reflect the fact
that we are opening up the role currently played by the responsible medical officer to a wider group
of professionals. We debated that issue just before the dinner break. Because of that change it no
longer makes sense for the definition of medical treatment to refer to care, habilitation and
rehabilitation “under medical supervision”, as “medical supervision” in this context of a definition
of treatment could be interpreted as requiring the supervision of a registered medical practitioner.
As we have made clear, we want medical treatments that fall within the ambit of the Act to go
beyond those that can be provided by or supervised by doctors.
We are also taking the opportunity to make explicit that the definition of medical treatment includes
psychological intervention. Practical examples of psychological intervention might include
cognitive therapy, behaviour therapy and counselling. Questions have been asked about issues that
arise from a range of physical conditions that can then give rise to mental disorders. Clearly, many
of those disorders will be transitory and will pass with the physical disorder. So the question of
using the Mental Health Act will often not arise. I say to the noble Lord, Lord Carlile, that my
understanding is that A&E departments are well used to checking for instances of, for example,
urinary tract infections and other common problems, which may potentially cause mental
disturbance in older patients. If such an infection is found, treatment will be offered accordingly.
But, clearly, when assessing patients in order to decide whether it is necessary to use the powers in
the Mental Health Act, it is clearly important to consider whether their mental health problems are a
direct consequence of a physical ailment. The fact that the mental disorder can be expected to be
alleviated by tackling the underlying physical condition may be decisive in deciding whether to use
- 70 -
the Act as there will be an effective and more appropriate alternative. Overlooking such factors is a
matter of poor practice rather than the law.
Conversely, I do not think that it should be assumed that it will never be appropriate to use the Act.
It surely must depend on the particular
19 Feb 2007 : Column 970
circumstances of the case, the severity of the mental health problems the patient is experiencing, the
persistence of the symptoms and the risk to their own safety and that of others. Our starting point is
that if the person’s mental condition, whatever its cause, is putting them or others at risk sufficient
to warrant detention in hospital for treatment, then there should be no arbitrary obstacles to the Act
being used.
As regards case law, I have been advised that in the 1995 case of B against Croydon Health
Authority medical treatment for medical disorders can include a range of acts ancillary to the core
treatment a patient is receiving. That can include treatment that is a necessary prerequisite to such
treatment. Each case must be judged on its merits, but it would probably be a mistake to attempt to
draw rigid lines and say that treatment for an underlying physical condition could never legitimately
be considered as part of treatment for mental disorder.
I turn to Amendments Nos. 10 and 75, which are equally interesting. It is clearly very important to
ensure that ill, frail or vulnerable people being looked after in a hospital or care home receive
satisfactory—more than satisfactory—care. In a sense, the noble Lord takes us back to the
amendment moved by the noble Baroness, Lady Knight, in Committee, when she raised some
important matters of concern. Noble Lords will know that I have agreed to meet the noble Baroness
because, although we do not think that the legislative framework is wrong, she has identified
matters which, if there is hard evidence, suggest an extraordinary failure in practice in some care
institutions. We need to do very much better if the poor practice that she identified is in fact
happening in either the NHS or care homes.
The Mental Capacity Act has established in statute a clear and robust framework for actions and
decisions to be taken for people who lack capacity to take decisions for themselves which would
otherwise be unlawful. It provides a framework. Its purpose is not to set out what decision is or is
not appropriate in any given place.
On the relationship between medical treatment, mental health treatment and the confusion that the
noble Lord describes between the Mental Health Act and the Mental Capacity Act, I will take that
back and look at it to see whether issues need to be confronted. As I said, I shall write to him. Our
initial reaction is that we think that the law is clear. The Mental Health Act provides for compulsory
treatment for mental disorder. The Mental Capacity Act provides a basis for treatment of any kind
for people without capacity to consent to it. However, as I said, I shall look further at the matter
and, in the first instance, write to the noble Lord.
Lord Carlile of Berriew: My Lords, I am very grateful to the Minister for dealing with the matter
in such a constructive way. I should be happy to discuss the matter with him outside the Chamber
subsequently if that is convenient and possible.
The amendment is about the confidence of clinicians—medical practitioners—in carrying out
treatment on patients who have needs. It is also about
19 Feb 2007 : Column 971
- 71 -
ensuring that patients who may be only temporarily incapacitated and who go into nursing homes or
rest homes have their rights fully protected so that they do not find themselves in some kind of
limbo when they are once more capable of managing their own affairs. It has been dealt with in a
very constructive spirit. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[End of Bournewood]
[Amendments Nos. 10 to 12 not moved.]
Earl Howe moved Amendment No. 13:
After Clause 8 , insert the following new Clause—
“Three month rule for second medical opinions
In section 58(1)(b) of the 1983 Act (treatment requiring consent or a second opinion) for
“three months” substitute “28 days”.”
The noble Earl said: My Lords, we return to an issue that is viewed by all sections of the mental
health community as being of major significance in the context of treating individuals under
compulsion. It relates to the period following an order for compulsory treatment before a second
medical opinion is required.
To recap on the background, the 1983 Act entitles the medical practitioner to use medication to treat
a patient for his or her mental disorder without consent—and, indeed, in the teeth of the patient’s
opposition—for three months. Before the end of that period, Section 58 of the Act requires a second
medical opinion to be sought from a doctor appointed under Part 4 before the treatment can
continue. A second opinion is mandatory under two scenarios: either where the patient does not
give consent or where he lacks capacity and the responsible clinicians consider that treatment
should be given.
The issue addressed by the amendment is very simple: three months of being treated without
consent, or without the capacity to consent, is too long. Medication for mental illness can be
dangerous and damaging to the person taking it. It involves powerful and potentially toxic
chemicals that have significant adverse side effects. A patient taking these drugs can put on weight,
contract diabetes, have major problems with his eyesight, become impotent, become extremely
lethargic and exhibit involuntary movements of the limbs that are highly embarrassing. This
medication is no picnic.
The whole business of prescribing psychiatric medication is fraught with pitfalls. Errors of
judgment about dosages and what drugs are right, and so on, are not uncommon. The off-label
prescribing and administering of harmfully high dosages are real and frequent problems. They can
have a serious impact on the patient’s physical and mental health. Moreover, as the noble Baroness,
Lady Finlay, pointed out in a previous debate, a patient’s diagnosis can change over three months.
Medication and dosages may need to be changed to take account of that. For all these reasons, three
months is a long time not to have a second opinion. As we heard from the noble Lord, Lord Patel, in
Committee, the Mental Health Act Commission has been absolutely clear about this. It does not
believe that the current Act
- 72 -
19 Feb 2007 : Column 972
gives enough protection to patients; nor, come to that, did the Government when they drew up the
2004 draft Bill, under which there would have been the tribunal authorisation of compulsory
treatment after 28 days. It is therefore alarming that the Government are now opposing this change.
The Minister’s main argument is that three months are needed to allow the person’s condition to
stabilise. I cannot believe that he advances that as a serious proposition, when only a few months
ago the Government were arguing for a review after 28 days. He will know, I am sure, that new
medication is available nowadays and that the guidance on it is quite explicit about the length of
time needed for it to be effective. In almost all cases, this is a fortnight. In the case of Clozapine, it
is a month.
We would do well to heed the words of the Joint Committee on Human Rights, which reported
recently. It pointed up the comparison between ECT and medicines. Unlike medicines, any
administration of ECT requires an immediate second opinion. The justification for this was that
ECT is seen as a more controversial treatment. It said:
“There is now a recognition that the effects of some psychiatric drugs may be as
unacceptable to patients as ECT, and that the likely efficacy of a particular antipsychotic
medication may be assessed within one month rather than three ... Three months is a long
time to be in receipt of compulsory psychiatric treatment without the opportunity for review
and supervision of the responsible clinician’s decision to impose that treatment, and we
consider it is doubtful whether the Government’s obligation under Article 8 to provide
effective supervision and review of treatment without consent is discharged by such a long
waiting time”.
That was the committee’s conclusion. The issue for the committee was whether the three-month
delay allowed for in the current Act is a breach of Article 8, and, if it is, whether that breach can be
justified as being proportionate to the aims of reducing the risk posed by a person’s mental disorder
and of improving their health. The committee reached the view that the justification for the
provision was “doubtful”. I put it to the Minister that this opinion by the committee sets the seal on
the whole issue. The law as it stands is not right and we need to change it. I beg to move.
9 pm
Baroness Neuberger: My Lords, I support the words of the noble Earl, Lord Howe, who has made
a strong case for why three months is simply too long. I want to add just a couple of points to his
remarks. First, those of us who have been in professional practice or have chaired NHS trusts have
experience of what can only be described as “macho prescribing”. People are prescribing at doses
above the BNF recommendation. Patients have a real fear of that and it is one of the reasons why a
review after a month rather than three months is something we ought to press for very hard.
My second point is one that we have considered in the context of a whole variety of issues as we
have debated the Bill: we are concerned about public safety. If patients are frightened of the
treatment they may receive, they are less likely to seek it. If they feel that they will be treated
compulsorily, they will become
19 Feb 2007 : Column 973
even more anxious if that treatment is not reviewed with a second opinion after one month rather
than three months. All this will be going on for too long and that makes people more fearful. The
- 73 -
more fearful they are, the less likely they are to seek early treatment and the more likely it is that
they will fall into the compulsory net. The circle then goes around all over again.
Simply to add to the words of the noble Earl, Lord Howe, we need to think hard not only about the
opinion of the Joint Committee on Human Rights, but also about the effect on patients and how they
feel about this. We must consider how in the longer term they will accept treatment, either
voluntarily or compulsorily.
Lord Patel of Bradford: My Lords, I am grateful to the noble Earl, Lord Howe, for bringing this
amendment back to the House on Report. I supported it in our previous debates and I continue to
support it now. I should add that I am chairman of the Mental Health Act Commission, which
administers second opinions under the 1983 Act. I argued at Second Reading that the additional
costs of reducing the three-month rule to a one-month rule should be met, as this was a measure that
would improve patient safeguards and respect for human rights. The Minister argued against any
change on three grounds.
First, he argued that certification before three months might be too restrictive and would not allow
for different drugs to be tried before the right one was found. This is unlikely to be true for the
simple technical reason that certificates tend to authorise drugs in terms of the BNF category rather
than naming individual drugs, so there would still be some room for the trial and error that
characterises the initial stages of treatment. Secondly, the Minister argued that some drugs do not
take effect for a number of weeks. It is true, for example, that antidepressants can take up to a
month to have any effect, and that this could cause difficulties where second-opinion doctors might
be asked to authorise the continuation of treatment whose beneficial effects had not yet been
demonstrated. But, of course, our doctors frequently do this, for instance when there are proposed
changes to treatment plans after a patient’s “three-month period” is over. Consideration of as yet
untried changes to individual patients’ treatment is a large part of the second-opinion role, and this
objection is thus misplaced.
Finally, the Minister was concerned at the additional cost and use of psychiatrists’ time. Underlying
this concern is a worrying implication that the benefit to patients in having the safeguard of a
second opinion does not outweigh the cost of providing that second opinion. I cannot accept that.
The Mental Health Act Commission’s last biennial report highlighted that a significant change is
made to a patient’s treatment plan as the result of a second opinion visit on every working day of
the year. But many detained patients will never see a second-opinion doctor or have their treatment
subjected to such scrutiny because they are discharged within three months of treatment
commencing. Others who
19 Feb 2007 : Column 974
remain in hospital and go on to see a second-opinion doctor may quite justifiably wonder where that
safeguard has been for the initial period of their detention.
The amendment could improve patient care and patients’ confidence in their care. The consent
provisions in the 1983 Act, of which this is a crucial part, were hard won in 1982, following
powerful lobbying at the time by Mind, in the shape of Larry Gostin and the late Tony Smythe. But
the idea was very new when the three-month rule emerged. We now have substantial experience of
operating these sections; the Mental Health Act Commission, among others, recognises the
importance of shortening the time for an opinion.
Baroness Murphy: My Lords, I have added my name to the amendment and wish to speak briefly
in its support. The Government indicated that they were thinking in this direction in the 2004 Bill;
- 74 -
this was welcomed by mental health services as an added safeguard. I strongly support the
amendment.
Lord Hunt of Kings Heath: My Lords, the amendment seeks to reduce from three months to 28
days the period for which a second-opinion appointed doctor must authorise the administering of
medication when the patient does not consent or is incapable of consenting. We discussed the
amendment in Committee. I said then that we believed the three-month period contained in Section
58 remains appropriate, and we have not been persuaded otherwise.
Where treatment is provided for under compulsion, it is essential that there are patient safeguards in
place. We have those. The Act provides for some treatments where safeguards come into play
immediately the treatment is proposed. ECT is one such treatment. Amendments Nos. 30 and 31
provide that consent will in future be required of any patient capable of giving it before ECT can be
administered. It is also the case that a person cannot receive compulsory medication for their mental
disorder unless their detention is supported by two doctors and an application made by, in the vast
majority of cases, an approved mental health practitioner.
It is best if the certification for continuing with compulsory treatment be undertaken at a time when
the efficacy of the proposed plan of treatments is understood. We do not depart from the argument I
used in Committee. We should also consider the right time for the patient to be effectively involved
in the process.
The noble Earl, Lord Howe, referred to the recent report of the Joint Committee on Human Rights,
which might be described as rather tentatively expressing or questioning whether the Government
are meeting their obligations under Article 8. Obviously we will consider that report, but it is our
view that the ECHR does not require us to have second opinions at all. In our view, when the courts
have addressed these matters, they have not taken the view that the provision breaches Article 8 or
that three months is too long a period.
19 Feb 2007 : Column 975
We have talked about Scotland a lot. The mental health legislation in force in Scotland prior to the
current Scottish Act was essentially the same as our 1983 Act. In 2002, the Court of Session held it
to provide adequate procedural safeguards in relation to the compulsory medication of patients
within an initial three-month period and that it was not in contravention of Article 8. In addition, the
High Court recently refused leave for a judicial review of the ECHR compatibility of Section 63 of
the Act on the grounds that, inter alia, the three-month period is too long.
Bringing forward from three months to 28 days the time allowed for the involvement of a SOAD in
cases where a patient refuses or is incapable of consent is not a simple act. It is not a matter of
providing the same service but earlier, as I said in Committee. I understand what noble Lords have
said about medication, but I think a three-month period provides an opportunity for the treating
psychiatrist to reflect on the medications he proposes to continue to administer to the patient. Of
course there are medications whose particular efficacy with an individual patient can be determined
within 28 days—there is no doubt about that—but that will not always be the case. It is already the
case that when the SOAD is asked to certify a relatively recent prescribed treatment, the efficacy of
such treatment may not yet be known. The situation can arise because the current medication is a
change from earlier but less effective medication, or because a patient is to be treated with a
different type of medication addressing a different aspect of the patient’s condition. The shorter the
period for involving a SOAD, the more likely it is that those circumstances will apply. That is likely
to be a regular aspect of providing certificates at 28 days.
- 75 -
It could be routine that there would be insufficient evidence for the SOAD to certify with
confidence that the proposed medication is the correct plan of treatment for the longer term, either
because 28 days is not a long enough period for treatment with that particular medication or because
the proposed medication has only recently been prescribed. The amendment would see many more
instances where SOADs would set shorter periods for their certificate, requiring earlier review
periods and follow-up SOAD visits. I do not see any value to patients in having a follow-up visit
from a SOAD simply because the first visit took place too early in their treatment plan. Not all
patients will welcome the visit of the SOAD.
I want to cover the issue raised by the noble Lord, Lord Patel, about our debate in Committee on the
implications of this change for demands for SOADs and therefore on the psychiatric profession. It
also concerns a point raised by the noble Lord, Lord Ramsbotham, in our earlier debate about the
cost of this legislation. This is very relevant to that debate. Current practice is that the secondopinion doctor appointed by the MHAC has at least five years’ experience as a consultant
psychiatrist. In 2005-06, 251 consultant psychiatrists were approved by the MHAC and made
themselves available to be appointed to give second opinions as required by the Act. Obviously,
that role is ancillary to their usual role as consultant psychiatrists, often with very busy
19 Feb 2007 : Column 976
caseloads of their own. I gave an initial estimate to the noble Baroness, Lady Murphy, on this, that a
reduction to 28 days would result in further increases on consultant psychiatric time to the tune of
approximately 20,000 hours in any one-year period.
I say to the noble Lord, Lord Patel, that it is not as much about the cost as the opportunity cost, in
the sense of the time spent by psychiatrists and whether it is better spent acting as SOADs or
providing direct psychiatric care. Clearly, that is a matter of judgment, but I ask the noble Lord to
accept that my doubts about reducing the period from three months to 28 days are not based on a
crude worry about the cost. However, I refer the noble Lord to the debates when I read the
Statement about our first efforts to introduce legislation a long time ago. One of the great criticisms
made of the original proposals was that many practitioners would be tied up in the statutory
safeguards that were to be put in place. One cannot simply ignore the consequences of reducing the
period from three months to 28 days.
It is also worth pointing out to noble Lords that we already have the power in the legislation; there
is a regulating power to change the period of days. Given that this is amending legislation, that
seems to be a perfectly satisfactory position for primary care legislation to have. It says it is three
months, and there is the opportunity, if the time comes and if it is felt appropriate, to reduce that
period. The Government strongly resist the amendment.
9.15 pm
Earl Howe: My Lords, I am naturally disappointed by that reply although I thank the Minister for
responding so fully. Feelings run fairly high in the mental health community about this issue and I
did not table the Committee amendment again lightly. The new ingredient in the pot since the
Committee stage is, of course, the report by the Joint Committee on Human Rights. The Minister
kindly undertook to look at that and I welcome his assurance.
There is provision in the 1983 Act to reduce the period of time before a second opinion is required,
which indicates to me that the then Government had at least an ambition to bring that about; and, as
we have heard, the Government themselves favoured a 28-day period in the 2004 draft Bill. I do not
- 76 -
think we can ever afford to forget the potentially serious affect that some of these medications have
on patients.
It may also be worth bearing in mind that in many of these cases the responsible clinician, once the
Bill becomes an Act, may well be a nurse—someone who is not a doctor. There may be no doctor
or psychiatrist involved until the SOAD provides his or her report. Those are real changes that will
arise out of the Bill. I do not think that it is right for us to proceed as we have in the past and accept
the three-month period as still necessarily the right one. Nevertheless, at this hour, it is right for us
to move on. I shall reflect carefully on what the Minister said. In the mean time, I beg leave to
withdraw the amendment.
Amendment, by leave, withdrawn.
19 Feb 2007 : Column 977
Baroness Murphy moved Amendment No. 14:
After Clause 8 , insert the following new Clause—
“CHAPTER 1A Treatment safeguards
Capacitous patient’s right to refuse electroconvulsive therapy
( ) In section 58(3) of the 1983 Act (treatment requiring consent or a second opinion) after
paragraph (b) insert “; or
(c) subject to section 58A (as inserted by section (Electro-convulsive therapy: children)), in the case
of electroconvulsive therapy a registered medical practitioner appointed as aforesaid (not being the
responsible medical officer) has certified in writing that the patient is not capable of understanding
the nature, purpose and likely effects of that treatment but that, having regard in particular to the
likelihood of its alleviating or preventing a deterioration of his condition it is necessary for the
treatment to be given.””
The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 15 and 16 and address
the government amendments in the group.
Your Lordships may wonder why I am speaking to the ECT amendments first. I do so because other
noble Lords have decided that I am a fan of ECT. It is an inaccurate assessment of my view of ECT
but, as I am one of the few people who have prescribed ECT on very rare occasions for elderly
people, I am well aware of its problems. I am very keen that we should have greater safeguards and
a recognition of the fear and the problems that have surrounded ECT. I believe that if ECT were no
longer available it would not make a great deal of difference, but there are one or two instances
where it needs to happen, and it is still a useful part of the armamentarium.
I am well aware that at this stage in our deliberations on Report Ministers may be in need of some
supportive psychotherapy themselves. I am delighted to welcome the Government’s amendment on
the capacitous refusal of ECT which cannot now be overridden for adults. The government
amendments in response to our amendments tabled in Committee have gone further than I expected.
They ensure not only that capacitous patients who refuse ECT cannot be forced to have it, but that
the wishes of those who have said in an advance directive that they do not wish to have ECT in the
future cannot be overridden. That sets a marvellous precedent. I am very grateful, as other noble
Lords will be.
- 77 -
The issue of a second opinion for all young patients for whom ECT is proposed unfortunately has
not been addressed. The 2004 draft Mental Health Bill would have introduced tribunal or court
authorisation of ECT for all patients under 16, whether or not under formal powers. The amendment
provides for a second opinion under the SOAD system for both formal and informal patients which
goes some way to matching this safeguard.
The amendment also requires that either the young person's own doctor or the second-opinion
appointed doctor is a child or adolescent practitioner. A similar amendment has been tabled in
relation to the use of compulsory powers over young people to ensure specialist involvement
specifically before treatment with ECT. In his response to the amendment in Committee, the noble
Lord, Lord Hunt, indicated that for informal patients who have capacity and have
19 Feb 2007 : Column 978
consented to ECT, a statutory second opinion would mean a young person being interviewed and
examined by a second doctor, whom they would probably not know. With such serious treatment it
is essential for a young person to be subject to a second opinion, regardless of whether they are a
formal or informal patient. Far from undermining a capacitous voluntary patient, provision for a
second opinion on a treatment with such far-reaching consequences can be only a support to the
young person and the clinician and offer them reassurance that the decision is in the best interests of
the patient.
Due to the nature of the relationship between a young person and their clinician, the young person
may find it difficult to voice their concerns. A second opinion will provide an automatic safety net
where the young person is less likely to feel that they are undermining their relationship with their
primary clinician. The young person will encounter a number of professionals they do not know
while they are being treated. It is an unavoidable consequence of being a patient.
Young people should have the sort of safeguards that older people have, and their wishes should not
be overridden by parental consent. The amendment allows for patients who are not capable to have
treatment on the basis of a High Court order, as there may be occasions when parents may not want
to make, or will not make, decisions in their children's best interests. We need to include greater
safeguards for young people.
I would also like to address the issue of emergency ECT. Here again, we must ensure that
capacitous patients do not have emergency ECT if they refuse to have it. As I said on a couple of
previous occasions, I cannot envisage a clinical situation where Section 62 emergency treatment
should ever be given to a patient who has capacity. Such treatment exists to treat profoundly
depressed people who have usually stopped eating and drinking and who are seriously at risk of
dehydration and death before the treatment takes effect. As the British Psychological Society has
pointed out, evidence from Northwick Park studies shows that if a nurse can sit with that patient day
in and day out over the course of a three or four-day weekend and get liquid into him one way or
another through a drip and so forth, ECT can usually be avoided. But sometimes it is necessary.
Sometimes the circumstances are not right and the patient may pull out the drip and refuse
treatment. But I cannot understand how such a situation could arise with a patient who had full
capacity. The nature of the illness is such that it would not happen. The amendment would provide
safeguards for a capacitous patient not to be subjected to ECT without his consent, if it was
outlawed as an emergency treatment. It would lead to better practice. There is nothing in this
amendment that would not be welcomed by psychiatrists. It is certainly welcomed by the Mental
Health Alliance. I beg to move.
- 78 -
Earl Howe: My Lords, like the noble Baroness I very much welcome the government amendments,
so it will seem rather churlish of me to complain that they do not go far enough—but I am afraid I
do.
19 Feb 2007 : Column 979
On the issue of urgent treatment, in Committee I raised some questions of interpretation over
Section 62, which sets out the circumstances under which urgent treatment may be administered.
This is defined as treatment which is,
“immediately necessary to save the patient's life; or.. which (not being irreversible) is
immediately necessary to prevent a serious deterioration of his condition; or... which (not
being irreversible or hazardous) is immediately necessary to alleviate serious suffering by
the patient; or... which (not being irreversible or hazardous) is immediately necessary and
represents the minimum interference necessary to prevent the patient from behaving
violently or being a danger to himself or to others”.
With regard to ECT, I ask the Minister to clarify the way in which this section should be read,
bearing in mind that it is known that for some patients ECT is not only hazardous but can also result
in irreversible side effects. I put it to him that the legal uncertainty over whether ECT is permissible
as urgent treatment when the patient’s life was not at risk was most unsatisfactory. It is perhaps
helpful to put part of the Minister’s reply to me on record. He wrote to me to say:
“Whilst I accept that there is some research that concludes that, for some people, their
treatment with ECT has resulted in irreversible physical, cognitive and/or psychological side
effects, there is no established consensus in psychiatry that this will happen—or is even
likely to happen—with all patients or in all the circumstances that ECT is provided. For any
given patient, a clinician could conclude that the patient’s treatment with ECT was not likely
to have unfavourable irreversible physical or psychological consequences, and would not
entail a significant physical hazard to the patient. Therefore the Government is of the view
that it is possible if the right clinical conditions apply for the approved clinician in charge of
the treatment of a patient subject to detention to treat that patient with ECT under the
circumstances described at Section 62(1)(a), (b), (c) or (d)”.
While I was most grateful for that reply, I really do not understand it. Certainly the Minister is right
to say that some patients benefit from ECT and do not suffer unacceptable adverse side effects as a
result of it, but he will know that there is now a widely held consensus of views within the medical
community about ECT that it is per se potentially hazardous and capable of having irreversible side
effects. The point is that you cannot tell in advance which patient is likely to suffer unacceptable
damage. You can make that assessment only ex post facto—at least, in most cases. Therefore, if it is
true that as a general proposition ECT is now regarded as an inherently hazardous form of
treatment, I do not see how it is possible for the Government to be comfortable in asserting the view
that they have about the interpretation of Section 62.
It is in any event a worrying interpretation. Urgent treatment is authorised under Section 62 without
the need for a second medical opinion, if a patient has refused consent, or when he lacks capacity to
consent. I believe that this is one clear instance in which we in Parliament have to listen hard to
what the clinicians are telling us. The noble Baroness, Lady Murphy, is one, and she has repeated
what she said in Committee, that she,
“cannot envisage a scenario where a fully capacitated patient who was able to consent would
fall into the need for urgent treatment”.—[Official Report, 15/1/07; col. 475.]
- 79 -
That view reflects the consensus of medical opinion to which I referred.
19 Feb 2007 : Column 980
We need to remember, too, that ECT will hardly ever be the only emergency treatment available for
a patient. In comparison with other treatment options and knowing what we do about it, it is really
very difficult to imagine how it could ever be the emergency treatment of choice, especially in
circumstances in which a patient’s life was not actually at risk. Therefore, I urge the Minister to
look at this issue again.
9.30 pm
In Amendments Nos. 30 and 31, the Government have implicitly accepted the case made in
Committee about ECT—that it represents a uniquely invasive and distressing form of treatment.
That acceptance now needs to be carried over into the provisions relating to urgent treatment.
I should like to add a couple of points of emphasis to what the noble Baroness said about ECT and
children. I fully support Amendment No. 15. I believe that a unanimous view was expressed in
Committee on this issue. Although ECT is rarely used on those under 18, it represents a particularly
hazardous form of treatment for that age group. We now know that the adolescent brain is still
changing and developing in its structure. Synaptic pruning, which is believed to be essential for fine
tuning of the functional networks of the brain, takes place throughout adolescence, as do changes to
the frontal cortex, which are essential for such functions as response inhibition, emotional
regulation, analysing problems and planning. NICE’s guidance on ECT almost certainly had these
findings in mind in stating that the risks associated with ECT may be enhanced in children and
young people.
It is worth pointing out that the amendment does not say that ECT should never be used on children
or young persons. It allows for the kind of exceptional situation which many speakers in Committee
acknowledged needed to be allowed for, when ECT may be deemed appropriate. But it would put in
place what I and others believe are appropriate safeguards for this particularly vulnerable group of
mental health patients, whether or not they are detained formally. I hope that the Minister will agree
to think again about this.
The Lord Bishop of Coventry: My Lords, in some senses I shall repeat what the noble Earl, Lord
Howe, has just said, but in a less erudite manner. We have before us a number of important
amendments which in many respects overlap, at least in intention if not in words.
I am very grateful to the Government for producing Amendments Nos. 30 and 31, but if I had to
choose I would be inclined to vote for Amendments Nos. 14, 15 and 16. I particularly welcome the
inclusion of the test of therapeutic benefit in Amendments Nos. 14 and 15 and the special provision
for patients under 18, including the requirement for the involvement of a clinician with special
training in child and adolescent mental health. The discussions in Committee tipped the balance
against the supposition that ECT for this age group should be banned, but its use requires stringent
safeguards as provided in Amendment No. 15. Will the Minister reflect further on the overlapping
nature of these
19 Feb 2007 : Column 981
amendments and produce a composite amendment at Third Reading that would take account of the
very positive things contained in all of them?
- 80 -
Lord Patel of Bradford: My Lords, in our debate on ECT in Committee, I raised the question of
what, if we are to outlaw the giving of ECT to capably refusing patients, would happen to those
patients who currently receive the treatment under such circumstances. This is not an insignificant
number of people; it is some hundreds of patients each year.
From the amendments before us, it seems that one way or another there are to be limitations on
powers available to impose ECT in the face of a capable patient’s refusal. This does not, however,
lead me to form a minority of one in this House and oppose both measures. My experience as
chairman of the Mental Health Act Commission, the body which administers second opinions, tells
me that clinicians, when considered as a body, do not measure capacity consistently or with
anything approaching objectivity, even assuming that such measurement was possible. It is true that
they can do quite well in agreeing in research situations, but I am not convinced that on the ground,
for instance in assessing the capacity of those patients who have second opinions, they are all using
the same yardstick.
Having listened to the debates on these issues so far, I have no fears that patients will suffer through
being denied ECT on the technical grounds of their capacity status. I accept that a proportion of
those patients currently deemed capacitated are probably not so in reality. I am concerned about
how many more incapacitated patients we will see than before, and how much the notion of
capacity will be measured in terms of the clinician’s wish to treat, but I do not see that concern as
one that would make me oppose this measure. In fact, having a practical capacity threshold for ECT
treatment may actually improve clinicians’ understanding and application of capacity testing. Let us
see how it works out.
I am bound to say that, of the amendments before us, I prefer the construction of my noble friend
Lady Murphy’s amendment for two reasons. First—and this touches on my concern over what will
happen to those patients who are given ECT under the present law, despite having refused to give
their consent—it is important to tighten the criteria for urgent treatment to stop such patients being
suddenly reclassified as urgent cases and treated without the safeguard of a second opinion.
Secondly, I am disappointed that the Government’s amendment leaves out the safeguard of taking
second opinions before any person under the age of 18 is given ECT. I support the amendment
tabled by the noble Baroness, Lady Murphy, on these grounds. For this reason, I hope that Ministers
will allow the noble Baroness, Lady Murphy, and her marshalled troops to push them that one or
maybe even two steps further in providing safeguards for ECT.
Lord Williamson of Horton: My Lords, I intervene very briefly, as I always do, to support the
amendment tabled by the noble Baroness, Lady Murphy,
19 Feb 2007 : Column 982
Amendment No. 15. Before I do that, I thank the Minister for the amendments that she has put
forward, which are welcome in an area that is extremely sensitive. I really intervene because many
of us speak from personal experience, and I know from mine of patients with mental disorders who
consider that the problems from which they suffer 20 years after having had ECT treatment are
wholly due to that treatment. That may not be true but it is what they believe, so we have to be
extremely cautious about what we can and cannot do with ECT treatment. I just wanted to make
that point.
Baroness Royall of Blaisdon: My Lords, we have had an excellent short debate on these matters
introduced by the noble Baroness, Lady Murphy. I am very grateful for the warm support—the
partially warm support—of noble Lords on these amendments. In Committee, my noble friend Lord
- 81 -
Hunt indicated that we would consider further the question of allowing patients subject to
compulsion to refuse consent to the use of ECT in non-emergency situations, and we have done just
that.
We accept that there is a persuasive argument for providing that a patient should have their refusal
respected when they are capable of understanding the nature, purpose and likely effects of being
treated with ECT and refuse to consent to that treatment. Your Lordships will note that our new
Section 58A is subject to the urgent treatment provision in Section 62 of the Act. I will return to that
later.
Amendment No. 15 also proposes a new Section 58A; for ease, I will refer in future to the
Government’s new Section 58A, or new Section 58A of Amendment No. 15. I believe that the
Government’s amendments achieve all that is in Amendment No. 14, tabled by the noble Baroness,
Lady Barker, but with some additional elements. Our amendment is in line with Sections 57 and 58
in that they do not make any distinction based on the age of the patient. With regards to a patient
who is capable of understanding the nature, purpose and likely effects of ECT and agrees to being
treated with it, we will require the approved clinician in charge of the patient’s treatment to certify
that the patient is so capable and has consented to the treatment before it can be given. Similarly,
Amendment No. 31 provides that the Government’s new Section 58A will be subject to Section 60.
There is an important difference of language between Amendments Nos. 30 and 14. The latter
requires a SOAD to certify not merely that treatment is appropriate but that it is necessary. In
practice, there may be little difference. Generally, ECT will not be appropriate except where it can
also be said to be necessary, but to make the test one of necessity in all cases would not be welcome
to those patients who actually have a preference for it over other methods of treatment. A
preference for ECT may be known from previous episodes of treatment or from an advanced
statement. The Mental Capacity Act provides for the making of an advanced decision to refuse
treatment.
Under the Government’s new Section 58A, a valid and applicable advanced decision to refuse
treatment with ECT must be respected where the patient lacks
19 Feb 2007 : Column 983
the capacity to consent at the time the treatment is being proposed. If a patient has granted a lasting
power of attorney and that power is made in such a way as to allow the attorney to take decisions on
the person’s behalf about relevant treatments then, where that attorney refuses consent to the
treatment, that refusal must be respected as if the patient had capacity to consent but was refusing to
do so. The situation would be the same in the unlikely, but not impossible, circumstance where the
Court of Protection appointed a deputy with authority to refuse treatment on the patient’s behalf. It
is also the case that the Court of Protection or another court with appropriate jurisdiction—for
example, with regard to children—can decide that treatment should not be given to a patient who
cannot consent to it. Our provision deals with all these matters expressly and I think that
Amendments Nos. 14 and 15 would be more comprehensible if they had done likewise.
We have considered Amendments Nos. 15 and 16, which respectively address additional safeguards
in relation to ECT for patients under 18 and limitations on the provision of urgent treatment with
ECT. My noble friend Lord Hunt said in Committee that the Government would also consider these
matters further. We have given much thought to them, but I must say that there are many
complicated issues to which we need to give further thought.
- 82 -
Amendment No. 15 provides for additional safeguards for patients under the age of 18 for whom
ECT has been proposed as a treatment for their mental disorder. There are complicated issues of
clinical practice and law here and I regret that we still need more time to get this very important
aspect of the need for specific safeguards for children who are to be treated with ECT absolutely
right before we respond. Some of the complications are illustrated by the noble Baroness’s
amendment. We need to be sure that we do not restrict clinical practice to the point where clinicians
will be denied a legitimate intervention to protect very ill children for whom ECT is, very
exceptionally, the best option. We also need to be careful in deciding to whom we give rights to
make decisions about the treatment of a child who cannot consent himself or herself.
Amendment No. 15 would provide that where the patient under 18 was incapable of consenting to
ECT, a person with parental authority must first consent to the treatment being given, unless there
was a court order that the treatment be given. We are not convinced that the right approach is to
provide that a parent must first consent before a SOAD can authorise treatment or, failing that, that
a court must make an order for the treatment to go ahead. We accept that a child patient who is
incapable of consenting to ECT should be provided for in such a way that a refusal to that treatment
can be made on their behalf. I would suggest that the courts already provide the right arena to
consider these issues.
I hope that this gives noble Lords a flavour of the very difficult issues with which we are still
grappling. I do understand the concerns expressed in relation to children and young people but I
cannot agree to the sort of composite amendment suggested by the right
19 Feb 2007 : Column 984
reverend Prelate. However, I can assure noble Lords that the Government will return to these
matters when the Bill is considered in another place.
The Government amendment provides that Section 58A would be subject to Section 62. We will
consider the criteria that must be met for urgent treatment with ECT. Amendment No. 16, by
amending Section 62, would restrict the provision of ECT to detained patients without a SOAD
certificate in urgent situations to those circumstances where it was required immediately to save a
patient’s life. In the previous debate in Committee, my noble friend Lord Hunt expressed concern
that that was too restrictive. I am concerned that the amendment will prevent a patient whose need
is not yet life saving, but whose condition, as it is, risks their suffering irreversible effects if
treatment is not provided urgently.
I understand the concerns behind the amendment and I share the desire that a provision for the
urgent treatment of a patient without a statutory second doctor’s approval should not be used to
bypass the usual provisions for a safeguard that requires a capable patient to give consent and
requires certification of a second-opinion appointed doctor when the capability of giving consent is
lacking. A balance must be struck here. Clinicians should not be denied the ability to provide the
right treatment to their patients, especially when that treatment would save the patient’s life or
prevent serious deterioration in their condition. Of course I have listened to the views of the noble
Baroness, Lady Murphy, but the Government believe that there must be the balance I mentioned.
The Government are not convinced that Amendment No. 16 strikes that right balance, but, equally,
we see that there are powerful arguments against ECT being permitted in all four cases generally
allowed by Section 62.
Amendment No. 85 provides for any certificate that authorises treatment with ECT for a patient
who is refusing consent before the enactment to cease to apply on enactment. It cannot be right that
- 83 -
a consent-capable patient refusing ECT can still be given ECT compulsorily because the treatment
was certified before the law changed.
Noble Lords have made it clear that they consider the requirement that consent be given before ECT
is provided to a patient who is capable of giving that consent should fall into that category. In the
light of that, we have been persuaded to bring forward these amendments and to pursue
consideration of the other issues that I mentioned.
I have listened carefully to the debate. However, we prefer our amendment over Amendment No.
14. Our amendment makes clear the circumstances in which a refusal can be effected for a patient
who lacks capacity to consent to ECT. Further, it provides for additional treatments to require the
consent of patients who are capable of giving that consent and safeguards for the treatment of
patients who cannot.
Before I end, I inform noble Lords that in Committee we debated an amendment that would have
provided that all clinics where ECT is administered would have to comply with the standards set by
the Royal College of Psychiatrists’ ECT accreditation scheme. My noble
19 Feb 2007 : Column 985
friend Lord Hunt advised your Lordships that he would make the Healthcare Commission aware of
the debate and that he would arrange for officials to discuss with the royal college opportunities for
encouraging more providers to put themselves forward for that scheme. Initial discussions have
already taken place, and the Healthcare Commission’s head of mental health policy, Anthony
Deery, and the director of the royal college’s research unit, Dr Paul Lelliott, along with Department
of Health officials, will be meeting shortly to work through some proposals that the Royal College
of Psychiatrists has put forward since Committee.
The Government have proposed an alternative to Amendment No. 14 and, for the reasons that I
have outlined, I ask the noble Baroness to consider withdrawing her amendment.
9.45 pm
Baroness Murphy: My Lords, I thank the Minister for that response, which, in some ways, was
almost more than I was looking for. She reassures me that the Government are still grappling with
the issue of ECT and children, which is still one of our big concerns. Although we welcome the
Government’s amendment for capacitous adults, which seems, to me at any rate, to meet most of
our concerns about them, we would like to look at Hansard more carefully. We are grateful that the
Healthcare Commission will look at accreditation being given by the Royal College of Psychiatrists
to units which are administering ECT. That is very welcome. Meanwhile, I beg leave to withdraw
the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 15 and 16 not moved.]
Earl Howe moved Amendment No. 17:
After Clause 8, insert the following new Clause—
“Patients’ wishes and requests for treatment
- 84 -
(1) The 1983 Act is amended as follows.
(2) After subsection (4) of section 58 (treatment requiring consent or a second opinion),
insert—
“(4B) When deciding what treatment to give, the approved clinician in charge of the
treatment shall have regard to the wishes of the patient, whether expressed directly or in an
advance statement, and shall record any treatments requested by the patient in the patient’s
medical record, and if that treatment is not given shall record the reasons for this.”
(3) In section 63 (treatment not requiring consent), at the end, insert—
“(2) When deciding what treatment to give, the approved clinician in charge of the treatment
shall have regard to the wishes of the patient, whether expressed directly or in an advance
statement, and shall record any treatments requested by the patient in the patient’s medical
record, and if that treatment is not given shall record the reasons for this.””
The noble Earl said: My Lords, I return, without apology, to an issue that we debated in Committee
which I and many others felt was left unresolved—that is, the importance of ensuring that clinicians
who prescribe treatment have regard to patients’ wishes.
There is nothing in the 1983 Act about this matter but it is terribly important. Putting a duty of this
kind into the Act would achieve three main benefits; it
19 Feb 2007 : Column 986
would undoubtedly improve a patient’s autonomy and feelings of autonomy; it would increase the
chances of consensual treatment and thereby avoid unnecessary compulsion; and it would improve
patient safety because it is the patient himself who will often know what has previously harmed or
helped him. In the latter context, it could even be life-saving.
The Minister rejected a very similar amendment in Committee. He said that he felt this was a matter
best dealt with in the code of practice. Perhaps I may say why I believe that he should reconsider
that view. A decision to invoke involuntary treatment is a most serious step because of the
interference with the patient’s physical integrity that is involved in the process of compulsion.
Having regard to the patient’s wishes is not simply one aspect of practice among many; it is a core
principle that informs practice. It is precisely because the Act is concerned with the legal processes
that allow compulsion that this principle needs to be stated in the legislation. Stating a duty to abide
by this principle, with specific reference to decisions about treatment, will focus attention on patient
participation at a time in what is a very critical process when the patient’s views can all too easily
be disregarded.
The current code of practice already states that the whole care programme should be discussed with
the patient, and it sets out various duties about seeking consent and providing information to the
patient. But we know from the most recent biennial report from the Mental Health Act Commission
that there are all sorts of problems with the administration of Part IV of the Act. Discussions with
the patient about proposed treatments are not recorded. Patients tell commissioners that they are not
happy taking their medication even though there is a form 38 certifying their informed consent.
Yes, this is a matter of good practice and better training, but where is the impetus for that to come
from? It needs to come, I believe, from a duty in law to have regard to patients’ wishes.
- 85 -
The amendment would also require the clinicianto record any treatments requested by the patient
and to record the reasons if the treatment is not given. Up to now the Government have rejected this
idea as being too bureaucratic. I look at it the other way. A duty of this sort is clearly tied into the
decision-making process for what treatment is to be given, and to include in a patient’s notes a
reference to the treatments he requests is not burdensome. Indeed, it could be seen as the least that
would be expected, especially where the clinician responsible for particular treatments is not the
same as the clinician with overall responsibility for the patent’s case. Often when a treatment is
requested by the patient there will be good reasons why it cannot be given. It may not be clinically
recommended. It may not be possible to provide it. If so, that information ought to be available for
future reference whether to the patient or other people authorised to access the patient’s record.
Of course, the duty set out in the amendment would not define the limits of the whole process of
patient participation, nor would it prevent clinicians from enabling participation in a range of ways
19 Feb 2007 : Column 987
appropriate to the patient and the circumstances. However, it would give patients a modest but
significant right to assert their wishes in the knowledge that these must be noted, and that any
refusal must be a reasoned refusal. In an otherwise powerless position of being compulsorily
sectioned, the opportunity for the patient to influence decisions is a very important one.
It is that powerlessness at a time of mental health crisis that patients often talk about. The
amendment would guarantee a worthwhile degree of patient autonomy, with all the benefits that I
mentioned earlier. I hope that the Minister will be prepared to have another look at this issue. I beg
to move.
Lord Patel of Bradford: My Lords, it seems to me that the essential point of these amendments is
to ensure that when a patient’s past or present wishes about treatment are not respected for whatever
reason, the justification for this must be recorded by the decision-maker.
This is a modest proposal in terms of legal duties, but I believe that it would have a significant and
beneficial effect in the way in which patients’ wishes are addressed by services. It is, thanks to
fairly recent case law, a requirement that any second-opinion doctor authorising treatment without
consent must justify his or her decision in writing. This amendment would extend that requirement
to other decision-makers who may be overriding patient wishes.
In my view, and that of the courts, when the matter is brought to their attention, recording reasons is
a very basic requirement of responsible and justifiable decision-making, where those decisions may
interfere, or potentially interfere, with fundamental human rights. Some exemplary services may
already make and record their decisions in such a way that would meet the statutory requirement
that this amendment puts forward. Many unfortunately do not. It is on that basis that I support the
amendment.
Baroness Murphy: My Lords, of the two amendments in this group, Amendment No. 72 is rather
stronger than Amendment No. 17. Both give expression to the wishes of patients to have their
voices heard. Amendment No. 72 would give at least part-equivalence to the Mental Capacity Act,
with patients being able to say what they would like for themselves in the future and what
treatments they would refuse.
I ask the Minister how these amendments fit into the Government’s proposed new Section 31A for
the ECT safeguards. It seems that the Government have, in a sense, accepted the role of advance
decisions in that. That is exceedingly important, particularly as we know from studies in the United
- 86 -
States that in advance decisions—when patients, in between episodes of illness and having full
capacity, document which treatments they do not want—80 per cent express an opinion on the
future use of ECT.
Lord Alderdice: My Lords, I support the amendment from a slightly different angle. The focus has
tended to be on the requirement to note what
19 Feb 2007 : Column 988
treatment the patient wants when the treating clinician may think differently, ensuring that the
patient’s views are expressed and protected.
There is another element. Sometimes patients can request all sorts of treatment, repeatedly, over
quite a short period. The clinician is almost assaulted with a range of requests. Every time they see
the patient, they will have a different set of requests to change the drugs or do something else. It is
important that these matters are recorded so that anyone coming back to look at them understands
something of the difficulty of interaction, perhaps because of disturbance of the patient’s mind or
personality.
I am reminded of interaction that we had with the police service over a long time in Northern
Ireland. We were trying to persuade them that it would be helpful for everybody concerned to
videotape all interviews, and that it was in their interests as well as those of the interviewees
because they would be protected when allegations were made against them. It took a long time, but
they eventually agreed to audio taping and, eventually, to videotaping. When everyone looked back,
they agreed that far fewer allegations were subsequently made, because there was no point in
making allegations with no basis.
That is not an alternative to the arguments made but it is another side to them. For colleagues to
realise that if they were to note some things—even if they think they are ill advised, unhelpful or
tedious—it would protect them. It encourages them to think about the thing, and helps anyone
coming in afterwards to give a second opinion or whatever to realise some of the difficulties and
struggle in the clinical relationship. For that reason, as well as those already given, I support the
amendment.
Lord Hunt of Kings Heath: My Lords, this has been an interesting debate, repeating much of the
argument made in Committee. The amendments are asking practitioners, be they doctors or
approved clinicians from other disciplines, to do what they ought to do as a matter of good practice.
That is essentially why the Government do not think that this provision should be in the Bill.
It is surely axiomatic that clinicians should listen to patients and take careful account of their
wishes, preferences and experience. The clinician who does not recognise that—and that patients,
even those who are seriously ill, are very often experts in their own health—are missing a big trick.
The fact that patients may be liable to compulsory treatment under the Act in no way diminishes the
importance of encouraging them to express their wishes and engage in designing their own
treatment, nor the imperative to pay close attention to what they say. Treatment without consent
does not, and must not, mean treatment without regard to the patient’s views.
10 pm
It is similarly fundamental that, where patients have made their views known in advance, those
views should be treated with the same respect. That is not just a question of respect for patients’
dignity; it can also be a powerful tool for providing efficient and
- 87 -
19 Feb 2007 : Column 989
effective care. In Committee, the noble Baroness, Lady Murphy mentioned research on the
effectiveness of joint crisis plans as a way of reducing compulsory admissions and treatment.
It is likewise undeniably important that good records are kept of decisions and the basis on which
they were made. In response to the point made by the noble Baroness, Lady Murphy, about the
relationship with the ECT amendment, I understand that we have accepted the role of binding
advance decisions in that context. However, these amendments are not about binding decisions,
which is the difference. I am happy to write to the noble Baroness in more detail if she would
welcome it.
I know that the noble Earl, Lord Howe, did not like my argument that there are many other aspects
of good professional practice that we would wish to be followed but which noble Lords are not
seeking to put in the Bill, but it is a strong point. It is clear that the Act already contains plentiful
requirements to keep proper records where decisions are taken that restrict patients’ freedom in the
interests of their health or for the protection of others, which is why statutory forms have to be
completed when patients are detained under Sections 2 and 3 and when renewing detention. It is
why approved clinicians must certify a patient’s consent to medication under Section 58 or else
obtain written approval from a SOAD. I accept that there is an argument about whether the issue in
relation to treatment is worthy of being added to the list of statutory reports and forms. We need to
have a balance. We cannot make everything a formal legal requirement, or else we will end up with
mental health legislation of the kind that was feared at the turn of the century: a well intentioned but
overburdensome legislative framework.
I was interested in what the noble Lord, Lord Alderdice, said. For a moment, I thought that he was
going to speak in my favour when he talked about the problem of the persistent patient who is
constantly making demands on the practitioner. That would be one of the problems of having a
bureaucratic demand in the Bill. I was interested in the noble Lord’s wide experience in Northern
Ireland with the police, but I am not persuaded that professionals filling in countless requests would
be a good use of their time. We are trying to get the balance of opportunity costs right.
It is not entirely clear what such a provision would achieve in law. If it is merely a declaration of
good practice, it is not for legislation but for the code. If it is for legislation, what is the sanction for
failure to be? What is the sanction against the professional who does not keep these records? Would
the noble Earl say that the effect of not filling in the form might be to render a patient’s detention
unlawful? He needs to consider that because I do not think it is a good thing to do, but there is not
much point in including this provision in the Bill unless the consequences are known.
Noble Lords may be a little impatient with me when I say that the code exists to take the principles
and legislative framework implicit in the 1983 Act and
19 Feb 2007 : Column 990
outline the practice that professionals need to operate it. We know that the statutory code of practice
is very strong. I cannot for the life of me see why such provision is not appropriate for the code.
Earl Howe: My Lords, I thank noble Lords who have spoken in the debate. I am grateful to the
Minister, despite the fact that his reply is not entirely unexpected, but I thank him for his backing, at
least of the sentiments underlying my proposals.
- 88 -
I think that there should be sanctions against infringement of this proposal, were it to be
incorporated in the Bill. What those sanctions might be would be for another discussion. As I
mentioned earlier, we have not gone nearly far enough with the code of practice; something has to
be done, if not on the face—
Lord Hunt of Kings Heath: My Lords, this is a draft code of practice. Perhaps I should have said
that to the noble Baroness, Lady Barker, on the first amendment today on principles. Clearly, the
code will be informed by the debates that take place in your Lordships’ House, in the other place
and outside. It is a living, breathing document which is capable of improvement; I have no doubt
that it will be improved.
Earl Howe: My Lords, the Minister makes a very helpful observation. I am sure that we are all
encouraged by it. We will all take enormous interest in how the code is put together.
Lord Hunt of Kings Heath: My Lords, the eventual new code has to be laid before Parliament,
and I would not be at all surprised if we had a debate about it.
Earl Howe: My Lords, I think that that is my cue for withdrawing the amendment in anticipation of
such a debate. Once again, I thank noble Lords, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 9 [Amendments to Part 2 of 1983 Act]:
[Amendments Nos. 18 and 19 not moved.]
[Care planning]
Clause 14 [Amendments to other provisions of 1983 Act]:
Lord Patel of Bradford moved Amendment No. 20:
Clause 14 , page 9, line 44, at end insert—
““care plan” means a structured plan which sets out timescales, responsibilities and services
required to meet a patient’s assessed mental health needs;”.”
The noble Lord said: My Lords, I shall also speak to Amendments Nos. 43 and 53. These are
revised versions of my amendments in Committee. As I have removed that part of the original draft
which I sense was the real sticking point for Ministers—although it was a dog that did not bark in
our debates in this House—I hope that we can now reach an agreement to provide the 1983 Act
with a lever that helps
19 Feb 2007 : Column 991
implement the Government’s admirable policy on care planning and risk assessment for detained
patients.
The amendments have been shorn of the provisions presented in Committee whereby the mental
health review tribunal could choose to discharge a patient on the grounds that its care plan was not
being implemented. It may be that those clauses could have been interpreted as a new criterion for
discharge. I believe that the existing criteria are sufficient. Tribunals are empowered to discharge
- 89 -
patients where the need for continued compulsion cannot be demonstrated, and that probably
encompasses all the situations I had in mind anyway. That leaves us with a proposed duty on
services to provide a comprehensive care plan to all patients detained in hospital or leaving hospital
under a community treatment order.
There would be a statutory duty to consult nearest relatives, carers and patients themselves in
drawing up this plan where it was appropriate to do so.
I will not bore the House by reiterating the current failings—and there are many—in the
implementation of the care programme approach, or by stressing the consensus in Committee that
care planning under such a scheme, if implemented properly, would be the cornerstone of good,
humane and safe mental health services. I will simply address the Minister’s objection in our
previous debate that,
“giving the CPA statutory force would require legislation to be so widely drafted as to be
meaningless”.—[Official Report, 15/01/07; col. 536.]
I do not accept that the amendment before us today is meaningless or that it could not have any
effect on services. Indeed, I do not accept that the current Act’s provisions on planning for aftercare
under Section 117 are meaningless, although they impose broadly drafted duties on health and
social care authorities. Neither would I accept that Section 132 was meaningless, although it
requires hospitals to provide information to patients and relatives in broadly drafted terms.
Anyone working with the current Act during its time on the statute book would accept that such
examples of broadly drafted duties have had some effect in changing professional behaviour and
improving the service to patients and carers. Where services provided to patients and carers fall
short of those requirements, their basis in law is an important lever to improve such services. It is a
lever used by patients, carers and monitoring bodies. Of course, I speak as the chairman of the
Mental Health Act Commission and must declare that as an interest. I entirely agree with the
Government's position that detailed guidance on care planning should be established in the code of
practice, but nothing in the amendment would change that.
I also agree that it would be counterproductive to establish statutory duties that required care plans
in addition to those required by the care programme approach, thus creating a bureaucratic burden
on services, but nothing in the amendment would do that either. The amendment would simply
place on services the statutory duty to do something that a great number of them fail to do at
present: to provide
19 Feb 2007 : Column 992
patients with a decent care plan. It is government policy that they should do so and I cannot see why
that should not be a legal requirement. I beg to move.
Baroness Royall of Blaisdon: My Lords, the noble Lord, Lord Patel of Bradford, has returned to
this topic with his usual enthusiasm, for which we are all grateful. In Committee, he acknowledged
that the Government have good intentions but said that there remain serious problems in providing
patients with robust and appropriate care plans. Clearly, those problems persist.
We wholeheartedly agree that care planning must be carefully and comprehensively undertaken for
every patient, whether voluntary, detained or subject to supervised community treatment. Each care
package must be tailored to each individual, taking into account their particular needs and
- 90 -
circumstances. That is a vital part of their treatment. As the noble Lord, Lord Patel, said, it is a
cornerstone, a fundamental component of good mental health care.
We also agreed with the noble Lord when he said on Second Reading that the care programme
approach and its equivalents for older people, children and adolescents should ensure that care
planning takes place. We acknowledged then and we do now that CPA is not always consistently
applied. Far from it. We drew attention to our current review of CPA, which is examining how
patients with the most crucial needs can be targeted, how the process can be streamlined and how
patients can be given more control over their care and treatment. The public consultation is due to
end today.
I have brought to the attention of the review team the record of this House’s debates on the matter
and I promise to bring to its attention our debate this evening. There is still much for the review to
do as it begins to consider the representations made. I am more than happy to arrange for the review
team to write to interested Peers to offer to meet them to discuss the progress of the review and to
outline how it will be taken forward before it reports in the autumn.
Although our debates provide the review with invaluable insights, many Peers may want to take that
extra opportunity. We will of course carefully consider the results of the review to see what
stakeholders want, and we will see what improvements we can make to CPA and therefore to care
planning for all relevant patients, including those under SCTs and those who are detained.
Similarly, in Wales, the Assembly Government have reviewed the operation of CPA and have
recently issued a report with recommendations to service commissioners and providers in Wales. It
is the implementation of the reviews, not statutory requirements, which we believe will improve
care planning for that patient group.
Although acknowledging the importance of care planning, we do not agree with giving statutory
force to it, as proposed under the amendment. That is not to say that we think that the amendment is
meaningless—far from it. However, there are practical problems in enshrining care planning in
legislation, problems that
19 Feb 2007 : Column 993
we began to appreciate when we got to grips with the detailed practical implications of the
proposals that we included in the 2004 draft Mental Health Bill. I fear that there will always be
tensions between the need to establish clear legal parameters, whether in primary or secondary
legislation, and leaving the flexibility necessary to ensure that care plans are a positively helpful
clinical tool. Care planning is such an individual process. The quality of application is the issue, and
it must be addressed by improvements in practice. In this Bill, we do not need to make the care plan
serve a legal purpose as well as its primary clinical one. That is why we have opted for guidance
both in the code of practice for England and, I am told, in the code of practice planned for Wales.
The proof of care planning is measured in patient outcomes and experience. The best way to
improve quality is through the current reviews and their effective implementation and through the
codes of practice. I therefore invite the noble Lord to work with us on the code of practice and to
withdraw his amendment.
10.15 pm
Lord Patel of Bradford: My Lords, I thank the Minister for her response. Obviously I am
disappointed that she does not think that we could put this into legislation, but I quite understand the
- 91 -
reasons that she has provided. I especially look forward to the review, and the Mental Health Act
Commission and I will be very happy to work alongside Ministers and officials to strengthen the
code of practice in this area. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[End of care planning]
[Approved Mental Health Professionals]
Clause 18 [Approved mental health professionals]:
Baroness Royall of Blaisdon moved Amendment No. 21:
Clause 18, page 11, leave out lines 28 to 33 and insert—
“(4) The appropriate national authority may by regulations make provision in connection
with the giving of approvals under subsection (1) above.
(5) The provision which may be made by regulations under subsection (4) above includes, in
particular, provision as to—”
The noble Baroness said: My Lords, as we have discussed, the Mental Health Bill replaces the
current role of approved social worker with the new role of approved mental health professional. It
gives local social services authorities the power to approve a person as an AMHP who is competent
in dealing with people suffering from mental disorder, subject to directions from the Secretary of
State and Welsh Ministers setting out criteria for approval.
The approval criteria will be binding on local authorities and will apply to the approval of a broader
range of professionals than they currently do, to undertake the important functions under the Act
undertaken by AMHPs. For this reason, the Delegated Powers and Regulatory Reform Committee
said that it would like to see the approval criteria in regulations. We have listened to the advice of
the committee and on reflection we think that it would be
19 Feb 2007 : Column 994
appropriate for Parliament to scrutinise the approval criteria for AMHPs, who will carry out
important functions under the Bill in England, and for the National Assembly for Wales to
scrutinise the approval criteria in Wales. The criteria in regulations will include the competencies to
be demonstrated before a person can be approved. The regulations for England are currently
available in draft form in the House Library.
The amendments also address the approval of training courses for AMHPs. The Bill makes local
social services authorities responsible for approving AMHPs, but makes it clear that the directions
about approval will include courses to be completed both before approval can be given and once an
AMHP is approved—the so-called refresher courses. These will be similar to those currently
undertaken by approved social workers, or ASWs. The General Social Care Council, or GSCC, and
the Care Council for Wales, or CCW, have agreed to approve initial training courses for England
and Wales respectively.
We intended to specify in the directions that the GSCC and the CCW should approve these courses.
However, as the requirement is to be in regulations, we think that we should take this opportunity to
- 92 -
be more specific in the Bill about what is intended. We therefore propose to amend the Bill to
provide that regulations may make provision that the courses that a person must complete before he
can be approved by a local social services authority, and while he is approved, may be approved by
persons set out in the regulations or by the GSCC or the CCW under their new power given by new
Section 114A.
It is currently the intention to allow only the GSCC or the CCW to approve initial training courses
for AMHPs, but these amendments will ensure that courses may be approved by another body
specified in the regulations if, in the future, the GSCC or the CCW no longer wish to approve these
courses. At that time, the regulations could be amended to allow an alternative suitable organisation
to carry out this function. The regulations will also set out arrangements for refresher courses,
which may be approved less formally.
We believe that it is appropriate for the approval arrangements for AMHPs to be in regulations, and
I thank the members of the committee for their diligence and advice on this matter. I beg to move.
Baroness Barker: My Lords, I thank the noble Baroness for her helpful introduction to this series
of amendments. I want to ask two questions. First, I go back to a point I raised in Committee. Is it
envisaged that an AMHP can be contracted by a social services department from a trust and will the
question of conflict of interest be dealt with in these regulations or in others? Secondly, given that
AMHPs will come from a range of disciplines, including psychology, psychotherapy, occupational
therapy and so forth, is it envisaged that the General Social Care Council will not oversee their
approval but that other professional bodies will do so? Alternatively, will the approval of all
AMHPs come under one body, the General Social Care Council, even though we know that that
body
19 Feb 2007 : Column 995
may not continue to perform that function in the future? I am confused about whether one body or
more than one body will do this, or is the noble Baroness outlining a transitional arrangement? That
is not the clearest of questions and I am sorry for that.
Baroness Royall of Blaisdon: My Lords, AMHPs will be independent professionals acting on
behalf of LSSAs. In their training that independence will be continually stressed. On the responsible
bodies, I understand that the GSCC will regulate the training for all the professionals, and in Wales
the CCW will do so. There will be just the one body.
Baroness Barker: My Lords, that is very helpful. I thank the noble Baroness.
On Question, amendment agreed to.
[End of Approved Mental Health Professionals]
Baroness Royall of Blaisdon moved Amendments Nos. 22 to 24:
Clause 18, page 12, line 3, at end insert—
“(5A) Provision made by virtue of subsection (5)(b) above may relate to courses approved
or provided by such person as may be specified in the regulations (as well as to courses
approved under section 114A below).
19 Feb 2007 : Column 996
- 93 -
(5B) An approval by virtue of subsection (5A) above may be in respect of a course in
general or in respect of a course in relation to a particular person.”
Clause 18, page 12, line 4, leave out from “to” to end of line 5 and insert “make regulations
under subsection (4) above includes power to make different provision for different cases or
areas”
Clause 18, page 12, line 5, at end insert—
“( ) In this section “the appropriate national authority” means—
(a) in relation to persons who are or wish to become approved to act as approved mental health
professionals by a local social services authority whose area is in England, the Secretary of State;
(b) in relation to persons who are or wish to become approved to act as approved mental health
professionals by a local social services authority whose area is in Wales, the Welsh Ministers.”
On Question, amendments agreed to.
Lord Hunt of Kings Heath: My Lords, I beg to move that consideration on Report be now
adjourned.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned at 10.22 pm.
Report Stage – Monday, 26 February 2007
3.25 pm
The Minister of State, Department of Health (Lord Hunt of Kings Heath): My Lords, I beg to
move that the Bill be now further considered on Report.
Moved accordingly, and, on Question, Motion agreed to.
[Children in adult settings & vote]
Lord Williamson of Horton moved Amendment No. 25:
After Clause 21 , insert the following new Clause—
“Children and young people
After section 142 of the 1983 Act insert—
“142A Admission to age appropriate setting
In the case of an application for admission for assessment and treatment for a mental
disorder, whether voluntary or not, in the case of any child or young person under the age of
- 94 -
18 years, a clinician with specialist training in child or adolescent mental health shall assess
the needs of the child or young person and a PCT or equivalent health board shall provide
for such services and accommodation as are sufficient for the particular needs of that child
or young person.
142B Medical assessment by a CAMHS specialist prior to imposition of compulsion for a
child or young person
In the case of a minor under the age of 18, who is admitted for assessment under section 2 or
admitted for treatment under section 3, one recommendation as specified in these sections
shall, except in an emergency where no child or adolescent mental health specialist is
available, be made by a qualified child and adolescent registered medical practitioner.
142C Clinical supervisor
Wherever under any provision of this Act a responsible clinician is to be appointed if the
patient is a minor under 18 that clinician shall, except in an emergency where no child and
adolescent mental health specialist is available, be a child and adolescent mental health
specialist.””
The noble Lord said: My Lords, as this is the first amendment I have moved at this stage of the Bill,
I should like to say that I appreciate the efforts the Minister has made to respond to the many points
which rained down during Committee. I think we can say that there are at least some rays of
sunshine—I hope we will see them on this amendment and on others. The Minister knows,
however, that I and other noble Lords who have put their name to the amendment attach much
importance to it, which concerns children and young people exclusively.
The first part of the amendment deals with the requirement to treat children and young persons
under the age of 18 in a way appropriate to their needs. The public might think that this is so selfevident that we should not have to debate it on the Floor of the House. However, we know that
despite the very great improvements in mental health care and services in recent years, in practice
children and young persons with mental health problems and disorders are not always treated in an
age-appropriate setting. My noble friend Lord Patel of Bradford gave some shocking examples
when he spoke in Committee, and the very recent report by the Children’s Commissioner, entitled
Pushed into the Shadows, has some more.
26 Feb 2007 : Column 1367
In presenting this Bill, the Government have given Parliament the right opportunity to improve the
present situation for children and young people. We know that many mental health problems come
about in the teenage years and that the best assessment and care at this time and the confidence of
the patient in his or her treatment can give longer-term benefits, and perhaps help to reduce the
revolving-door phenomenon under which mental health patients go in and out of hospital, which it
is one of the Bill’s objectives to reduce.
More specifically, the amendment requires first that for children and young persons under the age of
18, when there is an application for admission and treatment for a mental disorder, there should be
an assessment by a medical practitioner with specialist training in child or adolescent mental health;
and secondly that the health authority or equivalent health body,
“shall provide for such services and accommodation as are sufficient for the particular needs
of that child or young person”.
- 95 -
We find this quite appropriate to the Bill, as did our Scottish colleagues when they included the
same words in Section 23 of the Mental Health (Care and Treatment) (Scotland) Act 2003, thereby
setting an excellent precedent.
We recognise that in proposing including the appropriate treatment test in the criteria for detention,
the Government have recognised that there is a problem and sought to provide a partial remedy. To
that extent, there is common ground between us. But the effect could be that if the primary care
trust did not provide care in a CAMHS unit and an adult unit was deemed not safe, the child or
young person could not be detained and would not get the place of safety which might be necessary.
Nor does the Government’s approach deal with children or young people to be admitted on a
voluntary basis. Our approach is more direct and, in our view, more reliably effective.
3.30 pm
At an early stage, the Minister indicated that it is not appropriate to put services on the face of the
Bill. We are frankly baffled by that argument. As a former civil servant, I feel tempted to say that it
must have been invented by a civil servant. The Mental Health Act, as amended by this Bill, is
littered with service provisions, which is a good thing. As Rosie Winterton, the Minister of State,
made clear on 30 January in the all-party parliamentary group: “This Bill is about making sure that
people get the care they need”. Good for Rosie. In any event, in this amendment we are not talking
about a newly differentiated group of people, such as market gardeners, asylum seekers or circus
artists, but proposing an amendment for children and young people. In almost every sphere of our
society we differentiate services for children and young people—for example, children’s hospitals,
school buses, young offender institutions, the Children Act and so on.
The two remaining parts of this amendment are complementary to the first. They deal with medical
assessment by a children and adult mental health
26 Feb 2007 : Column 1368
specialist, and clinical supervision by a similarly qualified specialist for children and young persons
under the age of 18. The Minister will note that for practical reasons these requirements can be
over-ridden in case of urgency or emergency.
Finally, despite the Government’s good intentions, which we recognise, neither the code nor the
Government’s policy guidance has protected the children who have been admitted to adult wards in
past years and we are not convinced that a reiteration in the code will make much difference, which
is why we invite the Government to put this provision in the Bill. I beg to move.
Earl Howe: My Lords, I cannot better the case put forward by the noble Lord, Lord Williamson, in
favour of this amendment, but I should like to express my firm support for it and to add some
emphasis to a number of the points that he has so ably made. I begin by saying how much I endorse
his arguments in favour of an age-appropriate setting for children and young people under the age
of 18. This seems a classic example of a win-win amendment. We are all aware of real horror
stories involving children who are sent to adult wards for treatment, and who are then molested and
traumatised by adult patients. The experiences endured by young people in such circumstances are
often terrible.
However, it is not only those horror stories that this amendment is about. It is about that central, key
issue which has surfaced and resurfaced throughout our debates on this Bill; namely, that fear of the
mental health care system engendered by traumatic experiences of whatever nature carries with it
the potential for wholesale disengagement from mental health services in the future. The moment
- 96 -
we see that happening—it happens often—there is only one consequence. The child or young
person will not wish to seek help from anyone—they are turned off. They will hide their symptoms
and carry on in a state of acute mental distress until they have reached crisis point. The irony is that
having reached that crisis point, they are more likely to be treated under compulsion—so the trauma
repeats itself.
The acuity of need among some young people carried over into adulthood is a cause for grave
concern. Recent research has shown that almost 78 per cent of adult service users receiving
intensive services had received a diagnosis before the age of 18; 60 per cent had received such a
diagnosis before the age of 15. Those figures underline the importance of making sure that children
and young people with mental health problems receive the services that are appropriate to their
needs and which make them want to trust and use those services in the future if they need to.
The Minister may well fall back on the standard response by saying that this is an amendment about
service provision, but I hope he will see that it is not just about that. It is about doing the thing that
Ministers have repeatedly said that they want this Bill to do; namely, to make sure that people get
the care they need when compulsion has to be used. The Minister said in Committee that it was
difficult to
26 Feb 2007 : Column 1369
specify services to a particular group. I must say that I did not really follow that argument; when I
think of all the Bills that we have debated in this House over the past few years relating to children
and services to children, I wonder where that argument came from.
Nobody doubts the Government’s sincerity in wanting to see better mental health services for
children and young people. We hear the right things being said, both in the code of practice and the
children’s NSF, but we know from the royal college, the Children’s Commissioner and the noble
Lord, Lord Patel, in Committee that neither policy guidance nor the code has delivered the desired
results. Good practice is, regrettably, not the norm.
Research published in the BMJ shows that more than one-third of all young people admitted to
hospital for a mental illness are admitted to a general psychiatric or paediatric ward. Something
more needs to be done. We know that the implementation of standard 9 in the NSF is receiving
what the Minister, Ivan Lewis, called unprecedented priority, and that resources are being put into
that whole area with the aim of solving the problem over the next two years. That is what Mr Lewis
has said—and, if it is so, there really should be no argument about giving statutory backing to the
notion of an age-appropriate setting. For once, we are not faced by funding constraints, because the
funding has already been allocated, so I hope that the Minister will be receptive and sympathetic to
everything that the noble Lord, Lord Williamson, argued for.
Baroness Meacher: My Lords, I begin my brief remarks with an acknowledgment that the
Government’s injection of funds into the health service over the past seven years has enabled some
very significant improvements in in-patient services for children and young people. In east London,
where I am the chairman of a mental health trust, we opened last year a purpose-built and beautiful
new unit for children and young people, with 15 in-patient beds and six day places. We are very
proud of the service that we can now provide, but my staff tell me how incredibly lucky we are.
They are appalled at how children are treated up and down the country in places where, sadly,
boroughs and trusts do not have the facilities that we have.
The reality is that the number of general NHS CAMHS beds has increased by only 4 per cent
between 1999 and 2006. The result is that many areas still admit children and young people to adult
- 97 -
wards and rely on the private sector, where the young person may be many miles from home and
the cost may be exorbitant. Until last year, we were in that position; we were placing children from
the east end of London down in Sussex or Berkshire. Noble Lords can imagine how often parents
could visit those children—and there was no chance of the children coming by day, which is very
important for some categories of disorder, such as anorexia.
We know from the Children and Young Person’s Inpatient Evaluation Study of in-patient care for
eight to 18 year-olds that in-patient care is effective for very severe levels of disorder. In some of
these cases, we
26 Feb 2007 : Column 1370
can prevent the situation getting out of control and becoming absolutely chronic. In the study, the
children showed considerable recovery, which was clinically significant, and family relationships,
which are so crucial to a child’s well-being, improved—and the improvement continued over a oneyear follow-up period.
In supporting this amendment, I am mindful of the conclusion of the Department of Health’s Every
Child Matters report that CAMHS,
“should expect to achieve by the mid-point of the NSF cycle the elimination of the use of
adult wards for all but a few older adolescents who find themselves associating more readily
with young adults”.
This amendment seeks only to ensure that sufficient priority is given to achieving the objectives set
out in the Government’s own report.
The Minister for Care Services, Ivan Lewis, agrees with us. He said that,
“we should be seeking a situation where no child ends up in an adult ward environment”.
He went on to say that,
“that should be our ... mission”.
It is our mission today.
One of the central tenets of medicine is that health services should not do harm. But the Children’s
Commissioner, Professor Sir Al Aynsley-Green, said he feared that children could be more
damaged than helped by the experience of being on an adult psychiatric ward. As someone who
makes a point of regularly meeting patients and staff on adult wards, I share that view. The reality
of adult in-patient wards today is that staff are managing in-patients with ever more serious and
complex psychiatric disorders. Anyone who can be managed in the community is managed by one
of the community teams, even if that involves daily visits—three or four visits a day—and hours of
every day being spent in that person’s home. The result is that any in-patient is likely to be severely
disturbed. You do not have the sort of balance that you had 10 years ago where you had a number
of reasonably stable patients and others who were a bit more disturbed. Today, everybody in those
wards is a severely disturbed person. Thus, it is ever more urgent to avoid children and young
persons being placed in a highly volatile adult in-patient environment.
In Committee the Minister suggested that the Mental Health Act was concerned with the legal
processes around mental health and that:
- 98 -
“It is much more difficult to move on from there to specifying services to be provided to a
certain group”.—[Official Report, 15/1/07; col. 559.]
In fact, proposed new Sections 142B and 142C in the amendment refer exclusively to detained
young people. The Bill is very clear about who will be involved in the assessment of adults under
the Act. It seems entirely in keeping with the spirit of the Bill that it should specify that
appropriately qualified clinicians must be involved in the assessment of young people. Proposed
new Section 142A refers to voluntary patients under the age of 18. In view of the seriousness of the
consequences of inappropriate placement of these young persons, it seems reasonable to extend the
scope of the clause as proposed. I hope that the Minister will give the amendment sympathetic
consideration.
26 Feb 2007 : Column 1371
Lord Northbourne: My Lords, I support the amendment. Noble Lords who spoke made the case
clearly. It seems to me absolutely incredible and shocking that vulnerable children are put in the
very highly disturbed atmosphere of an adult ward. I hope that the Minister can encourage us to
think that that will not happen in the future.
Baroness Walmsley: My Lords, I wish to make it quite clear that these Benches support the
amendment. Such was the enthusiasm of your Lordships for the amendment that there was no room
to add my name to it, but these Benches enthusiastically support it.
The British Government are a signatory to the UN Convention on the Rights of the Child, which
states that,
“every child deprived of liberty shall be separated from adults unless it is considered in the
child’s best interest not to do so”.
I know that the Government are doing their very best to implement that responsibility. In fact, great
progress has been made within the criminal justice system to do that. We also know that it is the
Government’s intention that children should be in age-appropriate settings when they have mental
health treatment.
Like the noble Earl, Lord Howe, I am relieved to be able to support the amendment without having
to make any additional spending commitment. It is clear from Ivan Lewis’s statements that the
Government have earmarked the necessary resources to go that step further so that no child will
need to go into an adult ward in future.
If we needed any proof that this amendment were necessary, we have only to read the report of the
Children’s Commissioner, to which reference has been made. The Minister says that the
amendment seeks to enshrine good practice in the Bill; the Children’s Commissioner’s report makes
it clear that that is necessary.
3.45 pm
Baroness Murphy: My Lords, I have added my name to the amendment. I do not want to speak
further about the humanity behind it because I think that almost everyone in the House is agreed on
that and it was well exposed today. I want to talk about the practicalities.
I know that the Government are concerned about amendments that dictate how services should be
provided and about the possible extra cost that might suddenly be imposed. In reality, however, we
- 99 -
have imposed special legislation for, for example, high-security patients, maternity services and
cancer services, so there is absolutely no reason why we should not dictate what services are
necessary.
In terms of practicality, what generally happens is that a child is admitted in an emergency; that is
when the situation arises whereby they go into a completely unsuitable adult ward. In practice, all
that has to happen is that the primary care trust agrees with the local mental health service that they
will, for the moment, until the local facilities have been built,
26 Feb 2007 : Column 1372
commission a certain number of emergency service beds. Indeed, that happens in most places where
they commission emergency service beds from a range of young people’s facilities to ensure that in
an emergency someone can make the decision about admission, and the money is there to fund it
without question.
The money is being spent already because the person is admitted, so you already have the charge
against an admission. Although the cost of a child’s admission to a specialist unit is slightly higher,
the cost overall is broadly similar. All the amendment would do is signal to mental health services
and primary care trusts that they have to make the arrangements. It does not signify that they should
make a different sort of service.
This does not happen at the moment because of a handful of services that simply do not comply; it
is evident from the Mental Health Act Commission reports that this is not a generalised problem but
a problem with a very few authorities. We are not asking for anything complicated here. I support
the amendment.
Baroness Howe of Idlicote: My Lords, I have listened to what has been said on the amendment,
and I took part in the debate on Friday on palliative care, where the argument was that if you got rid
of the postcode lottery it would put palliative care above other services. This amendment clearly
does not do that for these services; there is every reason to put this in the Bill. Having heard some
of the stories today, and having seen some of them in the paper, I believe that this is something that
the Minister must surely agree to.
Lord Ramsbotham: My Lords, I have tabled amendments concerning one part of the population
that needs special treatment, which is those in custody. No group in custody is more in need of
improvements to current mental health care than people of juvenile or young offender status—that
is, those between the ages of 15 and 21. The services that they get are frankly awful, because there
are simply not enough adolescent psychiatrists or trained adolescent nurses available to give the
treatment that they need. The assessments are not there. All the things that are set out in the
amendment, if adopted, should be adopted on behalf of all those young offenders who get into the
hands of the criminal justice system. I strongly support the amendment, because it sets out a very
clear blueprint for what the authorities should provide, so I hope that it will be accepted.
The Lord Bishop of St Edmundsbury and Ipswich: My Lords, I add my strong support to the
amendment, which is very important. It is to do with focusing the response to young people with
particular needs. Lying in the background is the problem that mental health services so often are the
poor relation in local health authorities. Therefore, young people can be disadvantaged twice. One
hopes that good practice in the field will be encouraged, but statutory provision, which would give
strength to that, is practically needed, as we have heard.
26 Feb 2007 : Column 1373
- 100 -
Lord Hunt of Kings Heath: My Lords, this has been a short but highly interesting debate. I sense
that the House wishes to come to a view on this subject as quickly as possible.
I thank the noble Lord, Lord Williamson, for his very kind remarks. He has raised some serious
matters about the way in which children and young people are treated by our mental health services
under the legislation. He identified, as did the noble Earl, Lord Howe, some of the real challenges in
ensuring that appropriate services are provided to these vulnerable young people. I also very much
take the point that the right reverend Prelate made; he raised the concern that, traditionally and
historically, mental health services have not received their due. As he put it, statutory provision is a
way of ensuring that that happens. Noble Lords will be weary of me expressing concerns about, in
essence, putting statutory requirements in the Bill to provide services, but that is a genuine issue
that has to be faced up to.
The noble Baroness, Lady Howe, referred to one of the best debates that I have taken part in; it took
place in your Lordships’ House on Friday. I very foolishly tempted the noble Lord, Lord Carlile, to
engage with me on the issue of palliative care services. On Friday, all of us—apart from me, once
again—were arguing that palliative care is so important. I could have taken the words that the noble
Lord, Lord Ramsbotham, used about mental health services in Committee and simply inserted the
words “palliative care”.
There are six areas for short debate on today’s selection list, all of which will be very interesting if
we get to them. However, in all of them, noble Lords will argue that those are the areas that deserve
priority. There is a genuine issue about how to provide these services, which are so important. We
are dealing with such vulnerable people and there have clearly been major defects in the provision
of services in the past; I refer to young people being looked after on adult psychiatric wards
although they are vulnerable in the way that the noble Earl, Lord Howe, described. Those are major
challenges but they are not solved simply by waving the magic wand of legislation that says, “That
will happen no more”. That is the issue that separates us.
We have discussed Scotland on a number of occasions and all of us are interested in, and will be
interested in observing in the years ahead, the different approaches and the lessons to be learnt from
each system. Section 23 of the Scottish mental health Act requires a child to be placed in ageappropriate accommodation. However, that has not led to the ending of children being placed on
adult psychiatric wards in Scotland. My understanding is that the Mental Welfare Commission for
Scotland reported in the past quarter that admissions of children to non-specialist wards including
adult wards had risen, not fallen. That is not a criticism that I make of Scotland or the Scottish
approach. All I suggest is that noble Lords should bear in mind that simply passing legislation that
says, “It will not happen”, does not mean that the service automatically follows.
26 Feb 2007 : Column 1374
Lord Northbourne: My Lords, will the Minister admit that all that we as parliamentarians have the
power to do is, alas, to pass legislation? It is up to the Government to make the thing work.
Lord Hunt of Kings Heath: My Lords, I say very respectfully to the noble Lord that that really is a
get-out.
Noble Lords are using our debates—I think that this is my seventh day of debate, although other
noble Lords had a further debate at Second Reading—to identify issues and problems that have
been in mental health provision for many years. They are clearly seeking to use this occasion to
press the Government as much as possible to improve the provision of mental health services. I well
- 101 -
understand that that is what this is about. Indeed, if I were back on the Back Benches, I have no
doubt that I would be joining in those debates, as noble Lords know that I have a long-standing
interest in the provision of better mental health services. However, any Minister standing here still
needs to say that, although it would be very easy if parliamentarians could simply pass Bills and
amendments saying, “This must be the priority”, that cannot be done, because overall discretion has
to be given to the Secretary of State to provide services. The Secretary of State must then do his or
her best to ensure that those services are provided.
Lord Carlile of Berriew: My Lords, I am puzzled as to why the noble Lord keeps using the word
“priority”. Those of us who support the amendment, and indeed other comparable amendments, are
trying to set standards, not priorities over other things. Surely the word “priority” is rather
misleading; if anything, it is a parity, not a priority.
Lord Hunt of Kings Heath: My Lords, I do not agree with that. It seems to me that the code of
practice, to which there is statutory reference, is the ideal place to embody standards. If in NHS
legislation a Secretary of State is given a general duty to provide services but you detail in specific
legislation a statutory requirement in relation to a particular aspect of the service, surely a provider
of services is then left with certain statutory provisions that say, “In a certain area, you must provide
services”, whereas the entire NHS services are governed by a more general duty. In that sense, by
specifying in one area that a particular service must be provided, you are prioritising that service.
I think that noble Lords probably have the gist of my argument and I see that I have been as
convincing as ever. I would only say that, as I am glad to report and as other noble Lords have
acknowledged, there has been a tremendous advance in providing services for children and young
people in the mental health field. We are seeing more in-patient beds being commissioned and more
resources being spent. Indeed, the Royal College of Psychiatrists’ research unit provides some
evidence of that. Noble Lords have referred to the comments of my honourable friend Mr Ivan
Lewis; we are committed to doing everything that we can to improve those services.
26 Feb 2007 : Column 1375
Baroness Meacher: My Lords, does the Minister regard a 4 per cent increase between 1999 and
2006 in general CAMHS beds as sufficient, bearing in mind the enormous importance, which I
think he accepts, of providing the right kind of services to very young people who become mentally
ill?
Lord Hunt of Kings Heath: My Lords, I think that I said earlier that major challenges remain to be
faced. I would never claim that the provision of those extra beds is sufficient, but it is an indicator
of the improvements that are being made, alongside other improvements in relation to CAMHS and
mental health services generally. The Government’s view is that we signalled our intent to improve
services. We believe that the code of practice is the right way to indicate to the health service how
those services should be provided and, as I have indicated, we are very wary of accepting the kind
of amendment and approach put forward by the noble Lord, Lord Williamson, this afternoon.
Baroness Masham of Ilton: My Lords, should not the rights of the child be paramount?
Lord Hunt of Kings Heath: Yes, my Lords, and that is made absolutely clear in the code of
practice. Of course, there is no question about providing as good a service as we can for children
and young people, but I do not think that that alters the arguments in relation to the amendment.
4 pm
- 102 -
Lord Williamson of Horton: My Lords, I am grateful to the Minister for his reply. I am sure that
his motivation is very similar to our own. We are trying to improve care and provide appropriate
care for children and young people.
I noted that the Minister pressed two points. He said that putting the amendment in the Bill is no
guarantee that it will happen. We all know that one cannot just put something into a Bill and assume
that it will happen the next day—most of our legislation probably falls into that category. However,
we still believe that it is right to put it into the Bill.
Before the Minister rose, I tried to answer the point about the specific position of children.
Throughout much of our society and in legislation, we treat children and young people quite
separately. I do not believe that this is comparable with various other points that might be raised
about setting services. I noted that the Minister said that if he returned to the Back Benches he
would perhaps join in these debates.
Lord Hunt of Kings Heath: My Lords, to ensure that I do not return to the Back Benches very
soon, I need to clarify that. Of course, I would not support the amendment, but I was responding to
a general comment from the noble Lord, Lord Northbourne, that of course the passage of a Bill is an
ideal way in which to press the Government to improve services in the particular area that is under
discussion.
26 Feb 2007 : Column 1376
Lord Williamson of Horton: My Lords, I thank the Minister for that clarification. I do not want
him on the Back Benches; I want him on the Front Bench, as there is plenty more business to come
on which he can give us a helpful hand. In the mean time, I consider that this amendment ought to
be in the Bill. I beg leave to test the opinion of the House.
4.01 pm
On Question, Whether the said amendment (No. 25) shall be agreed to?
Their Lordships divided: Contents, 201; Not-Contents, 126.
Division No. 1
CONTENTS
Addington, L.
Alderdice, L.
Alliance, L.
Alton of Liverpool, L.
Ampthill, L.
Anelay of St Johns, B.
Astor, V.
Astor of Hever, L.
Attlee, E.
Baker of Dorking, L.
Barker, B.
Beaumont of Whitley, L.
- 103 -
Bell, L.
Best, L.
Blaker, L.
Bledisloe, V.
Bonham-Carter of Yarnbury, B.
Bowness, L.
Bradshaw, L.
Bragg, L.
Bridgeman, V.
Bridges, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Bruce-Lockhart, L.
Buscombe, B.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Carlile of Berriew, L.
Chadlington, L.
Chidgey, L.
Chorley, L.
Colville of Culross, V.
Colwyn, L.
Cope of Berkeley, L.
Cotter, L.
Craig of Radley, L.
Crisp, L.
Cumberlege, B.
Darcy de Knayth, B.
De Mauley, L.
Denham, L.
Dholakia, L.
D'Souza, B.
Dykes, L.
Eccles of Moulton, B.
Eden of Winton, L.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Erroll, E.
Ezra, L.
Falkland, V.
Fearn, L.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Fraser of Carmyllie, L.
Freeman, L.
Garden, L.
Gardner of Parkes, B.
Glasgow, E.
Glentoran, L.
- 104 -
Goodhart, L.
Goodlad, L.
Greaves, L.
Greengross, B.
Greenway, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Hanningfield, L.
Hayhoe, L.
Higgins, L.
Hogg, B.
Holme of Cheltenham, L.
Hooper, B.
Howard of Rising, L.
Howarth of Breckland, B.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hurd of Westwell, L.
Hylton, L.
James of Blackheath, L.
Jay of Ewelme, L.
Jenkin of Roding, L.
Kalms, L.
Kirkwood of Kirkhope, L.
Laing of Dunphail, L.
Lamont of Lerwick, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Lindsay, E.
Linklater of Butterstone, B.
Liverpool, E.
Livsey of Talgarth, L.
Lucas, L.
Luke, L.
Macfarlane of Bearsden, L.
MacGregor of Pulham Market, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mar, C.
Mar and Kellie, E.
Marlesford, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
26 Feb 2007 : Column 1377
Meacher, B.
Methuen, L.
- 105 -
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Monson, L.
Moore of Lower Marsh, L.
Morris of Bolton, B.
Murphy, B. [Teller]
Murton of Lindisfarne, L.
Naseby, L.
Neuberger, B.
Newby, L.
Newton of Braintree, L.
Northbourne, L.
Northbrook, L.
Northover, B.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Palmer, L.
Palumbo, L.
Patel of Bradford, L.
Patten, L.
Pilkington of Oxenford, L.
Plummer of St. Marylebone, L.
Prashar, B.
Quinton, L.
Ramsbotham, L.
Rawlings, B.
Razzall, L.
Redesdale, L.
Rees, L.
Rennard, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rotherwick, L.
Russell-Johnston, L.
Saatchi, L.
St. Edmundsbury and Ipswich, Bp.
St John of Fawsley, L.
Saltoun of Abernethy, Ly.
Sandberg, L.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Shaw of Northstead, L.
Shephard of Northwold, B.
Shutt of Greetland, L.
Smith of Clifton, L.
Steel of Aikwood, L.
Steinberg, L.
Stern, B.
Stevens of Ludgate, L.
Stewartby, L.
- 106 -
Stoddart of Swindon, L.
Strathclyde, L.
Swinfen, L.
Taverne, L.
Taylor of Holbeach, L.
Taylor of Warwick, L.
Tenby, V.
Teverson, L.
Thatcher, B.
Thomas of Swynnerton, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Thomson of Monifieth, L.
Tonge, B.
Tope, L.
Tordoff, L.
Trefgarne, L.
Trenchard, V.
Trimble, L.
Trumpington, B.
Tugendhat, L.
Tyler, L.
Vallance of Tummel, L.
Verma, B.
Waddington, L.
Wakeham, L.
Walmsley, B.
Walpole, L.
Walton of Detchant, L.
Warnock, B.
Watson of Richmond, L.
Wedderburn of Charlton, L.
Wilcox, B.
Williamson of Horton, L. [Teller]
Windlesham, L.
Young of Hornsey, B.
NOT CONTENTS
Acton, L.
Adonis, L.
Ahmed, L.
Alli, L.
Amos, B. [Lord President.]
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashley of Stoke, L.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Bhatia, L.
- 107 -
Bhattacharyya, L.
Billingham, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell-Savours, L.
Carter of Coles, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Corston, B.
Crawley, B.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Drayson, L.
Dubs, L.
Eatwell, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. [Lord Chancellor.]
Falkender, B.
Farrington of Ribbleton, B.
Filkin, L.
Fyfe of Fairfield, L.
Gale, B.
Golding, B.
Goldsmith, L.
Gould of Brookwood, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Gregson, L.
Griffiths of Burry Port, L.
26 Feb 2007 : Column 1378
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howie of Troon, L.
- 108 -
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
King of West Bromwich, L.
Lea of Crondall, L.
Lipsey, L.
Lockwood, B.
Lofthouse of Pontefract, L.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mason of Barnsley, L.
Mitchell, L.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
O'Neill of Clackmannan, L.
Patel of Blackburn, L.
Paul, L.
Pendry, L.
Quin, B.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rea, L.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Royall of Blaisdon, B.
Sawyer, L.
Scotland of Asthal, B.
Sheldon, L.
Simon, V.
Soley, L.
Stone of Blackheath, L.
Strabolgi, L.
Temple-Morris, L.
Thomas of Macclesfield, L.
Thornton, B.
Tomlinson, L.
Triesman, L.
Truscott, L.
- 109 -
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Uddin, B.
Varley, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Whitaker, B.
Williams of Elvel, L.
Winston, L.
Woolmer of Leeds, L.
Young of Norwood Green, L.
Resolved in the affirmative, and amendment agreed to accordingly.
[End of Children in adult settings & vote]
5.06 pm
Consideration of amendments on Report resumed.
[Conflicts of interest]
Baroness Barker moved Amendment No. 26:
After Clause 21, insert the following new Clause—
“Conflicts of interest
(1) The 1983 Act is amended as follows.
(2) In section 11 (general provisions as to applications), after subsection (1) insert—
“(1A) No application mentioned in subsection (1) above shall be made by an approved
mental health professional if the circumstances are such that there would be a potential
conflict of interest for the purposes of regulations under section 12A below.”
(3) In section 12 (general provisions as to medical recommendations), in subsection (1),
after “this Part of this Act” insert “or a guardianship application”.
(4) In that section, for subsections (3) to (7) substitute—
“(3) No medical recommendation shall be given for the purposes of an application
mentioned in subsection (1) above if the circumstances are such that there would be a
potential conflict of interest for the purposes of regulations under section 12A below.”
(5) After that section insert—
“12A Conflicts of interest
- 110 -
(1) The appropriate national authority may make regulations as to the circumstances in
which there would be a potential conflict of interest such that—
(a) an approved mental health professional shall not make an application mentioned in section 11(1)
above; (b) a registered medical practitioner shall not give a recommendation for the purposes of an
application mentioned in section 12(1) above.
(2) Regulations under subsection (1) above may make—
(a) provision for the prohibitions in paragraphs (a) and (b) of that subsection to be subject to
specified exceptions; (b) different provision for different cases; and (c) transitional, consequential,
incidental or supplemental provision.
(3) In subsection (1) above, “the appropriate national authority” means—
(a) in relation to applications in which admission is sought to a hospital in England or to
guardianship applications in respect of which the area of the relevant local social services authority
is in England, the Secretary of State; (b) in relation to applications in which admission is sought to a
hospital in Wales or to guardianship applications in respect of which the area of the relevant local
social services authority is in Wales, the Welsh Ministers.
26 Feb 2007 : Column 1393
(4) References in this section to the relevant local social services authority, in relation to a
guardianship application, are references to the local social services authority named in the
application as guardian or (as the case may be) the local social services authority for the area
in which the person so named resides.”
(6) In section 13 (duty to make applications for admission or guardianship), in subsection
(5), after “section 11(4) above” insert “or of regulations under section 12A above”.”
The noble Baroness said: My Lords, the amendment deals with conflicts of interest. In Committee, I
said that in Section 12(3) of the 1983 Act there was a lack of clarity on how conflicts of interest
were dealt with. The amendment deals with two issues relating to that matter. The first is the
circumstances in which a doctor, because of their position in relation to the applicant, the patient or
another practitioner providing medical recommendations, may not provide medical
recommendations. That is particularly important because of the proposals in the Bill to change the
role of the ASW and the widening of the new role of associated mental health professional.
Secondly, for that reason, the amendment includes a regulation-making power that will enable the
Government, perhaps at some time in the future, to widen the scope of the law concerning conflict
of interest to a larger group of professionals than has been the case. There is need for complete
clarity on how conflicts of interest are dealt with, particularly when people may be members of the
same multi-disciplinary team. The regulation-making power would enable the provisions to be
expanded at a future date without any need to resort to primary legislation. In moving the
amendment, I place on record my thanks to officials who have helped with its formulation. I beg to
move.
Baroness Royall of Blaisdon: My Lords, I thank the noble Baroness, Lady Barker, for tabling such
a sensible set of amendments. We agree with her that the regulation-making power that the
amendment would introduce would give the flexibility to bring up to date the provisions about
conflicts of interest for professionals concerned with applications, and to keep these provisions up
- 111 -
to date in the light of future developments in service delivery. I hope that your Lordships will join
me in supporting the amendment.
On Question, amendment agreed to.
[End of Conflicts of interest]
[Amendment No. 27 not moved.]
[Criminal Justice, bail]
Lord Carlile of Berriew moved Amendment No. 28:
After Clause 21, insert the following new Clause—
“CHAPTER 2A Criminal justice system amendments
Court Mental Health Report for those remanded on bail
Before section 35 (remand to hospital for report on accused’s mental condition) of the 1983
Act, insert—
“34A Remand on bail for a mental health report
(1) In relation to the Crown Court, this section applies to a person who—
(a) has been sent for trial before the court for an offence punishable with imprisonment and has not
yet been sentenced or otherwise dealt with for it (unless he has been convicted of the offence and
the sentence is fixed by law),
26 Feb 2007 : Column 1394
(b) has been committed to the court to be sentenced for such an offence and has not yet been
sectioned or otherwise dealt with for it, or (c) has been committed to the court under section 43 and
has not yet been dealt with under that section.
(2) In relation to a magistrates’ court, this section applies to a person who has appeared
before the court charged with an offence punishable on summary conviction with
imprisonment and has not yet been sentenced or otherwise dealt with for it.
(3) Subsections (4) and (5) apply if the court—
(a) remands on bail a person to whom this section applies, and (b) is satisfied on the evidence of a
registered medical practitioner that there is reason to suspect that the person is suffering from
mental disorder.
(4) The court may require the appropriate authority to arrange for an approved clinician to
prepare a report on—
(a) the person’s mental condition, or (b) the appropriate medical treatment for that condition, (or
both) in order to assist the court in dealing with the person for the offence.
- 112 -
(5) The court may specify any particular matters which are to be included in the report
(including an assessment of the risk posed by the person to members of the public).””
The noble Lord said: My Lords, I shall speak to this amendment only briefly; we have already had a
debate on its subject matter. I simply want to glean whether there has been any movement on the
part of the Government. The proposal would provide a smoother passage of some cases through the
courts. I hope that the Government share that aim. I beg to move.
The Minister of State, Department of Health (Lord Hunt of Kings Heath): My Lords, the noble
Lord invites me to give a short response. I am afraid that we were not moved by the noble Lord’s
eloquence in Committee or when he described himself as astonishingly and wretchedly depressed
by my response, because there is legislative provision to achieve what he wants. However, I accept
that behind his amendment is an issue about problems that the courts have had. That is down to
good practice rather than legislative requirement. I understand some of the practical issues that face
courts when dealing with the kind of problems that the noble Lord raised in Committee.
My department and the Home Office commissioned a report on the state of court psychiatric
schemes, which was published in September 2005. The report found that provision had grown up
piecemeal. We need to do all that we can to even out that practice. Models of good practice in cooperation and commissioning are being identified and evaluated. A pilot has also been established
based on a service level agreement for the provision of psychiatric reports to courts in the southwest. Evaluation of the pilot is due for completion in 2008 and will provide a good practice guide
for other regions of the Courts Service.
We are not complacent about the issues that the noble Lord raised. We believe that this is best done
through best practice. A pilot is in place and we will use its results to spread good practice
throughout the court system.
Lord Carlile of Berriew: My Lords, I am grateful to the Minister for his very helpful response. As
he realises, I am concerned about ensuring uniform good
26 Feb 2007 : Column 1395
practice in courts. Delays with psychiatric reports are very much to the detriment of mentally
disordered defendants and cause delays in courts, which these days—in the Crown Court at least—
cost between £15,000 and £20,000 a day to run. I hope that the pilot will prove successful and that,
if it is, it can be rolled out quickly throughout all the circuits so that these difficulties will no longer
occur. Having regard to the Minister’s helpful assurance of progress, I beg leave to withdraw the
amendment.
Amendment, by leave, withdrawn.
[End of Criminal Justice, bail]
[Amendment No. 29 not moved.]
Lord Hunt of Kings Heath moved Amendments Nos. 30 and 31:
After Clause 25, insert the following new Clause—
“Electro-convulsive therapy, etc.
- 113 -
After section 58 of the 1983 Act insert—
“58A Electro-convulsive therapy, etc.
(1) This section applies to the following forms of medical treatment for mental disorder—
(a) electro-convulsive therapy; and (b) such other forms of treatment as may be specified for the
purposes of this section by regulations made by the appropriate national authority.
(2) Subject to section 62 below, a patient shall be not be given any form of treatment to
which this section applies unless he falls within subsection (3) or (4) below.
(3) A patient falls within this subsection if—
(a) he has consented to the treatment in question; and (b) either the approved clinician in charge of
it or a registered medical practitioner appointed as mentioned in section 58(3) above has certified in
writing that the patient is capable of understanding the nature, purpose and likely effects of the
treatment and has consented to it.
(4) A patient falls within this subsection if a registered medical practitioner appointed as
aforesaid (not being the approved clinician in charge of the treatment in question) has
certified in writing—
(a) that the patient is not capable of understanding the nature, purpose and likely effects of the
treatment; but (b) that it is appropriate for the treatment to be given; and (c) that giving him the
treatment would not conflict with— (i) an advance decision which the registered medical
practitioner concerned is satisfied is valid and applicable; (ii) a decision made by a donee or deputy
or by the Court of Protection; or (iii) an order of a court.
(5) Before giving a certificate under subsection (4) above the registered medical practitioner
concerned shall consult two other persons who have been professionally concerned with the
patient’s medical treatment, and of those persons one shall be a nurse and the other shall be
neither a nurse nor a registered medical practitioner nor the responsible clinician.
(6) Before making any regulations for the purposes of this section, the appropriate national
authority shall consult such bodies as appear to it to be concerned.
(7) In this section—
(a) a reference to an advance decision is to an advance decision (within the meaning of the Mental
Capacity Act 2005) made by the patient; (b) “valid and applicable”, in relation to such a decision,
means valid and applicable to the treatment in question in accordance with section 25 of that Act;
26 Feb 2007 : Column 1396
(c) a reference to a donee is to a donee of a lasting power of attorney (within the meaning of section
9 of that Act) created by the patient, where the donee is acting within the scope of his authority and
in accordance with that Act; and (d) a reference to a deputy is to a deputy appointed for the patient
by the Court of Protection under section 16 of that Act, where the deputy is acting within the scope
of his authority and in accordance with that Act.
(8) In this section, “the appropriate national authority” means—
- 114 -
(a) in a case where the treatment in question would, if given, be given in England, the Secretary of
State; (b) in a case where the treatment in question would, if given, be given in Wales, the Welsh
Ministers.””
After Clause 25, insert the following new Clause—
“Section (Electro-convulsive therapy, etc.): supplemental
(1) Part 4 of the 1983 Act (consent to treatment) is amended as follows.
(2) In section 58 (treatment requiring consent or a second opinion)—
(a) in subsection (1)(b), after “section 57 above” insert “or section 58A(1)(b) below”, and (b) in
subsection (3)(b), before “has not consented to it” insert “being so capable”.
(3) In section 59 (plans of treatment), for “or 58” substitute “, 58 or 58A”.
(4) In section 60 (withdrawal of consent), for “or 58”, substitute “, 58 or 58A”.
(5) In section 61 (review of treatment)—
(a) in subsection (1), for “or 58(3)(b)” substitute “, 58(3)(b) or 58A(4)”, and (b) in subsection (3)—
(i) for “or 58(3)(b)” substitute “, 58(3)(b) or 58A(4)”, and (ii) for “and 58” substitute “, 58 and
58A”.
(6) In section 62 (urgent treatment)—
(a) in subsection (1), for “and 58” substitute “, 58 and 58A”, and (b) in subsection (2), for “or 58”
substitute “, 58 or 58A”.
(7) In section 63 (treatment not requiring consent), for “, not being treatment falling within
section 57 or 58 above,” substitute “, not being a form of treatment to which section 57, 58
or 58A above applies”.”
On Question, amendments agreed to.
[Advocacy - young people]
Lord Williamson of Horton moved Amendment No. 32:
After Clause 25, insert the following new Clause—
“Independent mental health advocacy: young persons
After section 125 of the 1983 Act insert—
“125C Independent mental health advocacy: young persons
(1) The appropriate authority must arrange, to such extent as it considers necessary to meet
all reasonable requirements, for help from persons to be known as independent mental
health advocates, to be available for patients aged 18 years or under.
- 115 -
(2) The help available under the arrangements must include—
(a) help in obtaining information about and understanding— (i) what medical treatment is being
provided to the patient; (ii) why it is being provided; (iii) under what authority it is being provided;
(iv) the requirements of this Act which apply in connection with the patient’s treatment; and
26 Feb 2007 : Column 1397
(v) the rights which can be exercised by or in respect of him under this Act, and (b) help (by way of
representation or otherwise) in exercising those rights.””
The noble Lord said: My Lords, this amendment was tabled in Committee by the noble Baroness,
Lady Howells of St Davids, whose name is again attached to it, and spoken to by the noble
Baroness, Lady Massey, who has now moved on to even greater things.
I draw the Minister’s attention to the fact that this is what I described on the last occasion as the
mini-amendment; that is, it deals with advocacy for children and young people. It does not deal with
the other question of advocacy. I did not retable that amendment, although the noble Lord, Lord
Patel of Bradford, has done so, and it is not grouped with this amendment. I will deal only with the
question of advocacy for children.
We have convincing evidence that children and young adults who are admitted to in-patient units do
not always have information and are subject to confusion and fear. That is shown, for example, by
the report from the office of the Children’s Commissioner, which was specific on this point. I want
briefly to refer to two elements. The Children’s Commissioner made it clear that difficulties did
arise and quoted specific examples, so we are basing our argument to a considerable degree on facts
and evidence. Many of the young people were dissatisfied and unhappy about the in-patient
services. In one case, no education was made available, although the patient was well within the
“young” category for education. We believe that a specific requirement to make advocacy available
to children and young people would be helpful in preventing them from switching off from the
services and that it would provide a better basis for treatment and rehabilitation.
The amendment is in line with the national service framework for children. In our view, the costs
would not be high—perhaps about £100,000 a year for compulsory admissions and up to £1 million
for all children and young people. In so far as the Minister may insist that much of this work is
already being done, the new expenditure is correspondingly lower.
I have brought this amendment forward now because it would be helpful to have the Minister’s
assurances about the action that the Government and the authorities are encouraging in this area.
That is what we are interested in; we want to know that we are making progress in making
advocacy for children and young people more widely available. I beg to move.
5.15 pm
Baroness Howells of St Davids: My Lords, when I proposed this amendment in Committee, I
related to noble Lords the story of a young Asian girl. Today, I will not give any further case studies
but, as I am sure noble Lords know, there are many more.
The amendment would give children and young people under the age of 18 the right to receive
counsel from an independent advocate when they are about to be, or have been, admitted for
treatment for a mental
- 116 -
26 Feb 2007 : Column 1398
health problem, whether the admission is voluntary or under compulsion. Independent advocacy for
young people provides a safeguard against the improper use of powers to detain or treat them. All
children and young people should have the right to know what will happen to them if they are
admitted to an in-patient unit, what to expect on admission and when they might be discharged.
With an advocate present, a young person can be sure that someone independent of their parents,
carers or clinicians will communicate their interests and ensure their right of appeal. It is very
difficult for children to overturn any parental responsibility. It requires a court order, so children
who do not feel that their views are being heard by parents and staff might have to seek extreme
measures in order to be heard, possibly compromising their own beliefs.
I feel sure that the Government should look very carefully at the amendment and come back to the
House with something that they may feel is more appropriate. However, we feel strongly that this
amendment should receive the best care and attention from the Minister.
Baroness Walmsley: My Lords, we on these Benches also support the amendment. The Minister
will know that there are precedents for groups of people having a right to advocacy services. The
Mental Capacity Act 2005 enshrines the right to advocacy for people lacking capacity through the
independent mental capacity advocacy service, and the Adoption and Children Act 2002 gives
young people looked after by the state the same right to advocacy.
There are many reasons why a young person may need an independent person on whom they can
rely to express their wishes to the appropriate authorities. I am particularly concerned about the
right to education. The Children’s Commissioner report contains a case study about a young woman
called Amber, who was not offered any education during her seven-month stay on the adult
psychiatric ward, despite being 14 at the time of her admission. A child’s right to education and all
the other rights are matters with which an advocate would be able to help them. An advocate could
also ensure that children were properly informed, understood the treatment that was being made
available to them, and many other matters. I support the noble Baroness, Lady Howells, on this.
Lord Ramsbotham: My Lords, this amendment has an application to those in custody and possibly
to those who come into the criminal justice system during the period before custody.
Baroness Royall of Blaisdon: My Lords, this amendment is intended to ensure that advocacy
services are available to all patients with a mental disorder aged 18 years or under. We recognise
that there are certain groups of patients who will receive particular benefit from advocacy services
and we have noted the views of the Children’s Commissioner. The noble Lord, Lord Patel of
Bradford, and my noble friend Lady Howells of St Davids brought to our attention in our debate in
Committee the experience of people from black and minority-ethnic
26 Feb 2007 : Column 1399
communities treated under the Mental Health Act. In particular, they stressed that:
“Culturally competent advocacy can improve therapeutic alliances and find culturally,
socially and racially responsive resolutions to conflict where it arises”.—[Official Report,
17/1/07; col. 691.]
The noble Lords were, of course, absolutely right, in that properly trained, specialist advocacy can
be of greater benefit to particular groups of patients than more generalised advocacy. The work that
- 117 -
the Government have commissioned to develop training and standards for advocates, which is
currently under way, is looking at the needs of particular groups from within the population of
patients with mental disorder.
In Committee, we said that we would take away the issue of advocacy and consider the best way to
make advocacy services available. I want to assure the House that we are making progress. I am
unable to confirm how we will proceed, as we wish to continue with that work before the
Government announce how they will take this issue forward. We have listened not only to the
strength of feeling expressed by noble Lords in Committee but also to their comments about the
need for a service that will take account of the differing needs of different groups of patients.
The amendment would provide that all patients aged 18 years or under would have access to these
services. The Act provides that a patient is any person suffering from a mental disorder or appearing
to suffer from a mental disorder. That person need not be in hospital or under the supervision of a
specialist doctor. There is a wide range of conditions and situations that fit into that definition. Of
course, I do not wish to underestimate the significance of any person who is living with a mental
health problem. However, I wonder whether this would provide for a service that would effectively
target resources to those in need.
I am aware that many younger child patients who are in hospital for their mental disorder are not
subject to the Mental Health Act where their parents provide consent for their treatment, as my
noble friend Lady Howells outlined. In considering the best way to provide for advocacy services, I
well understand that it is important that this group must not be forgotten.
As we said in Committee, we are considering the best way in which advocacy services can be made
available, taking into account the differing needs of different groups of patients. We wish to see
tailored advocacy services, which will bring the maximum benefit to all groups of patients,
including children and young persons. We have not, however, been able to get provisions ready in
time for Report stage.
The Government will continue to develop their proposals on how patients with mental disorder who
are subject to the Mental Health Act can access appropriate advocacy services and we will bring
them back when the Bill is considered in the other place. Indeed, in considering this subject we
would be very happy to discuss our proposals with noble Lords who are interested in doing so. We
very much hope that they will help us on this. As such, I hope that the noble Lord will feel able to
withdraw his amendment.
26 Feb 2007 : Column 1400
Lord Williamson of Horton: My Lords, I thank the Minister for that encouraging reply. I said at
the beginning that this was a mini-amendment, and we always hope that the Government will make
a mini-effort to accept it. We recognise, however, that the Government have gone quite a long way
in following up their proposal at an earlier stage to consider the best ways to make advocacy
services available. We note that their provisions are not yet ready for Report and that the
Government expect to come forward with something to clarify their position when the Bill is in the
other place. That is certainly encouraging for us.
This has been a short debate, but I am sure that the Minister feels that there is a strong feeling that
this would be valuable and that we could make progress and improve on it. We shall be following
the debates in the other place with great care and we hope that something of value will come
forward. In the mean time, I beg leave to withdraw the amendment.
- 118 -
Amendment, by leave, withdrawn.
[End of Advocacy - young people]
[Amendment No. 33 had been withdrawn from the Marshalled List.]
Baroness Neuberger moved Amendment No. 33A:
After Clause 25 , insert the following new Clause—
“Nominated person
(1) Section 26 of the 1983 Act (definitions of “relative” and “nearest relative”) is amended
as follows.
(2) In the cross-heading preceding section 26 after “functions of relatives” insert “, persons
acting as relatives”.
(3) Before subsection (1) insert—
“(A1) In this Part of the Act “named person” means—
(a) any person described in subsection (1) below; or (b) any person not described in subsection (1)
below who is the patient’s carer, who has been nominated by the patient in accordance with
subsection (1A) below.
(B1) In this Part of the Act “carer” has the same meaning as in section 1(1)(a) of the Carers
and Disabled Children Act 2000.”
(4) After subsection (1) insert—
“(1A) A person is a named person in accordance with this subsection if—
(a) the nomination is signed by the nominator; (b) the nominator’s signature is witnessed by a
prescribed person; (c) the prescribed person certifies that, in the opinion of the prescribed person,
the nominator— (i) understands that the effect of nominating a person to be the named person will
give him the role of nearest relative; and (ii) has not been subjected to any undue influence in
making the nomination.
(1B) A nomination under subsection (1) above may be revoked by the nominator in
accordance with subsection (3) below.
(1C) The nomination of a named person is revoked in accordance with this subsection if—
(a) the revocation is signed by the nominator; (b) the nominator’s signature is witnessed by a
prescribed person; and (c) the prescribed person certifies that, in the opinion of the prescribed
person, the nominator—
26 Feb 2007 : Column 1401
(i) understands the effect of revoking the appointment of a person as named person; and (ii) has not
been subjected to any undue influence in making the revocation.
- 119 -
(1D) The nomination of a named person shall be effective notwithstanding the nominator’s
becoming, after making the nomination, incapable.
(1E) A person nominated under subsection (1) above may decline to be the nominator’s
named person by giving notice to that effect to—
(a) the nominator; and (b) the local authority for the area in which the nominator resides.”
(5) For subsection (3) substitute—
“(3) In this Part of this Act, subject to the provisions of this section and to the following
provisions of this Part of this Act, the “nearest relative” means, in descending order—
(a) the named person; (b) the person first described in subsection (1) above who is for the time
being surviving, relatives of the whole blood being preferred to relatives of the same description of
the halfblood and the elder or eldest of two or more relatives described in any paragraph of that
subsection being preferred to the other or others of those relatives, regardless of sex.”
(6) In section 26(4) after “his nearest relative” insert “under subsection 3(b) above”.
(7) In section 26(5) for “(3)” substitute “(3)(b)”.”
The noble Baroness said: My Lords, the new amendment takes a much narrower approach than we
took in Committee because we have listened so closely to the Government’s arguments. The Mental
Health Alliance has come up with this amendment, providing the patient with a more restricted
power to choose their nearest relative. The current list of eligible relatives who can take on the role
of nearest relative will be retained. The patient would have the power to nominate their nearest
relative, but only somebody from the current list plus their primary carer. The patient would have to
fill out a legal form and a prescribed person would have to certify that the patient had the capacity
to make this decision. It gives a restricted amount of choice to the patient, but gives some
nevertheless.
The Bill must be amended to allow a patient to nominate their representative to some extent. First,
the nominated person is more likely to be someone in whom the patient has trust and confidence.
Secondly, it would provide greater legal clarity on who the patient’s legal representative is, and
avoid the need for some of the intrusive questioning which certainly goes on during the sectioning
process. Thirdly, it would avoid the unnecessary legal costs of requiring a patient to go to court to
displace a nearest relative they disagreed with.
The Joint Committee on Human Rights also recently reaffirmed the implications of R(E) v Bristol
City Council 2005, where the court held that the provision should be interpreted in accordance with
the patient’s Article 8 ECHR rights, taking her wishes and/or health and well-being into account.
The JCHR said that to ensure compatibility with Article 8, the approved social worker’s duty to
consult the nearest relative about compulsory admission does not apply if the patient objects to that
person being
26 Feb 2007 : Column 1402
consulted. We also know that service users welcomed the 2004 Bill’s provision for a nominated
person and are clear about the importance of the role for them.
- 120 -
I could say a great deal more on the matter, but I hope that I have given your Lordships’ House a
sufficient explanation of why we regard this as so important. I hope that I have also shown that we
have listened closely to the Government’s own concerns about this. I beg to move.
Lord Patel of Bradford: My Lords, I agree with the points raised by the noble Baroness, Lady
Neuberger, and shall add a brief comment. As your Lordships are aware, the Joint Committee on
Human Rights has warned that the Government’s proposals do not give adequate respect for the
patient’s right to private and family life, saying that,
“the Government is laying themselves open to future embarrassing litigation”.
I shall be surprised if the Minister does not, finally, grasp at the solution being offered through this
amendment. The law as it is, and as it will remain under the Government's proposals, leaves too
much that is uncertain and too much to the discretion of individual social workers for an adequate
protection of Article 8 rights.
For example, even after being displaced by a county court, a nearest relative is deemed by case law
to continue to retain—I quote from the 1995 ruling in Surrey County Council SSD v McMurray—a
“legitimate interest” in a patient’s welfare, which,
“should always be paid proper respect by the authorities in making decisions about and
arrangements for the patient's care”.
The law therefore suggests that, even after displacement, a nearest relative may continue to have
some contact with professionals regarding a patient’s circumstances and decisions relating to his or
her care. The only way in which an approved mental health practitioner could avoid a continuing
breach of Article 8 in respect of a patient whose nearest relative has been displaced as unsuitable,
would be to claim that such continued contact would be not “practicable”, relying on the definition
of practicability given in the more recent 2005 Bristol City Council case referred to by the noble
Baroness. To my mind, that places a burden on the social worker that should not in fact arise in any
sensible legal structure. Furthermore, a displaced nearest relative continues to retain the ability,
under Section 29(6) of the Mental Health Act, to apply to the mental health review tribunal annually
on a patient’s behalf.
As such, the proper answer to the Article 8 problems highlighted in past legal challenges is not to
widen the criteria for displacement, but to enable patient choice to determine who the nearest
relative is in the first place.
5.30 pm
Baroness Royall of Blaisdon: My Lords, I am grateful to the noble Baronesses, Lady Barker and
Lady Neuberger, for their work on Amendment No. 33A, which is a considered attempt to address
the concerns that my noble friend Lord Hunt raised on the earlier amendment in Committee. They
have made significant changes.
26 Feb 2007 : Column 1403
However, while it addresses the issue of patients nominating totally inappropriate strangers as their
nearest relative, it still suffers from the difficulties associated with patients having nomination rights
over the person who can block their admission to hospital or discharge them from compulsion.
- 121 -
In Committee, noble Lords made reference to the role of the “nominated person” that we proposed
in the 2004 draft Bill. As your Lordships are aware, that Bill would have abolished the nearest
relative, while the role of the nominated person, which it instituted, was entirely different to that of
the nearest relative. The role of the nominated person was that of a patient representative, so it was
right and proper that the person was chosen by the patient. In the debate, a number of noble Lords
did not accept our concern that a patient nominee would act at the behest of the patient even where
that might not be in line with what they themselves saw as the best interests of that patient. The
noble Baroness, Lady Barker, asked why there was any more reason to believe that a person
nominated by the patient would be more likely to act against the best interests of the patient than
one nominated under any other system.
We are not concerned that a person named by the patient is more likely to act wilfully against the
best interests of the patient, but that a named person is more likely to act at the behest of the patient.
We feel that a person named by the patient is likely to feel an obligation to act in the very way the
patient requests. While this amendment restricts whom the patient can nominate as their nearest
relative, the same concerns apply. The role of the nearest relative is not one based on acting in the
name of the patient, but one that provides for nearest relatives to act in the way that they consider is
right. The process of nomination can introduce an unhelpful and damaging dynamic into the
relationship between the patient and the person who is to exercise the rights of the nearest relative.
SANE has told us that,
“because of the effects of their illness, some patients put considerable pressure on their
nearest relative to stop them being taken to hospital or discharging them once they are there.
The spouses, parents and caring relatives manage this as well as they can”.
It goes on to say that it,
“would be concerned if widening the scope of those who might be able to perform the
functions of the nearest relative could have the effect of alienating family members caring
day in and day out for relatives living with severe and enduring mental health problems—
making family relationships at these difficult times even more fraught and fractured and
possibly compromising the help on which the patient might need to rely in the long term”.
That is not to say that SANE opposes the principle of patient choice. However, it believes that,
“it is also important to protect the status of the nearest relative and distinguish it from that of
other people and advocates”.
We have made it clear that nearest relatives are not patient representatives, and their appointment
should not be made in a way that can place further stress on family relationships at what may
already be an extremely difficult time.
Where detention is for the purposes of treatment, under Section 3 of the Act, the nearest relative is
able
26 Feb 2007 : Column 1404
to oppose the detention. Having decided to retain the general scheme of the current Act, rather than
to replace it entirely, we do not wish to see an end to that important safeguard. Equally, we do not
wish a nearest relative named by the patient to feel obliged to oppose detention because that is the
wish of the patient who nominated him, and, should he fail to oppose that detention, to see the
- 122 -
patient revoke his status as nearest relative only to choose another perhaps more compliant relative
or carer who would order his discharge.
Since we announced our changes we have had correspondence, some from a concerned nearest
relative whose daughter has from time to time been detained. He reports that his daughter is often
angry that he, as her nearest relative, does not use his powers to block her detention or to discharge
her early. He was concerned that our amendments would mean that his daughter would be able to
go to court to have him displaced as a nearest relative, because he would not act to discharge his
daughter if he felt doing that was not in her best interests. We have reassured him on that point.
Various points were made about the JCHR. In its fourth report of the 2006—07 Session it
questioned whether the Government intended the word “suitable” to equate to abuse. That is not the
case. The intention is that it will include, but not be so narrow as to be limited to, nearest relatives
who have a history of abusing or potential to abuse the patient.
Returning to the amendments, I believe that Amendment No. 33A would concern the father of the
patient, to whom I referred, as well as many other conscientious and caring nearest relatives. We
believe that the amendment may inadvertently undermine this safeguard, and has the potential to
cause unwarranted problems in what are often, as your Lordships pointed out during Committee,
complicated family dynamics.
On Amendment No. 35, I recognise that the noble Baronesses, Lady Barker and Lady Neuberger,
wish the nearest relative to have a say in vital decisions affecting the patient. That is
understandable, and in principle we agree. However, Amendment No. 35 is not needed and could
cause real practical problems. In Section 3 of the Mental Health Act 1983, there is a duty on what
will be known as the AMHP to consult the nearest relative on application for admission for
treatment, unless it is impracticable or would involve unreasonable delay. That enables the nearest
relative to exercise his right to block the detention of the patient.
The decision to place a patient on a CTO is quite different in nature to detention under Section 3; it
is a treatment decision. The CTO is essentially an extension of compulsion and, importantly, lessens
the restrictions imposed on the patient. The Act requires consultation with the nearest relative—and
provides a power for the nearest relative to block detention—in decisions where the patient is facing
greater restrictions to his liberty, not fewer. The requirement to consult the nearest relative when a
CTO is made is not consistent with this. Paragraph 31 of Schedule 3 to the Bill amends Section 133
to ensure that the nearest relative is informed where a patient is placed
26 Feb 2007 : Column 1405
on to a CTO, as must occur when a patient is discharged from detention. We therefore believe that
no further requirement to consult the nearest relative is needed. Also, to impose a duty for the
responsible clinician to consult is problematic without an associated power for the nearest relative
to act should they disagree with the decision. What would happen if there were a disagreement
between the nearest relative and the responsible clinician? This amendment gives no power for the
nearest relative to act if such disagreement occurs.
We are also concerned that it would not be right to involve a nearest relative in cases where the
patient objects. To do so may give rise to a breach of the patient’s rights under Article 8 of the
European Convention on Human Rights. Even if the nearest relative were a person named by the
patient—as Amendment No. 33A proposes—it would not always be the case that the patient would
want the nearest relative consulted when a community treatment order is being considered. This
amendment does not provide for the patient to prevent this consultation.
- 123 -
There is already a duty to inform the nearest relative when a CTO is made. We think the best way to
address the question of consultation is via the code of practice, where it is possible to set out the
circumstances where consultation should and should not take place. The draft illustrative code for
England includes material to that effect; we can, of course, consider what else might be needed in
due course and will listen to the views expressed by noble Lords. We consider that there is an
important place for the proper representation of patients. There is a role for a person, or persons, of
the patient’s choice to be able to put forward their views and advocate on the patient’s behalf, as I
described in our last debate.
We have provided guidance to practitioners in the draft illustrative code of practice on when carers
and nearest relatives should be consulted, and the important role that they can play in a patient’s
care and treatment. There will also be further opportunities for stakeholders’ views to be
incorporated before the code is laid before Parliament.
We do not believe that the amendments in question are the appropriate way of achieving effective
patient representation, but that we already have the correct balance in the existing provisions for
carers to be prioritised when determining the nearest relative. I therefore ask that the noble Baroness
considers withdrawing her amendment.
Baroness Neuberger: My Lords, I thank the Minister for her response. She will hardly be surprised
to hear that I am slightly disappointed. We accept part of what she said, particularly her fair point
on Amendment No. 35 about the nearest relative not being able to act on the CTO, which is
something that we will take back and look at. However, we are not convinced by the rest of the
argument. This is a point that goes back to Committee. We are not convinced of the real difference
between mental illness and physical illness or that one does not let a person make even limited
choices about who can act as nearest relative
26 Feb 2007 : Column 1406
on his behalf. We listened to what the Government had to say and limited the list concerned. We
believe that there is enough differentiation in the system between people with physical and mental
illnesses. We think that this is a difference too far, and that it is unnecessarily restrictive. We will
take this away and look at it closely, and we will probably come back at Third Reading. Having
made clear that we are not as yet content, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Community Treatment Orders & vote]
Clause 26 [Community treatment orders, etc]:
Earl Howe moved Amendment No. 33B:
Clause 26, page 15, line 31, at end insert—
“(b) if the responsible clinician is not a medical practitioner, the responsible clinician has arranged
for the patient to be examined by— (i) the registered medical practitioner who has been
professionally concerned with the medical treatment of the patient; or (ii) if no such practitioner is
available, a registered medical practitioner who is an approved clinician; and the medical
practitioner has made a written recommendation in the prescribed form including a statement that in
the opinion of the practitioner the relevant criteria set out in subsection (5) below are met; and”
- 124 -
The noble Earl said: My Lords, in speaking to Amendment No. 33B I shall raise an issue that has
caused considerable and deep divisions between the Government and the mental health community,
namely, the conditions which should determine the threshold of entry on to a community treatment
order. I shall speak also to Amendments Nos. 36A, 47 and 59.
The Minister should note that, in moving this amendment, I do not oppose CTOs outright, even
though there is a strong argument for doing exactly that. If there was one speech in Committee that
summed up the intellectual case against CTOs, it was that of the noble Baroness, Lady Meacher.
The supposed effectiveness of CTOs as proclaimed by the Government is not backed up by any
convincing evidence. Even more serious than that, there is a real risk that the coercive element in
CTOs will undermine the whole basis on which community mental health services are provided
through assertive outreach teams and the rest. Those services depend for their success on positive
engagement and trust. It is very difficult to have benevolent treatment and coercion operating side
by side; indeed, some would say that it is impossible. At the very least, the combination sends a
very mixed message to the patient.
The Minister seems to take it as self-evident that being on a CTO is better for a person than being
detained as an in-patient because it is less restrictive, but he overlooks an important fact: although a
patient may have been ill enough to be placed in hospital at the outset of the process, by the time the
issue of discharge arises, that is no longer the case. At that stage, the issue is whether a person who
is well enough to enter the community should remain under the enforceable and coercive power of
an order. It is by no means self-evident that, for the generality of
26 Feb 2007 : Column 1407
patients, continuing coercion represents an ethical or therapeutically effective way forward.
We have to be clear that these orders are likely to be exceedingly restrictive in some cases.
Clinicians will need to think carefully before imposing them because there is no doubt that any
CTO will interfere with a person’s family and private life, sometimes severely. Yet the Bill tends to
encourage the opposite approach—the noble Baroness, Lady Meacher, made this point—because it
is framed in such a way as to put pressure on professionals to impose CTOs, even when they may
not really wish to, purely to cover their own backs. I do not think we should put professionals in
that position, which is one of the main reasons why I feel we owe it to them and patients to define
as closely as we can the cohort of people whom we are prepared to accept could be made subject to
an order.
5.45 pm
The amendments take as their starting point a premise that I am not sure the Minister has ever really
accepted, which is that, leaving aside people who fall within Part 3, patients who retain full
decision-making powers in relation to their own treatment should normally be allowed to take
control over their own lives, just as anyone with any other health condition should be able to. Only
where decision-making powers are impaired is there an ethical case for compulsion. Furthermore, I
believe that those who are not a serious risk to others can be treated satisfactorily by the existing
provisions of the Mental Health Act relating to leave of absence and supervised discharge.
Although supervised discharge is little used, it has been proven to be effective in most of the cases
in which it has been used over a wide range of clinical and social problems. It is suited to patients
who are in hospital under compulsion and whose condition has stabilised to the extent that they do
not require close hospital supervision but who are not well enough to be fully discharged from
medical care. It is a supportive regime that strengthens rather than weakens the therapeutic
- 125 -
relationship. One of the interesting features of the research into the use of Section 25 supervised
discharge is that it improves compliance with medication. The absence of a coercive element does
not seem to matter. Apart from the fact that that finding calls into question the whole rationale for
CTOs, it provides good grounds for leaving out Clause 30 and retaining the option of supervised
discharge. If one accepts that—and the vast majority of mental health professionals do—it is clear
that we need to exclude from the ambit of CTOs any patient who represents no serious risk to others
and can take balanced decisions about his or her own treatment.
So what kind of patient is a CTO potentially suited to? The Government’s argument for the use of
CTOs has focused on cases where a person poses a serious risk to others. The thought is that this
group of people will benefit particularly from the blend of supervision, care and control and the
possibility of recall that a coercive outpatient system provides. As far as hard evidence goes, the
jury is still out on whether that assumption is valid in the sense of CTOs being able to prevent
homicides. We simply do not know. However,
26 Feb 2007 : Column 1408
in an effort to be fair to the Government, I am willing to take their belief at face value for the
purposes of the Bill. Accordingly, the amendment states that those who pose a serious risk of harm
to others should be liable to be placed under a CTO; furthermore, they should be people whose
ability to make decisions about receiving medical treatment is significantly impaired. In a nutshell,
we are dealing with patients who do not, at the relevant time, accept that they are a risk to others,
despite being advised that they are, because of the nature of their mental disorder. In the accepted
jargon, they lack insight.
However, we need to go further than that. If we allow CTOs to be imposed on every patient who
falls into that category, we run a big risk of leaving very wide scope for these powers to be used on
people who will derive no benefit from them. There is simply no evidence that, for the majority of
patients, coercion in the community works better than an informal regime of community
supervision and care. If coercion is used, it must be justifiable.
For that reason, I have also argued under the amendments that we should seek to restrict the
application of CTOs to a relatively narrow group, commonly referred to as revolving-door patients.
They are defined by a three-pronged criterion. The first prong is that, on at least one occasion for
the current admission under Section 3, the person has refused to accept medical treatment for a
mental disorder. The second is that, when appropriate medical treatment has been refused in the
past, there has been a significant relapse in his condition justifying compulsory admission to
hospital. The third is that, when the person was admitted compulsorily, medical treatment resulted
in an improvement in his condition or prevented its deterioration.
The conditions therefore link the previous refusal of treatment which results in admission with the
proven benefit to the patient from the treatment proposed. They then require a relapse to have
occurred because of the failure to continue with the medication. Furthermore, the doctor must be
clear that the patient is unlikely to continue with the medication without an order. In that way, the
legislation will make clear to professionals that the key criteria are: previous relapse, proven
therapeutic benefit from treatment and the need—the need—for compulsion.
The amendment also stipulates that any decision to place a patient on a CTO must involve a
medical practitioner. That is because only a medical practitioner can take what are essentially
medical decisions—what is the person's mental disorder, how severe it is, how likely it is that the
patient will comply with medication, the risk of relapse and so on.
- 126 -
I do not expect the Minister to change his position on the issue. He has previously resisted any
narrowing-down of the criteria for CTOs. We are therefore likely to remain as far apart at the end of
this debate as we were at the beginning. That is not a happy state of affairs, but it does not detract
from my belief that the amendments represent the right way to proceed, for all the reasons that I
have given. I therefore beg to move.
26 Feb 2007 : Column 1409
Lord Carlile of Berriew: My Lords, we support the amendments moved by the noble Earl for the
reasons that he has given. I simply want to remind the House of Chapter 5 of the report of the joint
scrutiny committee. We heard a great deal of evidence about community treatment orders. As
paragraph 205 of Volume 1 of our report records, on balance, we came down in favour of limited
compulsion in the community. We heard a great deal of evidence from both home and abroad, and
we invite the Government to take the view that the amendments provide an appropriate restriction
on a power which, we on the committee fear, might become overused as a substitute for residential
compulsory treatment.
Lord Alderdice: My Lords, I want briefly to appeal to the Minister and the House to recognise that
these are complex disorders and situations. It is a fantasy to believe that the first time that a
psychiatrist meets such a patient they will know precisely what is the diagnosis; that, even if they
do, they will know what is the best treatment; and, even more contentiously, that they will be clear
about the prognosis. To believe otherwise is to be in cloud-cuckoo-land. These are complex,
difficult disorders. Until one sees how they work out in practice—whether patients relapse; whether
particular treatments work; whether compulsion, inpatient or outpatient treatment works best—
other than from the experience of working with the patient, one cannot know. To embark on
compulsion from an early stage is, at best, unwise and, at worst, professionally irresponsible.
The Lord Bishop of Worcester: My Lords, I just add a brief word about the contrary pull of
compulsion and therapy. Obviously, I am not a medical practitioner, but I often have to deal with
people who need to, if I may put it this way, do some work on themselves if they are to flourish and
make a continued good contribution.
I have never known a case where compulsion assisted in that process. It is always to be undertaken
with the greatest reluctance because of its counter-therapeutic effect. The patient—the person—is
deflected from an engagement with the forces within that have to be engaged with into a
preoccupation with the forces of the authority that has required the patient to have treatment. As I
say, that is counter-therapeutic; therefore, the narrowing of the criteria—imposing statutory
reluctance, as it were—seems to be of the first importance.
Baroness Murphy: My Lords, I am very disappointed overall. Although I have moved a long way
personally in my response to the Government's proposals—I no longer oppose them fully—we do
not even have agreement to the constraints that would restrict community treatment orders to the
very group that the Government have said they want to be subject to the orders. I remain very
concerned that a young person who has a first breakdown—20 per cent will never have a relapse—
may be placed on an order, come into hospital and remain on an order at intermittent review,
without ever having had the opportunity to demonstrate their non-compliance with the medication.
26 Feb 2007 : Column 1410
At the very minimum, we should have some restriction that enables that person to demonstrate that
they can build a relationship and become engaged in treatment. As the legislation stands, that may
not be possible. What signal does that send to young people in the community, the very ones whom
- 127 -
we want to encourage into treatment at the first symptoms of their illness? I strongly support the
amendments to constrain the orders and still believe that we would catch under the order the very
people whom we would like to engage in treatment for longer.
Lord Hunt of Kings Heath: My Lords, this has been a short, although, if I may say so, sober
debate on supervised community treatment, which is one of the pillars of the legislation. We had a
good debate on the principles of supervised community treatment in Committee. Although noble
Lords opposite and those on the Cross Benches have concerns about supervised community
treatment, they have also made clear—the noble Earl, Lord Howe, certainly, did—that supervised
community treatment is not opposed outright.
However, there is clearly a big gap between the Government and other noble Lords on the benefits
that we believe supervised community treatment will bring and on other views. For instance, the
noble Earl, Lord Howe, talked about the coercive element of supervised community treatment
undermining confidence and trust and referred to the positive nature of assertive outreach work. He
suggested that that might be undermined by the use of supervised community treatment. Clearly, the
Government disagree. We think that supervised community treatment is complementary to the
progressive work being done in the development of mental health services. I reiterate the comment
that I made in Committee, which the noble Lord read back, that if supervised community treatment
can be provided as an alternative to compulsory treatment in hospital, surely that must be to the
advantage of many patients.
6 pm
Before I give my technical response to the amendments, I should point out that supervised
community treatment, in contrast with that in other countries, can apply only to those patients who
would already have been detained under the Mental Health Act. The strong criteria in Clause 26, on
page 15, against which a person must be tested for a community treatment order, very much mirror
the criteria that would apply to a person having to be detained in hospital in the first place. I know
that we are going to debate some of the safeguards in the next two groups of amendments, but I
must say at this point that the amendment ignores what the Government believe are very strong
safeguards in the Bill for people placed under supervised community treatment. That is my answer
to the noble Lord, Lord Alderdice. Of course I accept his point about the complexity of the issues.
As a lay person, I do not begin to underestimate the difficult decisions that psychiatrists, responsible
clinicians or approved mental health practitioners will have to take, not only in relation to
provisions in the Bill but more generally
26 Feb 2007 : Column 1411
in their work. The fact that a person to whom supervised community treatment applies will have
already been detained under the Mental Health Act is a response to the fear that thousands of people
will suddenly be compulsorily detained in the community. Noble Lords will know that we estimated
that, over five years, it would apply to a few thousand people. We do not believe that it will be
overused or that it will be a substitute for hospital treatment. We believe that supervised community
treatment sets a very positive example for a number of people who have been detained.
There are a number of elements to the amendments that the noble Earl has tabled, some of which
we have debated in earlier stages of the Bill. Amendment No. 33B relates to the role of a medical
practitioner in the decision to place a patient under a community treatment order. It is very
important that provision is made in the Bill for a patient’s responsible clinician and that the ability
to be a responsible clinician has been widened from being simply a medical practitioner. That is a
very important element of the proposals that we put before your Lordships. It is worth making the
- 128 -
point that the responsible clinician alone cannot make the CTO but must have the agreement of an
approved mental health practitioner. Responsible clinicians should consult the multi-disciplinary
team, who will provide the necessary input.
I reiterate a point made by my noble friend on Report: there is no question of the responsible
clinician being able to dictate to a doctor the medication for a particular individual. That cannot
arise. As my noble friend said, the decision must rest with the individual doctor prescribing that
medication. Nothing in the Bill changes that. There are real benefits in having responsible clinicians
who may not be medics but who will be senior professionals in their field and will have
demonstrated the highest skill and expertise in mental health and undergone specialist training. The
skills, experience and expertise will be enshrined in—
Baroness Meacher: My Lords, does the Minister accept that a consultant psychiatrist has had 13
years of training to create the tools for him to make these very difficult judgments? When he
mentions other professionals and training, I think that we are probably assuming that he means
perhaps days or weeks of training. Does he really think that, in the case of someone suffering from a
psychotic illness, anyone other than a psychiatrist, who has had the many, many years of training
and experience that I mentioned, can develop the expertise to make these judgments to impose on
the individual, possibly for very long periods, a requirement to take medications that that clinician
will not understand and the side effects of which that clinician will not understand? Does it not
seem incongruous to the Minister to have people taking decisions that they simply do not have the
competence to take?
Lord Hunt of Kings Heath: My Lords, I simply do not recognise the possibility that the noble
Baroness describes. She referred, for instance, to a few weeks’
26 Feb 2007 : Column 1412
training. Let me disabuse her of that notion immediately. We are talking about people who have
been senior professionals in their particular field for a considerable number of years; I do not want
to specify the exact number. That is the point of directions, which will have the force of law. These
issues are being, and will be, agreed with stakeholders, including the Royal College of Psychiatrists.
Baroness Meacher: My Lords, of course other professionals may have had several years of
training in their professions to develop the tools to enable them to undertake their professional
duties. However, those professionals will be experts on behavioural therapy and all sorts of other
things, but they will not be experts on the treatments that are required by psychotic patients. That is
the concern. I think that many of us in this House will be very happy for, say, a psychologist to be
responsible for making a community treatment order for someone with a personality disorder once
the assessment has been made of that person to ensure that that disorder was not in some way
complicated by a psychotic disorder. My concern is that there is no indication in the Bill that people
with a psychotic disorder should be put under a community treatment order only by someone who
understands the full implications of that decision and the treatment to which that person will be
subjected.
Lord Hunt of Kings Heath: My Lords, the problem with the route that the noble Baroness is
taking is that if a responsible clinician, subject to approval by the approved mental health
practitioner, cannot take certain decisions in relation to a community treatment order, you
undermine the role of that clinician. I do not want to be pushed into a corner and give a definite
statement in response to an instance that she has given, but my general understanding is that, in the
kind of situations that she has described, a consultant psychiatrist is the most likely responsible
clinician. My problem with the amendment is that it is saying in essence that the responsible
- 129 -
clinician cannot in the end accept responsibility. I have received a number of comments from bodies
such as the British Psychological Society and the Royal College of Nursing, as well as from a
consultant psychiatrist, expressing concern that, however much the amendment as proposed is well
intentioned, its ultimate impact will be to undermine the whole concept of the responsible clinician
who in the end has to accept responsibility.
Lord Alderdice: My Lords, I want to draw two issues to the Minister’s attention. First, it is not
possible for the responsible clinician to take responsibility for a medication unless they are qualified
to prescribe it. Secondly, the person who is responsible for prescribing a medication may be in the
position of having to continue to prescribe it within a context that they do not agree with, because it
is required only that there be a consultation. We all know from years of working with Governments
how much consultation can sometimes mean in terms of real decision-making. Therefore, the
medical practitioner will be in the position either of having to continue prescribing a medication
within a context that they do not agree with or of stopping it.
26 Feb 2007 : Column 1413
The medication could not then be prescribed by the responsible clinician if he is not a medical
practitioner because he would not be legally empowered to do so.
Lord Hunt of Kings Heath: My Lords, I made it clear early on that, when a doctor prescribes a
medication, that is clearly the result of the medical judgment of that doctor. I reiterate that. On
coercion, I should have thought that any doctor who was so coerced would be acting against all the
principles that the medical profession holds dear. I just do not see that happening. The point that I
sought to make is that, if we are establishing responsible clinicians in this Bill, we accept that, while
in some cases they may not be medical doctors, in the main they probably will be. Given that, by
agreeing to the amendment proposed by the noble Earl, Lord Howe, where the approval of the
medical practitioner is needed, we would undermine the role of the responsible clinician. It may be
that because of their concerns in this area, noble Lords wish to do that. All that I am seeking to do is
again to draw a distinction between the role of the responsible clinician and that of the medical
practitioner in the decision—
Lord Soley: My Lords, will my noble friend give way, because I am becoming increasingly
confused about this? It has always been my understanding, and I do not see anything in the Bill to
change it, that if a person is to be treated with a drug therapy to deal with a psychosis, for example,
it has to be prescribed by a doctor. It cannot be prescribed otherwise—end of argument and full
stop. On the other hand, in the case of a personality disorder that does not usually require drug
treatment, the patient might require treatments using other skills and abilities that also often require
lengthy periods of training. In those circumstances, a person with medical qualifications is not
necessarily the right individual to make the approach. Therefore, there always has to be a team
approach, because ultimately both groups will be involved. However, it is and always has been
absolutely clear—and would be even if this Bill had not been brought forward—that a person
cannot prescribe a drug therapy unless they are medically qualified.
6.15 pm
Lord Hunt of Kings Heath: My Lords, that is a helpful intervention. My noble friend is right:
nothing in the Bill requires a professional to act beyond their professional competence. A
professional will not be able to make decisions about medication unless they are qualified to do so.
I shall carry on in order to refer to two other aspects of the amendment. The noble Earl, Lord Howe,
referred to concerns that, in effect, clinicians will be forced to err on the side of caution and make a
- 130 -
patient subject to a CTO on discharge from hospital simply to cover their backs. With respect, if a
responsible clinician is considering supervised community treatment, they must make the decision
with reference to the criteria in the Bill and the
26 Feb 2007 : Column 1414
guidance that we will provide on the application of those criteria. We have debated before the issue
of trust in professionals when exercising their judgment to do so fairly, so surely it is right to expect
responsible clinicians to exercise their judgment on the application of the criteria. We need to be
very careful before we accept this caricature of how a supervised community treatment order might
work in practice.
I understand the points made by the noble Earl about aftercare—ACUS, as it is known—and his
argument that this ought to be retained as a way in which supervised aftercare could be provided.
However, the problems are twofold. First, it is clear that it has not been used because neither
professionals nor patients have much confidence in it. We have evidence that it has not worked
well. A study commissioned by my department in 2001 found that take-up was low, largely because
it was seen as bureaucratic and lacking in the necessary powers. For instance, there are no powers to
recall a patient to hospital for treatment. I also say to the noble Earl—and here I go back to our
previous debate where clarity has been called for, particularly for the professionals who are going to
have to operate the legislation—that to have two different systems for the management of mental
disorder in the community would make it more difficult and confusing to clinicians in deciding
which system is more appropriate for their patients.
I fully accept that supervised community treatment is a compulsory regime and should not be taken
lightly. I believe that the stringent criteria set out in the Bill and the safeguards built into supervised
community treatment, along with the judgment of professionals, albeit guided by the code of
practice, will ensure that the clear advantages offered by supervised community treatment will bring
very worthwhile benefits to many patients now being detained in our hospitals. I therefore urge the
noble Earl to reconsider his view.
Earl Howe: My Lords, I am most grateful to all noble Lords who have taken part in this debate and
to the Minister for his reply. He is of the view that we have here a set of provisions that provide an
appropriate gateway into compulsory community treatment. My belief is that the gateway is too
wide, and that is the reason for these amendments. Underlying that division of view between us is a
philosophical divide. If I had to be brutal about the Government’s position on this issue, as indeed
on other issues in the Bill, I would say that it rests on a profoundly paternalistic attitude to mental
health patients. It is an attitude that accepts only grudgingly that the autonomy and decision-making
ability of those with a mental illness matter at all and which would actually much prefer these
people to jolly well accept what is good for them whether they like it or not.
Lord Hunt of Kings Heath: My Lords, I apologise for intervening because I know that the House
wants to reach a decision, but I just want to say that that is not the Government’s view. Ours is not a
paternalistic approach. The noble Earl, Lord Howe, ignores the fact that the patients to whom these
provisions will apply are those who have already been detained under
26 Feb 2007 : Column 1415
the provisions of the Mental Health Act. Supervised community treatment, far from being
paternalistic, will offer a number of patients a greatly enhanced process over simply continuing to
be detained in hospital.
- 131 -
Earl Howe: My Lords, I understand the Minister’s view on this issue. The fact is that we do not
know how many patients will benefit from being on a CTO because the evidence, as I said, is
simply not there, despite all that the Minister said. The evidence that we have is inconclusive, in
that all the studies in this area have been unable to tell whether any beneficial effects of CTOs are
due to the compulsory nature of the order or to the increased community services that are made
available alongside the order. If enhanced community services support better outcomes on a
voluntary basis, as we know they do, the addition of a compulsory order is likely to make no
positive difference to those outcomes; indeed, it may detract from them because of the element of
coercion.
It is not often that I pray in aid the noble Lord, Lord Warner, but it was he who emphasised in
Committee that it is the so-called “revolving door” patients whom these provisions are designed to
help. That is why the amendment proposes that only those patients who fall into the “revolving
door” category are covered by the SCT provisions. The noble Baroness, Lady Murphy, told us
succinctly the dangers of having a wider gateway. In response to the exchanges about the medical
practitioner being involved, these amendments propose that, before a person is put on to a CTO,
two professionals have to agree that that is clinically appropriate. That is all it amounts to.
On an issue of this kind, it is right for me to test the opinion of the House, and I beg leave to do so.
6.22 pm
On Question, Whether the said amendment (No. 33B) shall be agreed to?
Their Lordships divided: Contents, 173; Not-Contents, 140.
Division No. 2
CONTENTS
Addington, L.
Alderdice, L.
Alliance, L.
Anelay of St Johns, B.
Astor, V.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Baker of Dorking, L.
Barker, B. [Teller]
Beaumont of Whitley, L.
Bell, L.
Best, L.
Blaker, L.
Bonham-Carter of Yarnbury, B.
Bottomley of Nettlestone, B.
Bowness, L.
Bradshaw, L.
Bragg, L.
Brooke of Sutton Mandeville, L.
- 132 -
Brougham and Vaux, L.
Burnett, L.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Carlile of Berriew, L.
Chidgey, L.
Cobbold, L.
Colville of Culross, V.
Colwyn, L.
Cope of Berkeley, L. [Teller]
Cotter, L.
Courtown, E.
Craigavon, V.
Cumberlege, B.
Darcy de Knayth, B.
De Mauley, L.
Deech, B.
Denham, L.
Dholakia, L.
D'Souza, B.
Dykes, L.
Eccles, V.
Eden of Winton, L.
26 Feb 2007 : Column 1416
Elliott of Morpeth, L.
Elton, L.
Falkland, V.
Fearn, L.
Feldman, L.
Flather, B.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Garden, L.
Gardner of Parkes, B.
Glasgow, E.
Glenarthur, L.
Glentoran, L.
Goodhart, L.
Goodlad, L.
Greaves, L.
Griffiths of Fforestfach, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Hayhoe, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Hogg, B.
- 133 -
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Hurd of Westwell, L.
Hylton, L.
James of Blackheath, L.
Jenkin of Roding, L.
Jones of Cheltenham, L.
Kilclooney, L.
Kirkwood of Kirkhope, L.
Laing of Dunphail, L.
Lane of Horsell, L.
Lang of Monkton, L.
Lester of Herne Hill, L.
Lindsay, E.
Linklater of Butterstone, B.
Liverpool, E.
Livsey of Talgarth, L.
Luke, L.
Lyell, L.
Lyell of Markyate, L.
MacGregor of Pulham Market, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Maginnis of Drumglass, L.
Mancroft, L.
Mar, C.
Mar and Kellie, E.
Marlesford, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Meacher, B.
Methuen, L.
Miller of Chilthorne Domer, B.
Montagu of Beaulieu, L.
Morris of Bolton, B.
Murphy, B.
Murton of Lindisfarne, L.
Naseby, L.
Neuberger, B.
Newby, L.
Northbrook, L.
Northover, B.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Palmer, L.
Palumbo, L.
Patel of Bradford, L.
Patten, L.
Pilkington of Oxenford, L.
- 134 -
Rawlings, B.
Razzall, L.
Redesdale, L.
Rees, L.
Rennard, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rotherwick, L.
Saatchi, L.
St. Edmundsbury and Ipswich, Bp.
St John of Fawsley, L.
Saltoun of Abernethy, Ly.
Sandberg, L.
Scott of Needham Market, B.
Seccombe, B.
Shaw of Northstead, L.
Sheikh, L.
Shutt of Greetland, L.
Smith of Clifton, L.
Steel of Aikwood, L.
Steinberg, L.
Stern, B.
Stoddart of Swindon, L.
Taverne, L.
Taylor of Holbeach, L.
Taylor of Warwick, L.
Teverson, L.
Thomas of Swynnerton, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tonge, B.
Tope, L.
Tordoff, L.
Trefgarne, L.
Trenchard, V.
Trumpington, B.
Tyler, L.
Vallance of Tummel, L.
Verma, B.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Walmsley, B.
Walpole, L.
Walton of Detchant, L.
Watson of Richmond, L.
Wilcox, B.
Williamson of Horton, L.
Windlesham, L.
Wolfson, L.
Worcester, Bp.
- 135 -
NOT CONTENTS
Acton, L.
Adams of Craigielea, B.
Adonis, L.
Ahmed, L.
Alli, L.
Amos, B. [Lord President.]
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashley of Stoke, L.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Bhattacharyya, L.
Billingham, B.
Bilston, L.
26 Feb 2007 : Column 1417
Birt, L.
Blackstone, B.
Borrie, L.
Bradley, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Campbell-Savours, L.
Carter of Coles, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Corston, B.
Crawley, B.
Cunningham of Felling, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Drayson, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falkender, B.
Farrington of Ribbleton, B.
Filkin, L.
Ford, B.
- 136 -
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Goldsmith, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
King of West Bromwich, L.
Kinnock, L.
Kirkhill, L.
Lea of Crondall, L.
Lipsey, L.
Lockwood, B.
Lofthouse of Pontefract, L.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mason of Barnsley, L.
Maxton, L.
Mitchell, L.
Morgan, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
- 137 -
Morris of Yardley, B.
O'Neill of Clackmannan, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Rosser, L.
Royall of Blaisdon, B.
St. John of Bletso, L.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Sheldon, L.
Simon, V.
Smith of Finsbury, L.
Smith of Gilmorehill, B.
Snape, L.
Soley, L.
Taylor of Bolton, B.
Temple-Morris, L.
Thomas of Macclesfield, L.
Thornton, B.
Tomlinson, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turner of Camden, B.
Varley, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Whitaker, B.
Whitty, L.
Williams of Elvel, L.
Woolmer of Leeds, L.
Young of Norwood Green, L.
Resolved in the affirmative, and amendment agreed to accordingly.
[End of Community Treatment Orders & vote]
6.33 pm
[Amendments Nos. 34 and 35 not moved.]
[Amendment No. 36 had been withdrawn from the Marshalled List.]
- 138 -
Earl Howe moved Amendment No. 36A:
Clause 26 , page 15, line 39, leave out from beginning to end of line 7 on page 16 and
insert—
26 Feb 2007 : Column 1418
“(b) except where a patient is detained under Part 3 of this Act (a patient concerned in criminal
proceedings or under sentence), the patient’s ability to make decisions about the provision of
medical treatment is significantly impaired because of his mental disorder; (c) it is necessary for the
protection of others from serious harm that he should receive treatment; (d) subject to his being
liable to be recalled to hospital for medical treatment such treatment can be provided without his
continuing to be detained in a hospital and it cannot be provided unless he is liable to be recalled to
hospital; (e) the patient has, on at least one occasion previous to the present admission under section
3, refused to accept medical treatment for a mental disorder and— (i) when appropriate medical
treatment has been refused there has been a significant relapse in his mental or physical condition
justifying compulsory admission to hospital; and (ii) medical treatment following compulsory
admission alleviated or prevented a deterioration in his condition; and (f) appropriate medical
treatment is available for him.”
On Question, amendment agreed to.
[Amendments Nos. 37 and 38 not moved.]
[Community Treatment Order appeals & vote]
Earl Howe moved Amendment No. 39:
Clause 26 , page 16, leave out line 34
The noble Earl said: My Lords, we come now to some further, very major, concerns about
supervised community treatment. I shall speak also to Amendments Nos. 41ZA and 50A.
Clause 26 will allow the responsible clinician to require a patient on a CTO to abstain from a
particular conduct. I suggest that this provision is misplaced, possibly even dangerous. My concern,
which has been very widely expressed, is that this particular condition of a CTO could make
supervised community treatment into some form of psychiatric ASBO. I can do no better here than
quote the Mental Health Act Commission, which has argued:
“Our serious concern would be that perhaps over time those clauses would start to be used in
a way that would provide controlling arrangements, perhaps for young black people who are
thought to be drug addicts and they are placed on what would be the equivalent of an AntiSocial Behaviour Order but run under the Mental Health Act”.
Part of the problem is that the Bill does not go into detail about what sort of conditions might be
thought reasonable. One condition might be that the person must not go down to the pub; another
might be that he must not be outside his house between certain hours; another might even be that he
is not to leave his house at all and that he is to be kept there effectively under house arrest.
The potential for a very serious interference with a patient’s private life is considerable. There is no
guidance in the Bill to say to the responsible clinician, “You must exercise your powers in line with
public law principles and the patient’s convention rights under the Human Rights Act and the
- 139 -
ECHR”. Of course the code of practice will be there, and I am sure that the Minister will point that
fact out, but it will have a limited legal effect and cannot be thought sufficient to provide protection
to patients in this regard.
26 Feb 2007 : Column 1419
There are other concerns as well. Carers' organisations are worried that they would be left to police
these conditions. Even the National Forum for Assertive Outreach, which is a strong supporter of
CTOs, has agreed that it would be morally wrong to place conditions on a CTO such as preventing
a patient visiting a pub or begging.
This is, above all, a moral issue, but it is also about having clarity in the law and the dangers of a
lack of clarity.
Let me turn to the other two amendments. These would allow a patient on a CTO to appeal to the
mental health review tribunal against any of the conditions imposed. They would also allow a
tribunal to recommend that any of the conditions could be varied or suspended when an application
has been made to the tribunal for the patient to be discharged. In both cases, the tribunal would have
the power to recommend that the responsible clinician should make changes to the conditions. If
this is not done, the tribunal would have the power to order a further hearing.
We are dealing with a human rights issue of considerable significance. The Bill does not permit the
tribunal to review the conditions imposed on a CTO—it can only discharge someone from a CTO
altogether. In my submission, that is simply not acceptable. We can easily imagine a situation in
which very restrictive conditions have been applied to a CTO—restrictions that are so great as to
amount to a breach of the patient’s Article 5 rights. Why should the tribunal not be able to review
them?
There could be a slightly different situation in which a patient does not dispute the need for a CTO
but objects very much to a particular condition which might amount to a breach of a convention
right. It could be argued that there is a breach of Article 13 in that there is no effective remedy
available.
The remedy that the Minister will no doubt refer to is the independence of the approved mental
health practitioner. I have considerable doubts about the degree to which the AMHP will be able to
exercise true independence as a member of a clinical team which includes the responsible clinician.
Are we really saying that proper training will do the trick? The Government clearly did not think
that that would be enough when they published the 2004 draft Bill, which made provision for the
tribunal to approve conditions and treatment plans. Again, the Minister may say that the code will
ensure that the conditions are kept to the minimum necessary. However, the code will not prevent
the imposition of a curfew or similar restrictions which, cumulatively, might amount to a
deprivation of liberty.
There is a real lack of external safeguard, which contrasts with other areas where Article 8 of the
convention is engaged, such as the Regulation of Investigatory Powers Act 2000 and the Prevention
of Terrorism Act 2005. I am sure that the Minister will not disagree that restrictions on conduct
should be proportionate and that conditions should not be imposed which collectively amount to a
deprivation of liberty. The question is whether we can rest content if these requirements do not
appear on the face of the statute. I do not believe that we can. Therefore, I beg to move.
26 Feb 2007 : Column 1420
- 140 -
Lord Carlile of Berriew: My Lords, I support these amendments for all the reasons which have
been so cogently expanded by the noble Earl. I just want to emphasise one part of what he said;
namely, the legal issue which it seems to me arises if there is not a remedy before the mental health
review tribunal. The analogy with the Prevention of Terrorism Act 2005 is good. It was recognised
when control orders were introduced that it was essential that a due process be provided; that is, a
judicial procedure which would be regarded as a remedy under Article 13 of the convention. That
due process has been found to be useful. There have been cases—for example, R v E, in which
judgment was received in the past few days—in which the judge reviewing the control order
conditions declared that some of them were unlawful and therefore invalid, and a new control order
had to be issued.
If the Government do not include the power to go to the mental health review tribunal for a review
of community treatment order conditions, what will follow is inevitable. Someone, or a group of
people, whose conditions are fairly stringent will apply to the High Court for judicial review on the
grounds that they are disproportionate. That will result in an expensive and time-consuming set of
litigation, which will eventually lead us to the conclusion that the Act is insufficient in the remedy it
provides. It is far better to deal with that now than after a war of attrition through the courts.
Lord Hunt of Kings Heath: My Lords, obviously these amendments reflect concerns raised in
Committee and at Second Reading. The short-term phrase “psychiatric ASBOs” has been used,
which we refute. I have concerns about the impact that the amendments would have and want to
make it clear that the conditions attached to a community treatment order set a framework for the
patient’s life in the community. One is not being defensive about this—that is what they are there to
do. They make clear what the patient needs to do or not in order to manage his or her mental
disorder and to remain stable.
As noble Lords have suggested, they will be greatly dependent on the professional views of the
responsible clinician and the improved mental health practitioner because the conditions must relate
to the patient’s mental disorder and its management. They must also be acceptable—even if not
agreeable—to the patient at the outset. Inevitably, the establishment of the community treatment
order will take place after discussion between the patient concerned and the clinician. It is hardly
likely to work if the patient is not in a position to take advantage of the community treatment order.
If the patient does not agree at least to try to keep to the conditions, what are the chances that
supervised community treatment would succeed in the first place?
As set out, the conditions say that they may be specified. They are merely examples, which will not
be appropriate for every case. They are not, with the exception of,
“a condition that the patient make himself available for examination”,
26 Feb 2007 : Column 1421
enforceable. That is not their purpose. We do not propose to recall a patient to hospital merely
because he has failed to comply with a condition. Of course, a failure to comply is a signal that
something may be going wrong and, depending on the patient’s medical condition, recall to hospital
may be necessary, but that will depend on the patient’s individual circumstances and is not
automatic.
I stress that, just as the conditions in general are not mandatory, the fifth condition is likely to be
appropriate for only a minority of patients. It is there for consideration where it is directly relevant
to the patient’s mental disorder and will contribute to the success of the patient’s community
treatment. If abstaining from a particular kind of conduct would help a patient to remain stable and
- 141 -
if making it a condition of a community treatment order makes that abstention more achievable, the
patient and others will benefit. It would be unacceptable to impose such a condition for any other
reason, which will be made clear in the code of practice. Two professionals will be involved when a
community treatment order is made; namely, the responsible clinician and the approved mental
health practitioner, who must both agree to all the conditions before they can be set. That should
surely ensure that there will not be arbitrary conditions imposed which cannot be justified.
I was asked about examples: in Committee, I quoted an example in which a patient was thought to
be illegally taking drugs or consuming alcohol to adverse limits. That could impact on the overall
treatment and condition of the patient and, in certain circumstances, it may be appropriate to lay
such a condition. If noble Lords accept that, I know that they would then wish to bring the tribunal
into play. We do not agree that that is the way forward. The tribunal of course is an independent
judicial body, which considers the justification for a person’s continuing detention, guardianship or
compulsory treatment order under the Act. But referring the issue to a tribunal would be to ask the
tribunal to substitute its judgment about the best way to treat a patient for that of the professional, or
professionals, responsible. We do not agree that that is a relevant decision for the tribunal.
It is interesting that the amendment does not propose that the tribunal set new conditions to
substitute for those that the responsible clinician has sought to place in the case of a particular
patient. We also think that these amendments might impose extra and unnecessary burdens on the
tribunal, and extra bureaucracy on the tribunal and the responsible clinician. I stress again that,
ultimately, the conditions laid out in new Section 17B “may” be specified, save for the condition,
“that the patient make himself available for examination”.
A failure to observe one of those conditions would not lead to the—
Lord Carlile of Berriew: My Lords, let us suppose that one of the conditions under new Section
17B(3)(e) is that a person remains in their home from six o’clock in the evening until seven o’clock
the following morning—the purpose being to prevent them from going out
26 Feb 2007 : Column 1422
drinking, taking drugs or both. If the patient wishes to challenge that on the grounds that it is a
disproportionate curfew in effect, which is exactly what has been done in the control order cases,
what remedy would he have? What advice would the Government give to such a patient on how to
proceed to have that condition rescinded on the grounds that it was disproportionate?
Lord Hunt of Kings Heath: My Lords, these are all hypothetical examples, but my assumption in
that circumstance would be that discussion would have taken place between the patient and the
clinical team, including the responsible clinician and the approved mental health practitioner. If it
becomes clear that the patient would find that unacceptable and is unlikely to oblige by it, that
would call into question the decision that a community treatment order would be suitable in that
patient’s concern. That is the best answer I can give the noble Lord on that. We do not think that the
kind of formality that is being proposed here, with the involvement of the tribunal, is the way
forward. We believe that the way in which the provision is set out, whereby conditions may be
satisfied, is a proportionate approach. I hope that the noble Earl on that basis will consider
withdrawing his amendment.
Earl Howe: My Lords, I am grateful to the Minister for his reply, although it was disappointing.
My fear here is that the Government are in danger of entering a minefield, if they ignore the human
rights traps which they have set themselves. We would do well to listen to the noble Lord, Lord
- 142 -
Carlile, whose expertise on these issues is undoubted—and I am sorry that the Minister is unable to
appreciate the risks that I see in having an open-ended provision for conditions to be attached
without qualification. For the reasons I stated, I believe that that could lead to some very unfair
situations arising.
I am extremely torn as to what to do, but I believe that the issue is sufficiently important for me to
invite the House to give its opinion.
6.51 pm
On Question, Whether the said amendment (No. 39) shall be agreed to?
Their Lordships divided: Contents, 133; Not-Contents, 136.
Division No. 3
CONTENTS
Addington, L.
Alderdice, L.
Alliance, L.
Anelay of St Johns, B.
Astor, V.
Avebury, L.
Barker, B.
Beaumont of Whitley, L.
Best, L.
Blackwell, L.
Bonham-Carter of Yarnbury, B.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Burnett, L.
Byford, B.
Carlile of Berriew, L.
Chidgey, L.
Cobbold, L.
Colville of Culross, V.
Colwyn, L.
Cope of Berkeley, L. [Teller]
Cotter, L.
Courtown, E.
26 Feb 2007 : Column 1423
Craigavon, V.
Crisp, L.
Darcy de Knayth, B.
- 143 -
De Mauley, L.
Denham, L.
D'Souza, B.
Dykes, L.
Eccles, V.
Falkland, V.
Fearn, L.
Feldman, L.
Finlay of Llandaff, B.
Flather, B.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Garden, L.
Gardner of Parkes, B.
Glasgow, E.
Glenarthur, L.
Glentoran, L.
Goodhart, L.
Greaves, L.
Hamwee, B.
Higgins, L.
Hodgson of Astley Abbotts, L.
Hooson, L.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hurd of Westwell, L.
Hylton, L.
Inglewood, L.
Jones of Cheltenham, L.
Kirkwood of Kirkhope, L.
Lamont of Lerwick, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Liverpool, E.
Livsey of Talgarth, L.
Luke, L.
Lyell, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mancroft, L.
Mar and Kellie, E.
Marlesford, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Meacher, B.
Methuen, L.
Miller of Chilthorne Domer, B.
- 144 -
Morris of Bolton, B.
Murphy, B.
Murton of Lindisfarne, L.
Neuberger, B.
Newby, L.
Newton of Braintree, L.
Northbrook, L.
Northover, B.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Palmer, L.
Palumbo, L.
Patel of Bradford, L.
Patten, L.
Pearson of Rannoch, L.
Pilkington of Oxenford, L.
Rawlings, B.
Razzall, L.
Redesdale, L.
Rees, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rotherwick, L.
Saltoun of Abernethy, Ly.
Sandberg, L.
Scott of Needham Market, B.
Seccombe, B.
Sheikh, L.
Shephard of Northwold, B.
Shutt of Greetland, L. [Teller]
Smith of Clifton, L.
Stern, B.
Stewartby, L.
Teverson, L.
Thomas of Swynnerton, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tonge, B.
Tope, L.
Trefgarne, L.
Tyler, L.
Vallance of Tummel, L.
Verma, B.
Waddington, L.
Wakeham, L.
Walmsley, B.
Walpole, L.
Walton of Detchant, L.
Watson of Richmond, L.
Wilcox, B.
Williamson of Horton, L.
Wolfson, L.
- 145 -
NOT CONTENTS
Acton, L.
Adams of Craigielea, B.
Adonis, L.
Ahmed, L.
Alli, L.
Amos, B. [Lord President.]
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Bhattacharyya, L.
Bilston, L.
Blackstone, B.
Borrie, L.
Bradley, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell-Savours, L.
Carter of Coles, L.
Chandos, V.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Corston, B.
Crawley, B.
Cunningham of Felling, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Drayson, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
26 Feb 2007 : Column 1424
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Filkin, L.
Ford, B.
Foster of Bishop Auckland, L.
Fyfe of Fairfield, L.
Gale, B.
- 146 -
Gibson of Market Rasen, B.
Golding, B.
Goldsmith, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haworth, L.
Hollick, L.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
Kilclooney, L.
King of West Bromwich, L.
Kingsmill, B.
Kinnock, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Lipsey, L.
Lockwood, B.
Lofthouse of Pontefract, L.
McDonagh, B.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mason of Barnsley, L.
Maxton, L.
Mitchell, L.
Morgan, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Yardley, B.
O'Neill of Clackmannan, L.
- 147 -
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Prys-Davies, L.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Rosser, L.
Royall of Blaisdon, B.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Sheldon, L.
Simon, V.
Smith of Finsbury, L.
Smith of Gilmorehill, B.
Soley, L.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Thomas of Macclesfield, L.
Tomlinson, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Varley, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Whitaker, B.
Whitty, L.
Winston, L.
Woolmer of Leeds, L.
Resolved in the negative, and amendment disagreed to accordingly.
[End of Community Treatment Order appeals & vote]
7.02 pm
[Amendments Nos. 40 and 41 had been withdrawn from the Marshalled List.]
[Amendments Nos. 41ZA to 43 not moved.]
Earl Howe moved Amendment No. 44:
Clause 26 , page 19, line 24, at end insert “for a maximum of three years in total”
- 148 -
The noble Earl said: My Lords, this amendment is about time limits. One of the big worries that
many of us have about CTOs is that, as formulated in the Bill, they are of indefinite duration. To my
mind that is not acceptable. Let us just consider what kind of patient will be thought appropriate for
supervised treatment in the community. It will typically be the patient who is coming to terms with
his diagnosis and finding out which treatment is best for him. It will be someone who is trying to reestablish a life in the community,
26 Feb 2007 : Column 1425
possibly after a lengthy period spent in a psychiatric institution. He will be in the throes of
establishing a therapeutic relationship with the community treatment team and he will be starting to
engage with the various community resources such as day centres and support services for
employment and housing.
That profile of a typical CTO patient is all about making the transition from being an in-patient to
living a normal life in the community. If CTOs are seen as transitional in this sense, then patients
should not be subject to indefinite renewals of supervised community treatment once they are on it.
While a patient is on a CTO either he will get better or he won’t. If he has got better, he should be
discharged. If someone’s condition has not improved to the extent that he can be discharged within
a reasonable period—and the amendment proposes three years—that suggests that the CTO has
failed to stabilise the patient’s health sufficiently. If that is the conclusion, then his treatment needs
reviewing properly. A review of this sort should take place in hospital and need not involve a long
stay. Once that has happened, it may be thought appropriate for supervised community treatment to
occur on a slightly different basis from before.
In the Bill as published, setting aside the effect of the amendments passed earlier, the provisions for
entry on to a CTO are very broad. A CTO can also be reviewed year on year without time limit. In
those circumstances it may be very difficult for someone to prove that they no longer need to be
placed on one, because there will always be an argument the other way. If the person’s mental
health has improved, the argument will be that he ought to remain under the order to maintain the
improvement. If he deteriorates, that could also be seen as justifying the need to continue the order.
So a CTO validates itself either way.
Professor Genevra Richardson raised this concern with her memorable analogy of the lobster pot: a
CTO will be relatively easy to get into but very difficult for a patient to get discharged from. A
CTO can be renewed using the same broad grounds as those used to determine whether to place
someone on a CTO in the first place. These are the reasons why, I believe, the aggregate period
over which a CTO may be extended, including renewals, should be limited to three years. In other
words, any extension of supervised community treatment after three years should require a new
assessment under the Act. The amendment is in tune with the recommendation of the joint scrutiny
committee, which proposed something very similar. Three years is a period which I am advised is
sensible and reasonable for achieving the therapeutic objectives inherent in a CTO without
restricting a person’s liberty in an unacceptable, open-ended way. I expect that the Minister has
been briefed to resist the idea but I hope that, at the very least, he will wish to take it away and
reflect on it. I beg to move.
Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Earl, Lord Howe, for his
amendment, which seeks to set a time limit on the
26 Feb 2007 : Column 1426
- 149 -
duration of a community treatment order. He is right to say that the Bill provides that a CTO can
last six months initially, can be extended for a further six months, then for a further year and so on.
I hope that I can reassure noble Lords about the possibility that patients will never get off
supervised community treatment and can remain on community treatment orders indefinitely. I very
much hope, as do the Government, that community treatment orders and supervised community
treatment will enable many patients to be discharged as quickly as possible. The very basis of
supervised community treatment can be seen as a positive move towards helping patients who
originally met the criteria but, because of the impact of supervised community treatment, will no
longer meet them and can be discharged completely. There is a clear, laid-down process for
extending a community treatment order, which requires examination of the patient and a report to
the hospital managers. There are safeguards in place for the patient.
I understand the lobster pot analogy used by Professor Richardson, concerning patients who would
find it very hard to get out of non-resident treatment. I share the view, as I have already implied,
that supervised community treatment should not last indefinitely, but I am not convinced that the
amendment is the right way to go about it. Any time limit that we might set is inevitably arbitrary.
The noble Earl might have chosen two years or four years; it takes no account of any individual
circumstances or of the patient’s clinical condition. I suggest to the noble Earl that there is the
danger of a “cliff-edge” approach, and the cut-off date might create that.
It might leave the responsible clinician in a situation of a perverse incentive, where a patient would
have to be discharged on a certain date, irrespective of their clinical need or whether they are able to
manage in the community without the support that the community treatment order provides. Mental
health practitioners might be in a very difficult position if they had to stand by knowing that a
patient was likely to relapse and the only action that they could take if they were not prepared to, or
it would not be right to, take the risk of discharging the patient would be to apply to detain the
patient once more and the patient would have to come back into hospital. I understand what the
noble Earl is seeking to do here, but there is a risk that by putting three years into legislation it
could work the other way. It might be perceived as the norm, and there might be an expectation that
patients remain on supervised community treatment until their three years are up.
We believe that the construct of the Bill, with the safeguards, when the question of renewing the
community treatment order is being considered, is the best way to deal with the issue rather than
having an arbitrary time limit. Noble Lords should remember that a responsible clinician can
discharge a patient at any time, and they must do so if the patient no longer meets the criteria for
supervised community treatment as laid out in the Bill. That question has to be explicitly reviewed
every time an extension of the community treatment order is considered. The patient can also apply
to the tribunal for discharge as soon as a supervised
26 Feb 2007 : Column 1427
community treatment order begins, once during each period for which the CTO is extended, and
again if the CTO is revoked.
In conclusion, although I fully understand what the noble Earl, Lord Howe, seeks to do, the
conditions and safeguards in the Bill serve the purpose better than a time limit, which, of necessity,
is bound to be arbitrary.
Earl Howe: My Lords, I thank the Minister for his reply and take note of his comments. He
described the amendment as a “cliff edge approach”. I do not share that analysis. The amendment
would certainly not oblige a clinician to discharge a patient. The point is that it would leave open
the option of a fresh assessment for the patient. In my view, that is only fair to the patient if, after
- 150 -
three years, his condition has shown insufficient signs of improvement. We are seeking to avoid a
situation where too few questions are asked. Once someone is on a CTO, it is very easy for a
clinician to renew it with insufficient thought about whether it is the right thing to do
therapeutically. Nevertheless, there is not going to be agreement between me and the Minister on
this. It perhaps needs to be tested in the field before we see whether an open-ended arrangement is
sensible and right. Noting the Minister’s objections, and with my own reservations and doubts on
the record, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.15 pm
[Amendment No. 45 had been withdrawn from the Marshalled List.]
Earl Howe moved Amendment No. 45A:
Clause 26 , page 19, line 31, leave out from “report” to end of line 32 and insert “, in the
prescribed form, that in his opinion the relevant conditions are met”
On Question, amendment agreed to.
[Amendment No. 46 had been withdrawn from the Marshalled List.]
Earl Howe moved Amendments Nos. 46A and 47:
Clause 26 , page 19, line 32, at end insert—
“(4A) The responsible clinician may not furnish a report to the managers unless—
(a) an approved mental health professional states in writing— (i) that he agrees with the opinion of
the responsible clinician that the relevant conditions are met; (ii) that it is appropriate to make the
order; and (b) if the responsible clinician is not a medical practitioner, a medical practitioner, as
provided in section 17F(4A), has examined the patient and as a result of the medical examination it
appears that the conditions mentioned in subsection (6) are satisfied in respect of the patient.”
Clause 26 , page 19, line 40, leave out from beginning to end of line 1 on page 20 and
insert—
“(b) except where a patient is detained under Part 3 of this Act (a patient concerned in criminal
proceedings or under sentence), the patient’s ability to make decisions about the provision of
medical treatment is significantly impaired because of his mental disorder;
26 Feb 2007 : Column 1428
(c) it is necessary for the protection of others from serious harm that he should receive treatment;
(d) subject to his being liable to be recalled to hospital for medical treatment such treatment can be
provided without his continuing to be detained in a hospital and it cannot be provided unless he is
liable to be recalled to hospital; (e) the patient has on at least one occasion previous to the present
admission under section 3 refused to accept medical treatment for a mental disorder; and (i) when
appropriate medical treatment has been refused there has been a significant relapse in his mental or
physical condition justifying compulsory admission to hospital; and (ii) medical treatment
- 151 -
following compulsory admission alleviated or prevented a deterioration in his condition; (f)
appropriate medical treatment is available for him.”
On Question, amendments agreed to.
[Amendment No. 48 not moved.]
Schedule 3 [Supervised community treatment: further amendments to 1983 Act]:
[Amendments Nos. 49 to 50A not moved.]
Lord Patel of Bradford moved Amendment No. 51:
Schedule 3 , page 58, line 31, at end insert—
“In section 121 of the 1983 Act (Mental Health Act Commission), after subsection (4)
insert—
“(4A) The Secretary of State shall, after consultation with the Commission and with such
other bodies as appear to him to be concerned, direct the Commission to keep under review
the care and treatment, or any other aspect of treatment, of all patients in hospitals,
independent hospitals and in such other settings as he may decide who are subject to
sections 4A and 4B of the Mental Capacity Act 2005.
(4B) Where the Commission has good cause to suspect that a patient who is neither liable to
be detained under this Act, nor subject to safeguards under sections 4A and 4B of the
Mental Capacity Act 2005, is being deprived of his liberty as a consequence of admission to
a hospital or an independent hospital, any person authorised by the Commission may—
(a) visit and interview and, if he is a registered medical practitioner, examine in private that patient;
(b) require the production of and inspect any records relating to the treatment and care of that
patient, and (c) raise any concerns with the appropriate authority.””
The noble Lord said: My Lords, I will speak to Amendments Nos. 51 and 52. The Mental Health
Act Commission is primarily a visitorial body, whose members meet patients detained under the
Act and keep under review the powers and duties of the 1983 Act. It is a modern incarnation of an
honourable, or at least relatively honourable, tradition of such bodies, stretching back to the seventh
Earl of Shaftesbury’s lunacy commissioners of the mid-19th century.
In some ways, the lunacy commissioners had an easier task than that faced by the Mental Health
Act Commission today. The landscape that they surveyed was largely one of asylums and private
madhouses, within which most patients were subject to the legal powers that they were concerned to
report on. But the increasing emphasis throughout the 20th century, rightly, on informal treatment
has meant that most patients passing through the hospital systems today are not formally subject to
legal powers and are out of the reach of the Mental Health Act Commission.
26 Feb 2007 : Column 1429
I am not seeking to make the point that the Mental Health Act Commission should have under its
purview all mental health services. Indeed, in discussions with the Government on their plans to
merge the Mental Health Act Commission with other health and social care inspectorates, I have
- 152 -
argued consistently for the protection of a visitorial role, with a primary focus on those who are
deprived of liberty in the psychiatric system.
The Mental Health Act Commission has been saying to various Governments for more than 20
years that not everyone who is deprived of liberty is subject to the formal powers of the 1983 Act.
Our observations were confirmed by the European court rulings that have led to the so-called
Bournewood proposals in this Bill. Even if Parliament accepts those proposals, and monitoring is
established for the new legal framework for authorising deprivation of liberty, I guarantee to this
House that there will still be patients who are subject to conditions amounting to deprivation of
liberty without any formal powers and safeguards being invoked.
In Committee, I remarked on the dreadful irony that the safeguard of Mental Health Act
Commission visiting extends to those who are lawfully detained but not to those who are unlawfully
detained. The law at present appears to require Mental Health Act commissioners to walk past those
patients who may be incarcerated unlawfully in dirty, cell-like rooms on the grounds that formal
powers under the 1983 Act have not been applied to deprive those patients of their liberty in a
lawful manner. This amendment would simply allow the Mental Health Act Commission to have
legitimate access to patients and records and to raise its concerns formally when it encounters
worrying situations concerning informal patients or patients subject to the Bournewood provisions.
I emphasise now, as I did in Committee, that this is not a call for extra resources, but a simple
request that the Mental Health Act Commission be enabled to raise questions about patients that its
commissioners cannot but notice while undertaking their current statutory duties.
I have revised my amendment since Committee, having taken account of the Government’s correct
concern at the earlier drafting, which implied that a statutory body could “keep under review” the
unlawful treatment of patients. I have rephrased the amendment to be more specific about what the
statutory powers should be when the Mental Health Act Commission encounters de facto detained
patients.
In Committee, I said in response to the Minister that I could not accept his assurance that legal
safeguards would be addressed in future legislation to merge current health and social care
inspectorates. I cannot see why we should not take this opportunity to amend the commission’s
remit now and provide some protections in the interim period, even if these measures will
eventually be overtaken by events. The Minister knows well that existing powers under the 1983
Act enable the commission’s remit to be extended in the way that I suggest here. He will also know
that our request for an extension of similar effect has been extant since 1985.
26 Feb 2007 : Column 1430
I believe that I have the support of many noble friends in this House and I hope that the Minister
will be able to respond to my amendment in a constructive manner. I beg to move.
Baroness Royall of Blaisdon: My Lords, the noble Lord, Lord Patel, argued as persuasively for
this amendment today as he did in Committee for a slightly different amendment. However, he will
be glad to hear that we have some sympathy with the amendment, although there are a couple of
important things to bear in mind.
First, as the noble Lord noted, there is current work to establish a new single regulator in England
replacing the Mental Health Act Commission, the Healthcare Commission and the Commission for
Social Care Inspection. We argue that the issue in the amendment of the noble Lord, Lord Patel, sits
comfortably with that work and will be considered as part of the creation of the new regulator
during 2008.
- 153 -
Secondly, the amendment may cut across monitoring proposals for the Bournewood safeguards.
The statement of intent that we have published outlines how the monitoring function will be
conferred on the three existing inspectorates in England, including the Mental Health Act
Commission. After the establishment of the new single regulator, the function would transfer to that
body. We would not wish to establish powers that might not dovetail with that.
The amendment is unnecessary because provision to achieve the intention behind it is already
contained in the Mental Health Act 1983. The Act gives the Secretary of State and the National
Assembly for Wales a duty to keep under review the powers and duties relating to detained patients
and directs her to delegate that duty to the Mental Health Act Commission. Section 121(4) allows
the Secretary of State, following a request from or after consultation with the commission, and after
any other consultation that she sees fit, to direct the commission to keep under review the care and
treatment of any patients not liable to be detained.
However, I can give noble Lords a commitment that we will explore making a direction under
Section 121(4). This will be no quick fix, because we are required to carry out a consultation and
we would need to have discussions with colleagues in the Welsh Assembly Government to explore
the options available there. Any future work in respect of Wales, including a formal consultation,
would of course require the agreement of Welsh Ministers. However, on that basis and with that
firm commitment, I invite the noble Lord to withdraw his amendment.
Lord Patel: My Lords, on a pleasant note, I thank the Minister for agreeing to look at this further
and for recognising that we can address these issues using the existing powers of the 1983 Act. She
will be aware that the Mental Health Act Commission has submitted a formal request for existing
powers to be used to put a stop to the arbitrary limitations in relation to its inability to address de
facto detained patients. I am keen to work with the Government and
26 Feb 2007 : Column 1431
I await their response to the request that we have already submitted. On that basis, I beg leave to
withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 52 and 53 not moved.]
Baroness Royall of Blaisdon moved Amendment No. 54:
Schedule 3, page 60, line 14, leave out paragraph 35 and insert—
“Extent
35 (1) In section 146 (application to Scotland), omit the words from “128” to
“guardianship)”.
(2) This paragraph does not extend to Scotland.”
The noble Baroness said: My Lords, this group of amendments relates to cross-border issues. The
majority of them follow from changes made in Scotland which amend the Mental Health Act 1983;
the others seek to clarify the position of patients granted escorted leave from elsewhere in the UK or
from the Channel Islands or the Isle of Man who wish to visit England and Wales.
- 154 -
Amendments Nos. 54, 62 to 65, 90 to 93, 96 and 97 have been laid because of amendments brought
forward by the Scottish Executive, in the consideration of the Adult Support and Protection
(Scotland) Bill, which amend the Mental Health Act 1983 in relation to Scotland. The ASP Bill was
passed by the Scottish Parliament on 15 February; it is expected to receive Royal Assent in March
2007 and to come into force in spring 2008. It will repeal Sections 88 and 128 and remove the
references to these provisions in Section 146 of the Mental Health Act 1983, but only as a matter of
Scottish law. These amendments reflect the changes made in Scotland to the Mental Health Act
1983 and apply them to the rest of the UK. Their effect will not have a practical impact on the care
of patients in Scotland or in the rest of the UK; they simply align the law in Scotland and the law in
the rest of the UK. I commend the amendments to your Lordships’ House.
Amendments Nos. 61 and 66 clarify the position of patients on escorted leave in England and Wales
from elsewhere in the UK or from the Channel Islands or the Isle of Man, and the legal powers of
their escorts. Under Section 17 of the 1983 Act, the clinician giving leave to a detained patient may
determine that it is necessary in a patient’s own interests, or for the protection of others, that the
patient remains in custody or be escorted during a leave of absence. Section 137 provides that a
patient granted escorted leave in England and Wales is deemed to be in the legal custody of their
escort. Section 138 provides for the retaking of a patient who escapes from such lawful custody.
Amendment No 61, by adding two subsections to Section 17, will engage these provisions for
patients on escorted leave in England and Wales from other jurisdictions. The effect is to put
beyond doubt that a patient who is granted leave in another jurisdiction, under a provision
corresponding to Section 17, may be conveyed, kept in custody or detained by their
26 Feb 2007 : Column 1432
escort while in England and Wales and retaken in the event that they escape. This will benefit
patients from other jurisdictions, particularly those in hospitals outside England and Wales whose
relatives live in England and Wales. A clinician is more likely to grant escorted leave into England
and Wales if the patient’s health and safety and the health and safety of others can be protected and
the legal position is clear. Other jurisdictions are considering similar legislation to ensure that a
patient on escorted leave from a hospital in England and Wales is deemed to be in legal custody and
that there is a power to retake a patient who escapes from lawful custody.
Amendment No. 66 is consequential. It amends regulations that apply to people who may be taken
into custody under Scottish legislation so that regulations may be made in respect of patients on
leave in Scotland from another jurisdiction. I beg to move.
7.30 pm
Earl Howe: My Lords, my noble friend Lady Carnegie, who unfortunately cannot be here, has
asked me to express her thanks to the Minister for the letter that she kindly wrote on 11 January in
response to a point made on these issues by my noble friend on 10 January.
My noble friend has, however, asked me to put a question. Let us suppose that a patient is detained
north of the Border under Scottish law and a proposal is made for that patient to be transferred
nearer to his or her family south of the Border. My noble friend’s fear is that, unless the basis on
which the patient is detained in Scotland accords with English law, it will not be possible to transfer
that patient because, were they to be transferred south of the Border, they would have to be
released, which would not of course be satisfactory. Does not a practical problem arise out of the
disparity between Scottish law and the Bill?
- 155 -
Baroness Royall of Blaisdon: My Lords, there is the potential in theory for a patient to meet the
criteria for compulsion in one country and not another. In practice, however, that is very unlikely to
arise. Prior to any transfer taking place, there will be discussions between the hospital where the
patient is being treated and the hospital to which they wish to transfer. It would be questionable
whether, as a matter of law, the managers of a hospital in any jurisdiction could agree to accept, as a
detained patient, a person who they may have reason to think would not meet the criteria for
detention. I trust that that clarifies the position for the noble Earl.
On Question, amendment agreed to.
Lord Hunt of Kings Heath: My Lords, I beg to move that further consideration on Report be now
adjourned. In moving the Motion, I suggest that Report stage begin again not before 8.31 pm.
Moved accordingly, and, on Question, Motion agreed to.
8.31 pm
Further consideration of amendments on Report resumed.
Clause 28 [Consent to treatment]:
Lord Hunt of Kings Heath moved Amendment No. 55:
Clause 28, page 21, line 17, leave out “after “58(3)(b) above”” and insert “before “a report
on””
The noble Lord said: My Lords, I shall also speak to Amendment No. 56. This is a technical
amendment that rectifies an anomaly that the Bill would otherwise have created in respect of the
duty of approved clinicians to report to the Mental Health Act Commission. Section 61(1) of the
Act currently requires reports to be made to the commission when a patient’s detention is renewed,
if the patient has been treated without consent in the previous period of detention under a certificate
given by a SOAD under Part 4 of the Act. Clause 28, as currently drafted, would have imposed that
duty in respect of recalled community patients, even if a certificate was not needed for their
treatment. It is not necessary to impose a requirement to report in those circumstances. To do so
would be out of kilter with the requirements applying to detained patients, and would impose a
small but unnecessary additional burden on clinicians and the Mental Health Act Commission. The
amendment will ensure that Section 61 of the Act remains properly targeted on treatment authorised
by SOADs appointed by the commission. I beg to move.
Lord Patel of Blackburn: My Lords, Amendments Nos. 56A and 58A relate to the authority for
treating patients who are made subject to community treatment orders or returned to hospital under
such an order. They would replace Clauses 28 and 29, which establish the Government’s proposals
on these matters. My main concern about those proposals is illustrated by the professional slang that
has started to be used to refer to second-opinion appointed doctors—commonly known as
SOADs—in the context of their proposed role in relation to community patients. The new term is
“super-SOADs”, from which we can infer that we are talking about a SOAD with special powers.
The special powers in question are indeed remarkable, and include the ability to see into the future.
Under the Bill, at some point during an initial period of at least one month, a community patient
will receive a visit from a SOAD. The SOAD will
26 Feb 2007 : Column 1450
- 156 -
examine the patient and authorise whatever treatment he or she thinks is appropriate at the time
according to criteria set out in the Act, but he will also be able to anticipate and authorise the
treatments to be imposed on the patient should he or she be recalled to hospital. This, I suggest, is
where the Bill requires a SOAD to be not only a psychiatrist but also a person with paranormal
powers.
In short, it anticipates that a SOAD, whose role should be to safeguard against unnecessary or
unsafe compulsory treatment, will authorise the forced application of medication in circumstances
that he or she cannot foresee at some unpredictable point in the future. The SOAD can have no way
of anticipating the circumstances whereby a community patient might be recalled to hospital or
what physical or indeed mental condition that patient would be in upon such a recall. A patient who
has developed dangerous and possibly irreversible side-effects might have them worsened by the
further imposition of medication on the authority of the SOAD. A patient with a heart condition
might be killed by the imposition of medication authorised in good faith by the SOAD.
Alternatively, the patient may have become pregnant, in which case some medications might be
dangerous to her or her unborn child.
The Minister may argue that I am ignoring the obvious fact that the responsible clinician or
whoever is involved in actually giving the treatment to the recalled patient will of course have a
duty of care and will not endanger their health or life recklessly in these ways. But if the only
safeguard against a SOAD’s authorisation being used recklessly in a context other than that in
which it was given is the professional judgment of the treating doctor, or even nurse, we have
negated the point of the SOAD role. It is important to preserve the role of the SOAD in considering
what treatment should be given on the basis of the actual presentation of the patient at the time of
their examination. This is the protection that SOADs can offer patients. The Minister may also
argue that SOADs already authorise some treatments in advance of their being given, which of
course is true, particularly with medication that is authorised on a ‘prn’ or as-required basis; but
they do so on the basis of the patient’s presentation and situation at the time of their visit, having
examined the patient and consulted two other members of staff who have professional involvement
with the patient’s care. The SOAD is not acting as if he or she can predict the future.
I should make it clear that I have an interest as chairman of the Mental Health Act Commission,
which is responsible for the administration of second opinions. One of the commission’s roles is to
appoint and train SOADs, and this means that it must provide advice on second-opinion procedure.
The Mental Health Act Commission will be likely to advise SOADs to be extremely cautious when
considering whether or not to authorise treatments to be given in an unforeseeable situation at an
unidentified point in the future. Indeed, even putting the issue in this way makes me wonder
whether the discretion that the Bill allows SOADs in this respect will actually be taken up by this
body of responsible psychiatrists. I have to say that I hope it will not.
26 Feb 2007 : Column 1451
The Bill’s proposals for SOADs raise another ethical issue. According to the Bill and the draft code
of practice, a SOAD who certifies that a community patient consents to treatment would also be
enabled to certify what treatments can be imposed on the patient if he or she withdraws consent and
is recalled to hospital. I realise that the possibility of coercion hangs over the heads of many
psychiatric patients, but this truly is a sword of Damocles. At the very least it would appear to
breach the principle underlying true consent as set out in the Mental Health Act code of practice,
which at paragraph 15.13 states:
“Permission given under any unfair or undue pressure is not ‘consent’”.
- 157 -
This brings me to my alternative model, set out in these amendments. The key difference between
my model and the Bill is that any certification of the treatment of a community patient cannot
authorise treatment upon recall. This means that the forcible imposition of treatment to a recalled
community patient would find authority only in the urgent treatment provisions set out in Section
62 unless and until a further second opinion is requested to consider treatment in the new context of
detention.
The amendment would not extend the three-month rule. Under the Bill, the requirement for a
certificate authorising treatment takes effect only after the CTO has been in place for at least one
month, and may be longer. A patient discharged to a CTO during his three-month period as an inpatient would have to wait until all of the unspent part of the three months had run its course before
having the safeguard of a second opinion. Indeed, when an in-patient’s three-month period is but a
distant memory, if that patient is discharged on to a CTO he or she will be subject to a new onemonth period where the safeguards over his or her treatment as an in-patient will be suspended. I
think patients will perceive that to be simply unjust.
My alternative proposal, where the three-month period still has some time left to run when the CTO
is made, is to require certification no later than one month from the start of that order. Therefore, if
the three-month period had expired within the first month, it would not be extended at all. If it were
extended for more than one month from the start of the CTO, it would expire exactly one month
from the start of that order. For in-patients whose three-month period has expired at the point when
a community treatment order is made, I would require certification from the start of the order. Let
us remember that drug treatment in the community is inherently less safe than such treatment under
24-hour medical care in hospital. We should be increasing the safeguards for community patients,
not lessening them.
To enable the certification from the start of CTOs, part of the preparation for discharging a patient
on to a CTO would be for incapable patients to be visited by a SOAD, and for a capable patient to
have a consent discussion with a clinician responsible for the treatment. It would be permissible to
complete certificates prior to the patient’s discharge that would only take effect once they become a
community patient. There is a precedent for that in the fact that all detained patients who are
currently coming to the end of their three-month
26 Feb 2007 : Column 1452
period will have Section 58 certificates completed for them, with such certificates taking effect only
when the period has actually expired.
Such an approach seems to be both more of a safeguard for patients and more practical for the
administration of the SOAD system. One of the great unknowns in the Government’s proposals is
how the second-opinion system might work with community-based patients. My proposals would
allow for many SOAD visits in relation to the new powers to be undertaken before the patient
ceases to be resident in hospital. At the very least, such a system would ensure that we knew where
the patients were at the time when they were due to be examined by a SOAD. I have some concerns
that under the Government’s proposals a great many clinicians would be faced with the dilemma of
whether to recall a patient to hospital simply because they do not attend appointments to meet a
SOAD.
Nothing in my proposed arrangements contradicts my objections to SOADs anticipating patients
recalling their authorisations. Certification, as a part of the discharge package, would of course take
place where a patient’s situation and mental or physical state were quite apparent to the certifying
doctor.
- 158 -
My amendment would reduce the complexity of the Bill; it uses the existing framework of Section
58 as its basis. We have heard from the Minister many times during our debates about the
limitations of an amending Bill, and that we are not writing new mental health legislation from
scratch. In that spirit, I offer this amendment on the basis that it makes only the most necessary
changes to the current statute to set out the effects of community treatment orders under Part 4 of
the 1983 Act.
My amendments, in contrast to the Bill’s provisions, would result in simpler and more practical
arrangements for authorising treatment in these circumstances. Moreover, they would preserve the
role of the SOAD, they would be safer for patients and more acceptable in ethical terms for the
professionals who operate the Act. I hope the Minister will give them full consideration.
Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Lord for allowing us to debate
what is undoubtedly an important matter. However, the Government disagree with him.
I shall explain. When a patient on supervised community treatment is recalled, it will be because he
needs treatment in hospital to avert a risk to himself or others. He may have failed to comply with
the medication authorised in the certificate, and it is simply the lack of compliance that engenders a
risk. In that case, the treatment he needs would be the same as he has been receiving in the
community. Alternatively, the patient’s condition may have deteriorated to the point where some
additional different treatment is needed to restore his stability. I am advised that it is possible to
foresee the possibility that such deterioration might occur, and to determine what medication would
be needed to deal with it. SOADs make that kind of assessment quite regularly when they authorise
treatment to be given as required. That is simply the kind of
26 Feb 2007 : Column 1453
judgment we are proposing clinicians might make when completing a Part 4A certificate.
It is interesting to note that, under the Mental Health Care and Treatment (Scotland) Act, which we
have discussed on a number of occasions, it is possible to authorise treatment given on recall, just as
we propose. I understand that this has caused no particular problems.
8.45 pm
I should emphasise that a SOAD certificate provides an authority to administer medication. It is not
a direction to do so. It remains for the treating clinician to decide whether it is right and proper to
administer the treatment at any given time.
The amendment which seeks to replace the Part 4A certificate is potentially detrimental to getting
patients the treatment they need quickly on recall to hospital. If a patient is recalled to hospital and
they do not consent to that treatment or do not have the capacity to object in some way, they cannot
be treated with medication unless it is an emergency. Under this amendment, a responsible clinician
would have to wait until a SOAD could be organised before he could treat the patient. This might
cause an unnecessary delay of days. It could be a common scenario and could result in a worse deal
for patients. Delays in treatment are not in the best interests of patients and may mean that a patient
has to spend longer in hospital because they cannot be treated quickly and return home.
We think the Bill achieves a pragmatic approach; it allows a patient to be treated quickly while
benefiting from the safeguard of a second doctor review of that treatment. Recall to hospital is an
event that everyone concerned will clearly hope to avoid, but it is available if needed, and it makes
sense to plan for it. Planning in advance of the eventuality and setting out transparently what
- 159 -
treatment could be given on recall is surely helpful to the patient and their family, with an
opportunity for them to contribute to the decision.
We have had a discussion about the length of time before which a SOAD must certify the
medication of a patient under the Mental Health Act. As we have had that debate, I will not return
to it in this context.
Baroness Barker: My Lords, before the Minister sits down, perhaps he will help me. Am I right in
believing that the doctors who will be judging the effects of non-compliance with regard to
medication are the same doctors whom the Government believe cannot predict the therapeutic
benefit of a treatment for a patient? That is a problem for me. There is a hole in the Government’s
logic and expectations.
Lord Hunt of Kings Heath: My Lords, if there is a hole in the Government’s logic, I guess there is
one in the noble Baroness’s logic, too. She is trying to argue it both ways. It is a different scale of
order in relation to treatability more generally and to medication. This is a safeguard for patients.
On Question, amendment agreed to.
26 Feb 2007 : Column 1454
Lord Hunt of Kings Heath moved Amendment No. 56:
Clause 28 , page 21, line 17, leave out “or section 62A below,” and insert “, or by virtue of
section 62A below in accordance with a Part 4A certificate (within the meaning of that
section),”
On Question, amendment agreed to.
The Lord Speaker: My Lords, Amendment No. 56A has been discussed in the group with
Amendment No. 55. It is up to the noble Lord, Lord Patel of Bradford, whether he chooses not to
move it; but, as it is now in its correct place on the Order Paper, he is free to move it now if he
wishes to debate it further.
Lord Patel of Bradford had given notice of her intention to move Amendment No. 56A:
Clause 28 , leave out Clause 28 and insert the following new Clause—
“28 Authority to treat community patients
(1) In section 58(3) of the 1983 Act, after “patient” insert “who is liable to be detained under
this Act”.
(2) After section 58(3) of the 1983 Act, insert—
“(3A) Subject to section 62A below, a community patient who has not been recalled to
hospital shall not be given any form of treatment to which this section applies unless—
(a) he has consented to that treatment and either the approved clinician in charge of that treatment
or a registered medical practitioner appointed for the purposes of this Part of this Act has certified
in writing that the patient is capable of understanding its nature, purpose and likely effect and has
consented to it; or (b) a registered medical practitioner appointed as aforesaid (not being the
- 160 -
approved clinician in charge of the treatment in question) has certified in writing that— (i) the
patient is not capable of understanding the nature, purpose or likely effects of that treatment; (ii) he
has either no reason to believe that the patient objects to being given the treatment, or he does have
reason to believe that patient so objects, but it is not necessary to use force against the patient in
order to give the treatment; (iii) he is satisfied that the treatment does not conflict with a valid and
applicable advance decision, or a decision made by a donee or deputy or the Court of Protection;
and (iv) having regard to the likelihood of its alleviating or preventing a deterioration of his
condition, the treatment should be given.
(3B) Where a patient who has been liable to detention under this Act has been administered
medication for a mental disorder to which this section applies for less than three months
prior to becoming a community patient, the period mentioned in section 58(1)(b) above shall
be read to extend for no longer than one month beginning with the day on which the
community treatment order is made.
(3C) The Secretary of State may by order vary the length of the period mentioned in
subsection (3B) above.
(3D) Certification under subsection (3A) above may take place whilst a patient remains
liable to be detained, but will not come into force until the responsible clinician discharges
the patient from detention in hospital under the terms of section 17A(1) above.”
(3) After section 58(4) of the 1983 Act insert—
26 Feb 2007 : Column 1455
“(4A) Before giving a certificate under section 58(3A)(b) above, the registered medical
practitioner shall consult two other persons, who have been professionally concerned with
the patient’s treatment, but of those persons—
(a) at least one shall be a person who is not a registered medical practitioner; and (b) neither shall be
the patient’s responsible clinician or the approved clinician in charge of the treatment in question.”
(4) In section 61 of the 1983 Act (review of treatment)—
(a) in subsection (1) for “or 58(3)(b)” substitute “, 58(3)(b) or 58(3A)(b)”; (b) in subsection (1)(a)
after “20(3)” insert “20A(4)”; (c) in subsection (3) for “responsible medical officer” substitute
“approved clinician in charge of the treatment in question”; (d) in subsection (3), for “or 58(3)(b)”
substitute “, 58(3)(b) or 58(3A)(b)”.
(5) In section 64 of the 1983 Act (supplementary provisions for Part IV), after subsection (2)
insert—
“(3) In this Part of this Act, references to “not capable of understanding the nature, purpose
and likely effects of treatment” are to be read in accordance with the test established at
section 3 of the Mental Capacity Act 2005.
(4) References to a donee are to a donee of a lasting power of attorney (within the meaning
of section 9 of the Mental Capacity Act 2005) created by the patient, where the donee is
acting within the scope of his authority and in accordance with that Act.
- 161 -
(5) References to a deputy are to a deputy appointed for the patient by the Court of
Protection under section 16 of the Mental Capacity Act 2005, where the deputy is acting
within the scope of his authority and in accordance with that Act.
(6) Reference to the responsible clinician shall be construed as a reference to the responsible
clinician within the meaning of Part 2 of this Act.
(7) References to a hospital include a registered establishment.”
(6) In section 119 of the 1983 Act (practitioners approved for Part 4 and section 118)—
(a) in subsection (2)(a) leave out “in a registered establishment” and insert “in a hospital or
registered establishment or any community patient in a hospital or establishment of any description
or (if access is granted) other place”; (b) in subsection (2)(b) leave out “in that home” and insert
“there”; (c) after subsection (2) insert— “(3) In this section, “establishment of any description”
shall be construed in accordance with section 4(8) of the Care Standards Act 2000.”
(7) In section 28 (Mental Health Act matters) of the Mental Capacity Act 2005 (c. 9), after
subsection (1) insert—
“(1A) Section 5 does not apply to an act to which section 58(3A) of the Mental Health Act
applies.””
The noble Lord said: My Lords, I do not wish to debate this amendment further, except to make
some closing remarks. I am obviously disappointed by the Minister’s reply. It is doubtful whether
any thoughtful clinician, especially when undertaking the role of a SOAD, would take advantage of
the scope of powers presented to him or her under the Government’s proposals. I urge the Minister
to set aside the question of whether professionals should be able prospectively to authorise
treatment on a patient recalled to hospital and consider the relative merits of the proposed models in
terms of patient protection and practicability of administration.
26 Feb 2007 : Column 1456
I hope that the Minister will think again and be willing to discuss this further with me and other
noble Lords, perhaps bringing forward some appropriate amendments at Third Reading. I hope that
this matter is raised again during the Bill’s proceedings here or in another place.
[Amendment No. 56A not moved.]
Lord Williamson of Horton moved Amendment No. 57:
After Clause 28 , insert the following new Clause—
“Assessment of need for health and social care services
After section 1 of the 1983 Act, insert the following Part—
“PART 1A Assessment of needs for health and social care services
1A Assessment of needs for health and social care services
(1) Where—
- 162 -
(a) it appears to a local authority or a health authority that any person with a mental disorder for
whom they may provide or arrange for the provision of community care services may be in need of
any such services; or (b) it appears to a health authority that any person with a mental disorder may
be in need of services which are commissioned by the health authority in respect of mentally
disordered persons,
the authority and the health authority shall carry out a joint assessment of his needs for those
services; and having regard to the results of that assessment, shall then decide whether his
needs call for the provision by them of any such services.
(2) Where a local authority or health authority receive a request for an assessment under
subsection (1) above in writing by—
(a) the person with mental disorder; (b) the carer (as defined under section 1 of the Carers and
Disabled Children Act 2000); (c) the person who is or who will be the nearest relative; or (d) an
approved mental health professional,
the authorities must comply with subsection (3) below.
(3) The requirement referred to in subsection (2) above is to give notice, before the expiry of
the period of 14 days beginning with the day on which the request is received, to the person
who made the request or whether the health authority and local authority intends to
undertake the assessment; and if the intention is not to undertake the assessment, of the
reason why that is the case.””
The noble Lord said: My Lords, this amendment, which relates to the assessment of need for health
and social care services, derives from the mental health organisation, Rethink, of which I have been
for a long time a supporter. Without prejudice to the question of whether this should be in the Bill,
which is a key point, it is rather bizarre not to have an assessment of the need for services of a
person with a mental disorder. Without it, how can the right decision on services be made? The
logic of this amendment seems quite irrefutable.
I want to make three points only. First, this amendment covers local authorities and health
authorities, which is an innovation; I do not think that it is in current legislation. The health
authority should in our view also be covered. Secondly, this assessment could be a request from a
number of people: the person himself; the carer—that is a very important point in public opinion—
the nearest relative; or a mental health professional. Thirdly, this
26 Feb 2007 : Column 1457
assessment is not an absolute requirement. It is clear from the text that the authorities can decide not
to make an assessment, but if they do that they have to give reasons. It is a logical sequence.
I leave it to the Minister to say whether it should be in the Bill, but I hope that he will indicate that it
seems reasonable as far as possible for local authorities and health authorities to make an
assessment, which it should be open to a number of people to suggest. There should also be a clause
to say that an assessment does not necessarily have to be made in every case. I beg to move.
Baroness Meacher: My Lords, needless to say, I will speak extremely briefly. This amendment
seeks to deal with the prejudice against those with mental health problems which is reflected
throughout the NHS. If we look at NHS budgets, I believe it is true to say that some 30 per cent of
patients suffer with mental health problems, but only 13 per cent of the NHS budget is devoted to
- 163 -
people with those problems. It is argued that physical treatments cost a great deal more than mental
health treatments, but that situation is very far from straightforward. A complex care bed in a
psychiatric hospital, particularly in the private sector, can cost £250,000 a year. Of course, some
people remain for that time or a good deal longer. A bed in an intensive care ward can cost £90,000
a year. How many physically ill patients have treatment regimes that cost anything like that
amount?
The principal argument behind this amendment has been that a quarter of people seeking
assessment and help with their mental health problems are turned away. The likelihood is that a
good proportion of those people will finish up needing these very expensive in-patient psychiatric
admissions. The reality is that within the mental health budget, funding is heavily focused on those
services directly affected by the Mental Health Act—for example, special hospitals, medium secure
units and intensive care units where detained patients tend to be looked after.
If someone really wants mental health services, believe me, they need to have a thorough-going
psychiatric breakdown and get themselves detained under the Act. If you do not do that, you have
not got much chance of anything like adequate care and treatment. I really do not believe that the
Government want to be responsible for a service with that extreme imbalance in the allocation of
resources. This amendment would over time encourage more resources to be focused on prevention.
This would support the Government’s welfare reform strategy, of which the Minister is much more
aware than probably any of the rest of us. Early assessment and evidence-based therapy would
prevent people losing their jobs and help others back to work. This amendment would thus also help
to fulfil the Government’s social inclusion agenda—all sorts of government agendas are being
talked about in this very short debate.
I am sure that none of us supporting this amendment wants a section in the Act which would leave
the Government open to endless litigation. This
26 Feb 2007 : Column 1458
amendment avoids that problem and keeps the House within its legitimate boundaries by not
requiring additional resources, so long as reasons are given for an inability to respond to a request.
The aim would be, through increased awareness of need as a result of an assessment being done,
that appropriate treatment would in time become available.
I hope that the Minister will give us some assurance that a way forward can be found to ensure that
people suffering crippling mental health symptoms can be assured of an assessment, exactly as any
patient with comparable physical symptoms could take for granted.
Lord Hunt of Kings Heath: My Lords, this has been a short but important debate. The argument
between us, if it is such, is that we believe that there are sufficient existing duties providing for the
assessment of patients and the provision of services in legislative provision at the moment, which
makes the amendment unnecessary. However, I fully accept that noble Lords have raised issues in
relation to the provision of adequate assessment, which deserves every consideration.
The Government readily acknowledge that the issues that they have raised are real and that there are
people who experience issues in accessing assessment and services. Noble Lords gave examples of
problems in Committee and at this stage. Because we believe that existing statutory duties cover the
point, the issue is how to ensure that statutory services ensure that the kind of problems that they
have raised do not occur in practice. We have to build on the progress that we have made in recent
years. The national service framework has laid the foundation for the kind of service that we want
in mental health care. We have seen many more resources put in, with more people employed, and
- 164 -
services such as assertive outreach, which we have discussed in the context of supervised
community treatment. One hundred and nine early intervention teams have been formed, as well as
343 crisis intervention teams and 262 outreach teams.
I am not at all complacent. I realise that there is more to do and that, if the noble Baroness is right
and there is no level playing field in practice between physical and mental services, we need to
ensure that in statute there is a level playing field. The issue is how to ensure that there is one with
regard to services on the ground. I am afraid—because I know that noble Lords may find this
answer tedious—that we will not achieve that through legislation. We have to achieve it through
determination to continue improvements to ensure that people do not slip through the net and that
when assessment and services are needed they are provided. But there is no moving away from the
hard graft that needs to be done on the ground to ensure that that happens.
Lord Williamson of Horton: My Lords, I thank the Minister for his reply. The issue is important
and I am strengthened by the convincing arguments presented by my noble friend Lady Meacher,
which I thought were very much to the point. I am grateful for the Minister’s acknowledgement of
the importance of the
26 Feb 2007 : Column 1459
issue and his determination to build on the progress that we have already made. Since he has
promised us hard graft, I shall look to him for hard graft in future. On that basis, I beg leave to
withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 29 [Authority to treat]:
Lord Hunt of Kings Heath moved Amendment No. 58:
Clause 29 , page 22, line 22, leave out “treatment falling within section 57 above” and insert
“a form of treatment to which section 57 or 58A above applies”
On Question, amendment agreed to.
[Amendment No. 58A not moved.]
Clause 30 [Repeal of provisions for after-care under supervision]:
Earl Howe moved Amendment No. 59:
Clause 30 , leave out Clause 30
On Question, amendment agreed to.
9 pm
Earl Howe moved Amendment No. 60:
After Clause 31, insert the following new Clause—
“Referral to Secretary of State by hospital manager
- 165 -
After section 67 of the 1983 Act insert—
“67A Referral to Secretary of State by hospital manager
(1) Where a patient who is admitted to hospital in pursuance of an application for admission
does not exercise his right to apply to the Mental Health Review Tribunal under section
66(1) above, the managers of the hospital shall, before the expiration of the period for
making such application, consider whether—
(a) the patient lacks capacity to decide whether to make such an application; and (b) there is any
good reason why such an application should not be made.
(2) In considering whether there is any good reason why an application under subsection (1)
above should not be made, the hospital manager shall have regard to the wishes and feelings
of the patient so far as they can be ascertained.
(3) Where the hospital manager reasonably believes that the patient lacks capacity and that
there is no good reason why an application under subsection (1) above should not be made,
he shall refer the patient’s case to the Secretary of State in order that he may consider
whether to exercise his power under section 67 to refer the case of the patient to the Mental
Health Review Tribunal.””
The noble Earl said: My Lords, the Minister will remember that in Committee I tabled a very
similar amendment to this one. The point at issue is whether there should be an extra degree of
protection in the Act for those mental health patients who lack capacity and who therefore do not
exercise their right to appeal to the mental health review tribunal.
Every year there are about 45,000 detentions under Sections 2 and 3 of the Mental Health Act,
which are the sections that enable a patient to make an immediate application to the mental health
review tribunal. Yet it is extremely unlikely that any but a small minority of patients so detained
have the capacity to make a tribunal application. For example, some of these patients will have
learning difficulties that will have prevented them from understanding the
26 Feb 2007 : Column 1460
nature and purpose of the tribunal. Others, by reason of their mental illness, will not have the
capacity to apply for a tribunal because their depressive symptoms make them feel that there is no
point in applying, or their delusional symptoms make them suspicious of the tribunal’s motives.
Just taking Section 2 detentions, we know that in 2004-05 Section 2 was used more than 21,000
times and there were just over 6,000 tribunal applications. Therefore, about 15,000 people detained
under Section 2 did not apply for a tribunal. We cannot tell how many of those 15,000 lacked the
mental ability or legal capacity to take a decision on whether to apply, but even if only 10 per cent
fell into that category—and that has to be a modest assumption—1,500 referrals still could have
taken place, and almost certainly should have taken place, but did not. Hospital managers have a
legal duty to ensure that suitable cases, where patients lack capacity, are referred to the tribunal. It is
clear that many are not properly complying with that obligation. That is a very serious situation.
When I raised this issue in Committee, the Minister said that she understood the point at issue, but
she rejected the amendment on several grounds. In the first place, she reminded us that Section 68
already places a duty on hospital managers to refer a case to a tribunal where no application has
been made in the first six months. Following this, adult patients are referred every three years, and
- 166 -
children every year. She also pointed out that the Bill introduces the option to reduce these periods
when resources allow. Her fear was that the amendment would lead to an immediate increase in
tribunal referrals which may or may not be wanted by the patients concerned, and that it would
force managers to assess capacity indiscriminately.
The Minister will see that I have changed the amendment so as to place a duty on hospital managers
to make appropriate referrals not to the tribunal direct but to the Secretary of State, who can
exercise her power under Section 67 to refer the case to the tribunal. I say to her that this
formulation is not designed to change the law; it is designed to help NHS trusts not to fall foul of
the law. The case of R(MH) v Secretary of State (2004) clearly showed that hospital managers have
a duty to refer appropriate cases to the Secretary of State with a request that it be referred to the
tribunal. The noble and learned Baroness, Lady Hale, concluded the case by saying that,
“every sensible effort should be made to enable the patient to exercise that right”,
to appeal to the MHRT,
“if there is reason to think that she would wish to do so”.
The duty under Section 68 to refer all cases for a tribunal hearing where no application has been
made after six months really is not a sufficient safeguard for this particular group of vulnerable
patients. That certainly is the conclusion one can legitimately draw from the judgment in the MH
case. Yes, it is indeed likely that the amendment may lead to an increase in tribunal hearings. But
why is that? It is because these
26 Feb 2007 : Column 1461
patients are currently being denied access to the tribunal. That hardly places the Minister’s position
on the moral high ground.
I agree with the Minister that hospital managers in general have no system to identify those detained
patients who are incapable of applying to a tribunal; that is true. But the result of that is that many
people are being denied the right to have their cases heard by a mental health review tribunal. There
has been absolutely no guidance on this point from the Department of Health.
It would be very good if the Minister were able to take this problem on board and think about how it
might be put right if an amendment such as this is not acceptable to her. I beg to move.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs
(Baroness Ashton of Upholland): My Lords, I am very grateful to the noble Earl for introducing
his amendment. My background briefing says that this is a very clever amendment, so I pay tribute
to him for that. I, too, was struck by what the noble and learned Baroness, Lady Hale, said in
responding to this. The critical part of what she said was about being practical and effective in what
we did in terms of the amendment. I thought very carefully about the issue that the noble Earl has
rightly raised. I reiterate what I said in Committee: I have no difficulty with the principle behind
what the noble Earl is seeking to achieve; the discussion between us is how we get there.
There is a difficulty in placing this in the Bill, because we run into two possible problems. One is
the inflexibility that primary legislation can offer us sometimes, which could be a difficulty.
Secondly, I hope that the amendment is unnecessary, for two reasons. First, in the draft code of
practice we have been very clear. It states:
- 167 -
“If the patient’s case has not already been considered by the MHRT—or a significant period
has passed since that hearing—Hospital Managers should consider making a request as soon
as the detention is extended. A failure to do so could result in a breach of the patient’s rights
under the Human Rights Act 1998”.
That raises my second point, which is that under either the ECHR or the Human Rights Act we have
very clear guidance and understanding in the public bodies that they have a right and a duty to
comply with the Human Rights Act.
I am happy to commit to look again at the code of practice to see whether we can strengthen this
aspect of it to address the reasonable concerns expressed by the noble Earl to make sure that this
actually happens when it should happen. I hope that in so doing, although I am not committing to
putting this in the Bill, I will be able to demonstrate as the Bill passes to another place that I have
addressed the concern that is reasonably raised in the amendment. To do so would make sure that
the combination of ECHR/Human Rights Act compliance and the requirements under the code of
practice addresses the concerns that the noble Earl raises. On that basis, I hope that he is able to
withdraw his amendment.
26 Feb 2007 : Column 1462
Earl Howe: My Lords, I am very grateful to the Minister for that helpful and positive reply, and I
accept her offer with gratitude. I am grateful to her for giving such serious thought to the proposals
that I put forward. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 33 [Cross-border arrangements]:
Lord Hunt of Kings Heath moved Amendment No. 61:
Clause 33, page 32, line 40, at beginning insert—
“(1) At the end of section 17 of the 1983 Act (leave of absence) insert—
“(6) Subsection (7) below applies to a person who is granted leave by or by virtue of a
provision—
(a) in force in Scotland, Northern Ireland, any of the Channel Islands or the Isle of Man; and (b)
corresponding to subsection (1) above.
(7) For the purpose of giving effect to a direction or condition imposed by virtue of a
provision corresponding to subsection (3) above, the person may be conveyed to a place in,
or kept in custody or detained at a place of safety in, England and Wales by a person
authorised in that behalf by the direction or condition.”
(2) ”
On Question, amendment agreed to.
Schedule 5 [Cross-border arrangements]:
Lord Hunt of Kings Heath moved Amendments Nos. 62 to 66:
- 168 -
Schedule 5, page 70, line 21, leave out “Scotland or”
Schedule 5, page 70, line 26, leave out from beginning to “an” in line 27
Schedule 5, page 70, line 29, leave out “words “to Scotland or Northern Ireland”” and insert
“following—
(a) the words “to Scotland or Northern Ireland”, (b) paragraph (a), and (c) in paragraph (b), the
words “in Northern Ireland,”
Schedule 5, page 72, line 9, at end insert—
“19A (1) In section 146 (application to Scotland), omit the words from “88” to “138)”.
(2) This paragraph does not extend to Scotland.”
Schedule 5, page 72, line 19, leave out “after “section” insert “289,”” and insert “for “290”
substitute “289, 290, 309, 309A””
On Question, amendments agreed to.
Lord Hunt of Kings Heath moved Amendment No. 67:
Before Clause 36, insert the following new Clause—
“Informal admission of patients aged 16 or 17
In section 131 of the 1983 Act (informal admission of patients), for subsection (2)
substitute—
“(2) Subsections (3) and (4) below apply in the case of a patient aged 16 or 17 years who
has capacity to consent to the making of such arrangements as are mentioned in subsection
(1) above.
(3) If the patient consents to the making of the arrangements, they may be made, carried out
and determined on the basis of that consent even though there are one or more persons who
have parental responsibility for him.
26 Feb 2007 : Column 1463
(4) If the patient does not consent to the making of the arrangements, they may not be made,
carried out or determined on the basis of the consent of a person who has parental
responsibility for him.
(5) In this section—
(a) the reference to a patient who has capacity is to be read in accordance with the Mental Capacity
Act 2005; and (b) “parental responsibility” has the same meaning as in the Children Act 1989.””
The noble Lord said: My Lords, in my response to the amendment on consent to treatment for 16
and 17 year-olds, tabled by the noble Earl, Lord Howe, I said that in view of what I had heard in
- 169 -
Committee I would take it back and see whether the Government should table an amendment in this
area. Amendments Nos. 67 and 94 are the result of the Government’s deliberations.
The amendments clarify the position of 16 and 17 year-olds who require treatment for mental
disorder being admitted informally. Section 131(2) of the Mental Health Act 1983 at present
provides that a 16 or 17 year-old who is capable of expressing his wishes may consent to being
admitted even though there are persons with parental responsibility for him. The intention of the
amendment is to make it clear that a 16 or 17 year-old may decide whether to be admitted,
regardless of the fact that there is a person with parental responsibility for him. That builds on the
approach taken in Section 131(2) of the 1983 Act and is consistent with the age range dealt with in
the Family Law Reform Act 1969, which in Section 8 deals with consent by persons over 16 to
surgical, medical and dental treatment. It is also consistent with the approach taken in the Mental
Capacity Act 2005, which in general applies only to people of 16 years and over.
The amendment amends Section 131, so that patients aged 16 or 17 who have the capacity to
consent to their admittance to a hospital or registered establishment for treatment for mental
disorder can consent or not consent to such arrangements. If the patient consents to the making of
arrangements, they can be informally admitted to hospital, and their consent cannot be over-ridden
by a person with parental responsibility for them. If the patient does not consent to the making of
the arrangements, they cannot be informally admitted on the basis of consent from a person with
parental responsibility for them.
Practitioners must, of course, satisfy themselves that, where the patient appears to be consenting, he
understands what he is consenting to and the consequences of that consent. Where the practitioner is
not content that the consent is sound, they may not use the consent of a person with parental
responsibility. The patient can be admitted to hospital for treatment under the Mental Health Act
1983 if they meet the relevant criteria. There is also, of course, the possibility of applying to the
court for authority, but we would not expect that route to be used often where there is the statutory
alternative of the Mental Health Act.
The repeal of a sub-paragraph in a schedule to the Children Act is pure housekeeping. The subparagraph inserted new text into the current Section 131(2) of the
26 Feb 2007 : Column 1464
1983 Act and requires repeal. The other amendment in my name in this group replaces that text.
In conclusion, I thought that the debate in Committee was very good. I was convinced by the
arguments and have, therefore, brought forward these amendments. I beg to move.
Earl Howe: My Lords, perhaps I may say how very much I welcome the amendment tabled by the
Government, which undoubtedly goes a long way to address some of the concerns voiced in
Committee about consent to treatment for minors.
Unfortunately, and at the risk of appearing to be a latter-day Oliver Twist asking for more, I wonder
whether the amendment goes far enough. It could be said that it sets up an anomaly. If the
amendment is made to the Bill in the form in which it has been tabled, the rights of a 16 or 17 yearold are protected, but those of a Gillick-competent child are not. That discrepancy is unsatisfactory
and potentially confusing. Amendment No. 71, which stands in my name and that of other noble
Lords, would provide an explicit statutory provision that those with parental responsibility could not
over-ride the competent refusal of a child or young person for treatment for a mental disorder.
- 170 -
Perhaps I could briefly set out why this is an issue. It has commonly been accepted that the refusal
of a Gillick-competent child or a mentally capable 16 or 17 year-old to accept medical treatment
can be over-ridden by a person with parental responsibility for that child or young person. That
principle was established in a 1992 case, In Re W. In the area of mental health, this led to
uncertainty: should a professional rely on parental consent in the face of the child or young person
refusing, or should he use the powers of compulsion under the Mental Health Act 1983? That
uncertainty typically causes delay in making appropriate arrangements for the child or young
person, which is highly unsatisfactory.
The Department of Health initially cited case law as giving greater autonomy to children and young
people; the Minister referred to that in Committee. However, the case law in question, the Axon
case, is not conclusive. It relates to the duty of confidentiality. It considered how medical
professionals should deal with young people who are Gillick competent and want advice on sexual
matters but who cannot be persuaded to inform their parents or to permit the medical professionals
to inform their parents. It does not, therefore, address the issue of a competent child’s refusal of
medical treatment. Indeed, the case of In Re W is not mentioned in Axon.
In Committee, the Minister referred to changes to the code of practice. In fact, the draft illustrative
code of practice removes references to the refusal of a Gillick-competent child or a capable 16 or 17
year-old being over-ridden by a person with parental responsibility. However, it cites no case law to
support that view, nor is there any explanation for the change in approach.
There is confusion here. The department’s 2001 guidance, Reference Guide to Consent for
Examination or Treatment, refers to parental consent over-riding
26 Feb 2007 : Column 1465
the refusal of a competent child or young person and suggests that this power should be used only
rarely. But the guidance then states that,
“no definitive guidance has been given as to when it is appropriate to over-rule a competent
young person’s refusal”.
So the cause for concern is not simply that there is a need for guidance in the form of a code of
practice, or whatever, to resolve the confusion among practitioners; the amendment is needed
because the current law is unclear. I believe that it can be made unambiguous only by including a
provision on the face of the Bill. I hope that the Minister will agree to look at this issue very
carefully.
9.15 pm
Baroness Walmsley: My Lords, I support the noble Earl, Lord Howe, and thank the Minister for
his letter to me explaining the position that he took at that time and for his change of heart. We very
much welcome the amendment, although it does not quite go far enough. The concept of the
Gillick-competent child is quite well understood. It works very well in relation to sexual advice. If
you were dealing with a large number of children—in a school, for example—it might be
practically difficult to use the concept of a Gillick-competent child in making decisions. The cases
we are talking about involve individual children whom the professionals have had every
opportunity to get to know and to assess whether they are competent to make the decision. In that
situation, I suggest to the Minister that, practically speaking, it is very reasonable to ask the
Government to include not just 16 and 17 year-olds but also those children who can demonstrate
their competence to decide on these matters.
- 171 -
Lord Hunt of Kings Heath: My Lords, I am grateful for the noble Baroness’s helpful comments.
This is clearly a complex area.
I begin by saying that I should be very happy to institute discussions between now and further
stages of the Bill. I give no commitment but it is important that there is an opportunity to discuss a
complex area. I am happy to accept the invitation that noble Lords have given to enable that to
happen.
The Family Law Reform Act provided that 16 should be the age at which the consent to treatment
should be treated as though that person were an adult and the consent of a person with parental
responsibility should not be required. The Mental Capacity Act, as I have already said, also
provided that in general none of the measures in it would apply to persons under 16. The position of
under-16s is more complex; there is likely to be far more variation. That is why our initial thinking
is that guidance is able to go into much greater detail in this difficult area. That is our preference.
Where the child is Gillick-competent—that is, it is deemed that they understand what they are
consenting to and the consequences of that consent—and the child consents, the draft code plainly
says that he can be admitted informally on that basis. I reiterate for the noble Earl, Lord Howe, that
that is very much a draft code and is work in progress. Comments made
26 Feb 2007 : Column 1466
during the passage of this Bill will undoubtedly be fed into the code. Where a Gillick-competent
child refuses, our guidance will state that it would be unwise to rely on the consent of a person with
parental responsibility, and to detain a Gillick-competent child against his wishes might be in
breach of Article 5 of the ECHR. The code will suggest that detention under the Mental Health Act
should be considered, although again there is the possibility of an application to the court. But, for
under-16s, every case will be different and depend on the specific facts of that case. That is why we
think that it is right to leave under-16s to the code.
This is a developing area of law; that is why we think it better to put this guidance in the code. I
accept what the noble Earl said about clarity in the law but the problem with the amendment is that
it requires children to be treated as adults as a blanket rule; we think that for those under 16 every
case will need to be looked at individually and have regard to a range of factors that will be
explained in the guidance. For example, where the child is not Gillick-competent to make such a
decision, if the decision falls within the zone of parental responsibility, a person with parental
responsibility will be able to give consent and the child can be admitted informally on the basis of
that consent. Guidance as to what is within what is known as the zone of parental responsibility will
be given in the code. Again, this is a developing area, and we think it more helpful to give detailed
advice in the code, which can be updated from time to time. It is, however, basically about the kind
of decisions that our society thinks it proper for a person with parental responsibility to be able to
take.
Where the child is not Gillick-competent and either it is not considered that the child could be
admitted informally on the basis of the consent of a person with parental responsibility, or no
person with parental responsibility is prepared to consent, consideration should be given to the use
of compulsion or, occasionally, an application to the court. As I said, the Family Law Reform Act
sets 16 as the benchmark for a young person to give consent to treatment as though he were an
adult. We think that our approach is in line with that. I should be happy to enable further
discussions to take place on this important matter but our default position is that, because of the
complexity, we think that the code of practice is the best place to deal with it.
- 172 -
On Question, amendment agreed to.
[Places of safety]
Lord Hunt of Kings Heath moved Amendment No. 68:
Before Clause 36, insert the following new Clause—
“Places of safety
(1) The 1983 Act is amended as follows.
(2) In section 135 (warrant to search for and remove patients), after subsection (3) insert—
“(3A) A constable, an approved mental health professional or a person authorised by either
of them for the purposes of this subsection may, before the end of the period of 72 hours
mentioned in subsection (3) above, take a person detained in a place of safety under that
subsection to one or more other places of safety.
26 Feb 2007 : Column 1467
(3B) A person taken to a place of safety under subsection (3A) above may be detained there
for a period ending no later than the end of the period of 72 hours mentioned in subsection
(3) above.”
(3) In section 136 (mentally disordered persons found in public places), after subsection (2)
insert—
“(3) A constable, an approved mental health professional or a person authorised by either of
them for the purposes of this subsection may, before the end of the period of 72 hours
mentioned in subsection (2) above, take a person detained in a place of safety under that
subsection to one or more other places of safety.
(4) A person taken to a place of a safety under subsection (3) above may be detained there
for a purpose mentioned in subsection (2) above for a period ending no later than the end of
the period of 72 hours mentioned in that subsection.””
The noble Lord said: My Lords, I beg to move formally.
The Deputy Speaker (Baroness Gould of Potternewton): My Lords, I do not think that the noble
Lord has spoken to this amendment.
Lord Hunt of Kings Heath: My Lords, I apologise to the House. I am not used to moving
amendments at the start of a group. No wonder the noble Lord, Lord Patel, and I got mixed up last
time.
It may be helpful if I speak briefly to my amendment. The noble Earl, Lord Howe, and the noble
Baroness, Lady Neuberger, may then like to speak to their amendment and I shall respond to that.
Amendment No. 68 is a response to some of the concerns raised in Committee. It would enable a
person detained at a place of safety under either Sections 135 or 136 of the Act to be moved from
one place of safety to another. I beg to move.
- 173 -
Earl Howe: My Lords, I am extremely grateful to the Minister for having tabled the government
amendment. It is most welcome and responds to the concerns expressed from around the Chamber
in Committee that the law as it stands is inappropriately rigid. A permissive power to move a
mentally disordered person from a police cell to another place of safety without necessarily waiting
for 72 hours to elapse is a sensible and humane provision. However, perhaps I may bring us back to
our Committee debates. I confess to a measure of disappointment that the Government have not felt
able to pick up some of the other concerns that I and others raised on that occasion. The amendment
in my name grouped here is designed to go somewhat further than Amendment No. 68.
Everyone agrees that a police cell is not a therapeutic environment for someone who may have
reached a mental crisis point and may even be suicidal. It is simply, if you like, an expediency. I do
not propose to repeat everything that I said in Committee, but putting someone in a police cell when
they are in an excited or depressed state of mind is neither good for the person nor fair on the
police. We have to recognise that police cells should be available as a last resort, but that is not
what the Act says. It places police cells on an equal footing with other places of safety as though all
had equal validity. Amendment No. 69A therefore says
26 Feb 2007 : Column 1468
that a police cell should be used only if it is impracticable to use a therapeutic environment. It also
proposes that the period of 72 hours allowed for in the Act for someone with mental health
problems to be detained by the police is too long and that it should be reduced to 24 hours.
I still think that the case for making this change is extremely strong, and it is supported fully by the
Police Federation and the Independent Police Complaints Commission. In fact, new research from
the IPCC shows that the average amount of time that those detained under Section 136 are held in
custody is 10 hours. The vast majority of detainees—95 per cent, in fact—leave police custody after
18 hours. That suggests very strongly that making an amendment to the Act to reduce the maximum
period of police custody to 24 hours would not represent an unduly onerous requirement. Indeed, it
is fair to say that it is only the absence of suitably trained specialist staff to carry out assessments
that prevents police in some areas of the country discharging mentally disordered detainees even
more quickly. With that thought in mind, the amendment would also put in the Act a duty to ensure
that, where someone is detained in a cell, he must be assessed by mental health professionals or
transferred to a psychiatric hospital within the shortest possible time.
I realise that the Minister is unlikely to warm to the amendment or at least to the parts of it that do
not chime in with Amendment No. 68. In view of the widespread concerns expressed on these
issues, both from the police and the mental health community, I ask him whether he will agree once
more to take these various points away with him and give them further thought. If he cannot agree
to the amendment, it would be extremely welcome if the Minister were able to give a commitment
to monitor the use of police cells as places of safety and publish the figures regularly. At least that
would help to establish the extent of the problem and the particular areas in which police cells are
over-used. At the moment, there are no official national statistics or monitoring of the use of police
stations as places of safety.
I understand that the Police Federation does not believe that that would be an unnecessary
administrative burden. Most police authorities already have a computer system that allows them to
log in when a patient is brought in under Section 136. However, according to the IPCC research,
currently there are wide variations in the way in which that data is recorded, which makes it
difficult to establish accurate numbers of people detained in police cells.
- 174 -
Lord Hunt of Kings Heath: My Lords, I seem to be forever destined to disappoint the noble Earl,
Lord Howe, even when I bring forward government amendments in response to issues that he raised
at previous stages of the Bill. Of course, I recognise that there is a great deal of concern about the
use of police cells for the detention of mentally ill people. As I said in Committee, I accept that a
police station is not an ideal place in which to detain such a person. I also accept that 72 hours may
seem to some people to be a long time. It should be borne in mind that that is an
26 Feb 2007 : Column 1469
upper limit. Recently published emerging evidence from a study being undertaken by the
Independent Police Complaints Commission suggests that the average amount of time in police
custody under Section 136 is 10 hours and that the majority of detainees leave police custody within
18 hours. That is reassuring, although from this evidence it is clear that some people need to be
detained for longer than 24 hours.
I well understand why the noble Earl has returned to this matter, but there are some issues of
practicality. For example, in the case of a person removed from a public place, it would require the
police and local agencies to try to identify an appropriate place of safety other than a police station.
If none is available, it would be necessary to convey the person to a police station and to arrange for
the person to be examined and interviewed urgently at the police station. If that is not possible, it
would be necessary to transfer him to another place of safety and to arrange for him to be
interviewed and examined there.
It may not be possible to do all that within 24 hours. As I said in Committee, I do not think that
imposing statutory restrictions is the way to address the concerns of the noble Earl. The right way
forward is to try to limit the use of police stations by facilitating good practice. The Government are
allocating a considerable amount of money to the NHS in England to improve the NHS estate and
£130 million is being made available this year and next year. That money will help to facilitate an
increase in hospital-based places of safety and improvement in existing facilities. Therefore, it will
help to reduce reliance on police stations.
I also re-emphasise that we are planning to reinforce our approach to encouraging good practice by
strengthening the guidance in the new code of practice for England along the lines of the noble
Earl's amendment. The current code states that police stations should not generally be used. In the
revised version of the code, we intend to stress that police stations should be used only as a last
resort; for example, only if nowhere more suitable is immediately available and even then only if
such use is compatible with local agreements on the use of places of safety. We also intend to stress
in the revised code that assessment should be completed as soon as possible. Of course, we shall
consult widely on that. I understand that similar arrangements will be made for the code of practice
in Wales.
There is clearly more that we can do. The amendments that I have tabled also deal with an issue that
was raised in Committee—a very good issue—and we now amend the Bill so that patients can be
moved from one place of safety to another. Clearly, it is not appropriate for vulnerable, mentally ill
people to have to remain at, say, a police station, so that a doctor and an approved mental health
professional can assess and interview when a more suitable setting is available.
On monitoring and the views of the Police Federation, my right honourable friend Mrs Rosie
Winterton, the Minister responsible, recently met
26 Feb 2007 : Column 1470
- 175 -
with representatives of the federation. There was a good, useful and constructive discussion. We are
not convinced that there is a need to require the Home Secretary to monitor and report on the use of
police stations as a place of safety. However, I shall take the more general issue of monitoring back
to see what can be done. As the noble Earl will know, we intend to create a new single regulator in
England to replace the Mental Health Act Commission, the Healthcare Commission and the
Commission for Social Care Inspection. We will want to look at monitoring responsibility. In that
context, I certainly undertake to look at the issues that the noble Earl has raised.
9.30 pm
Earl Howe: My Lords, before the Minister sits down, I should say that I am by no means
unappreciative of the government amendment. Nor am I unappreciative of the proposal he just
kindly just made, which I welcome.
On Question, amendment agreed to.
[End of Places of safety]
[Amendment No. 69 had been withdrawn from the Marshalled List.]
[Amendment No. 69A not moved.]
Baroness Murphy moved Amendment No. 70:
Before Clause 36, insert the following new Clause—
“Offence of ill-treatment: increase in maximum penalty on conviction on indictment
In section 127 of the 1983 Act (ill-treatment or wilful neglect of patients), in subsection
(3)(b), for “two years” substitute “five years”.”
The noble Baroness said: My Lords, the amendment is similar to the one tabled in Committee. I
shall not repeat the arguments. It merely brings the statute up to date. As I remarked in Committee,
I do not think anybody has been prosecuted under this legislation, but I have discovered that there
was a case prosecuted under an identical clause in the 1959 Act, Pountney v Griffiths in 1975, that
went to the Appeal Court. It may be used at some time, and seems to send an appropriate signal to
patients and carers that this is a serious matter. I beg to move.
Lord Hunt of Kings Heath: My Lords, I welcome the amendment of the noble Baroness, Lady
Murphy. As she says, although it may not have been used, the fact that the amendment raises the
offences seems an important signal. The Government are glad to support it.
Baroness Murphy: My Lords, I am very grateful to the Minister indeed.
On Question, amendment agreed to.
[Amendment No. 71 not moved.]
Baroness Neuberger moved Amendment No. 71A:
Before Clause 36, insert the following new Clause—
- 176 -
“Use of seclusion and other forms of behaviour management
After section 142 of the 1983 Mental Health Act insert—
“142A Use of seclusion and other forms of behaviour management
26 Feb 2007 : Column 1471
(1) This section applies to the use of seclusion, mechanical restraint or other interventions to
manage disturbed behaviour as may be specified for the purposes of this section by
regulations made by the Secretary of State.
(2) For the purposes of this Act, “seclusion” means the supervised confinement of a patient
in a room, which may be locked to protect others from significant harm.
(3) A patient shall not be subject to any form of intervention to which this section applies,
except in accordance with regulations.
(4) The Secretary of State shall make regulations prescribing—
(a) circumstances under which any form of intervention to which this section applies may be used;
(b) reporting requirements on the use of any such intervention; (c) review and scrutiny of the use of
such interventions; and (d) circumstances under which patients subject to such interventions must
be visited by persons authorised by the Commission.
(5) Before making any regulations for the purposes of this section, the Secretary of State
shall consult such bodies as appear to him to be concerned.””
The noble Baroness said: The amendment has been introduced late in the passage of the Bill due to
the report of the Joint Committee on Human Rights. Other noble Lords around the House will be
quite aware of that.
The JCHR recommended:
“We urge the Government to ensure that, whatever method of regulation is adopted,
sufficient safeguards are included on the face of the bill to ensure that seclusion is only used
when strictly necessary and that individuals subject to it should have access to review at
intervals to ensure that it is brought to an end when no longer necessary”.
The amendment deals with seclusion and regulates its use and other methods of managing disturbed
behaviour to provide greater safeguards to patients subjected to such interventions. The Joint
Committee on Human Rights identified the lack of regulation in the Act as an omission. The House
of Lords held, in R (Munjaz) v Mersey Care NHS Trust and Others, concerning the introduction of
a written policy governing the seclusion of patients at Ashworth Hospital that diverged considerably
from the framework in the code of practice on the frequency of review, that,
“hospitals are free to depart from the Code if they have a good reason for doing so”.
Given the recommendations of the JCHR and the absence of reassurances about the status of the
code of practice, we thought it appropriate to debate the regulations of seclusion even at this stage
of the Bill.
- 177 -
Seclusion is defined in the code of practice on the Mental Health Act 1983 as,
“the supervised confinement of a patient in a room, which may be locked to protect others
from significant harm. Its sole aim is to contain severely disturbed behaviour which is likely
to cause harm to others”.
The definition in this amendment is based on that. The code also specifies that:
“Seclusion should be used ... as a last resort ... for the shortest possible time”.
It,
“should not be used; as a punishment or threat ... as part of a treatment programme ...
because of shortage of staff”,
26 Feb 2007 : Column 1472
or,
“where there is ... risk of suicide or self-harm”.
I think that the Mental Health Act Commission may have proposed a slightly different amendment
to guidance on the latter point.
It may be necessary to have a fuller description in regulations or the code of practice to ensure that
all practices that amount to seclusion are indeed covered. In its latest biennial report, the Mental
Health Act Commission sets out various terms used to describe a range of practices that still amount
to seclusion. These include therapeutic isolation, single-person wards, enforced segregation, and
restriction of movement. The quality of care provided under these circumstances can vary widely,
from the very good to the dangerously substandard. The Department of Health has also referred to
different kinds of nursing and accommodation that is separate from other patients as “alternatives to
seclusion”. Again, that may undermine regulation of these practices. This amendment deliberately
uses the language of managing behaviour to differentiate these interventions from clinical or
therapeutic interventions; I cannot state too clearly or strongly that they are not.
There is some considerable prevalence of seclusion being used in the mental health system. The
Mental Health Act Commission’s own census found that 3 per cent of all psychiatric in-patients
resident on 31 March 2005 had experienced one or more episodes of seclusion in their period of
admission or in the previous three months, 112 patients had experienced at least five periods, and 42
at least 10. The maximum number was over 100, and there were particularly high rates for black
patients. Here is an issue that ought, yet again, to ring alarm bells with all of us; it seems to be
overused for black people and those from minority-ethnic communities. It appears that this could be
an area where the use of seclusion—if it is to happen at all—is overly strong with some
communities rather than others.
Over six months in 2004-05, the Mental Health Act Commission collected data on episodes of
patients being held in isolation for 48 hours or more. It was notified of 74 episodes in the acute
sector and 156 in the medium or high secure sector. Many were for much longer periods, and many
were not described as seclusion. The Healthcare Commission’s recent audit of psychiatric units
found about one-third saying that they used seclusion at some point or other.
Numerous aspects of seclusion may lead to patients’ rights being infringed. The grounds for using
seclusion could be punishment rather than treatment. There could be conditions in which people
- 178 -
were accommodated without a toilet or any washing facilities—people can be cared for really badly
during seclusion—or issues about how seclusion is brought to an end. For instance, there are
examples of staff requiring the patient to “show remorse”, or all sorts of issues in how complaints
about using seclusion are dealt with. All these areas could be addressed by the review and by the
visiting requirements envisaged in regulations.
This amendment simply proposes that the Act sets the scope for regulations with which the use of
seclusion, and any other interventions added to the clause, must
26 Feb 2007 : Column 1473
comply. Those would define: the circumstances in which the measures could be used; reporting
requirements; review and scrutiny; visiting issues; and, if there are people who are subject to
prolonged or repeated seclusion, making sure that they are visited by an independent person who
can protect their rights. These regulations would set limits on the use of seclusion and provide
procedural safeguards to check whether people in this extremely powerless set of circumstances
were being treated in accordance with the code of practice. As this is such an important and difficult
area, we believe that there has to be consultation on any regulations before they are laid.
Finally, in addition to the recent Joint Committee on Human Rights report, the Joint Committee on
the draft Mental Health Bill recommended that the Bill regulate the use of seclusion and mechanical
restraint by requiring the same kind of safeguards provided in the current code of practice to ensure
that decisions to seclude or restrain are made only when absolutely necessary, are subject to regular
monitoring and review, and that the seclusion or restraint is brought to end immediately the
intervention is no longer needed for the protection of others. There should be a requirement to
report such interventions to the Mental Health Act Commission and, if seclusion or restraint is
prolonged, a member of the expert panel should visit the patients. The Government agreed with the
Joint Committee on the draft Mental Health Bill about this when that draft Bill was still current and
they agreed that similar safeguards should continue in this Bill. They also shared the concerns about
prolonged seclusion and restraint and were exploring how best to safeguard patients’ interests in the
context of the new legislation. According to the Mental Health Act Commission, the Government
were considering using the mechanisms then being proposed in the Mental Health Bill that were
concerned with medical treatment.
We were all delighted that the Government were interested in regulating seclusion, but we are
concerned that, given the legislation now before us, it no longer appears to be on the Government’s
agenda and similar mechanisms to those governing treatments are being considered. Seclusion is a
means of containing violent behaviour, but it is not a treatment. Confusing the two functions could
have the effect of legitimising seclusion for other purposes and weakening any safeguards by giving
scope for clinical discretion. We believe that this is a golden opportunity for the Government to
fulfil their earlier intention to commit to a form of regulation and to work out, in consultation, the
best way of doing it. I beg to move.
Lord Patel of Bradford: My Lords, I am grateful to the noble Baronesses, Lady Neuberger and
Lady Barker, for raising this issue following the Joint Committee’s recommendation. I agree with
the general thrust of this amendment, and I hope that serious consideration will be given to it. I
certainly believe that there should be regulation of the use of seclusion.
26 Feb 2007 : Column 1474
As the noble Baroness said, the Mental Health Act Commission, of which I am the chairman, called
for this in several of its reports, including the most recent, the 11th biennial report. That was
- 179 -
published before the abandonment of the draft Bill of 2004, in which the Government, rather to the
horror of the Mental Health Act Commission, proposed regulation of a sort using the mechanisms
of Part 4 of the Act. The Minister may have read the discussion of seclusion in chapter 4 of the
commission’s report, but if not, I hope that he will do so, paying particular attention to the section
entitled “The Perils of Medicalisation”.
I am pleased that this amendment refers to the management of disturbed behaviour rather than to its
treatment. Let us not fall into the trap of assuming that these are simply matters for clinical
discretion, but recognise that they engage rather wider issues of keeping order within hospitals. I
note that this amendment prescribes the circumstances in which seclusion or other types of serious
restraint may be used. I sense that the response from the Minister may be that it could be dangerous
to fetter services in such ways, but I hope that such arguments will not close off deeper
consideration of how such regulations might be formed.
While we must not establish quasi-clinical criteria for the act of isolating a patient from others, it
does not seem impossible to me that we could have regulations that set out what seclusion can and
cannot be for, rather in the way that Section 62 sets out when certain treatments can and cannot be
given. Just as importantly, we need a statutory definition of seclusion that will prevent services
claiming never to seclude a patient when all they really do is operate seclusion under some
euphemistic term. If we can prevent hospitals euphemising seclusion away, we should certainly
require them to keep records of the practice that would be available to monitoring bodies and their
own internal auditing procedures. This amendment provides regulatory powers to enable all these
things.
The Minister’s brief on this amendment no doubt suggests that he should repeat the mantra that
these matters are appropriate for a code of practice, not statute. I hope that he will pause before
doing so and reflect upon the point raised by the noble Baroness, Lady Neuberger, about the way in
which the code’s guidance on seclusion was at the centre of the judicial ruling in Munjaz. That
ruling effectively tells services that they can write their own codes of practice on seclusion so long
as they do nothing in breach of the European convention. It is a shame that the Department of
Health, although nominally the co-sponsor of the code, argued in submissions to the court that
services should be free to disregard it.
We have not yet finished debating the status of the code and I will not pre-empt that discussion, but
I ask the Minister to remember that services already have guidance on seclusion in a code of
practice that many of them do not follow, and which some of them openly disregard. Just as the
dissenting judgment of the noble and learned Lord, Lord Steyn, in Munjaz warned of a free-for-all,
the use of the code in this area has led to something of a Wild West in practice.
26 Feb 2007 : Column 1475
The Mental Health Act Commission cannot even collect meaningful seclusion data across the highsecurity sector because hospitals—or rather one in particular, Ashworth Hospital—operate
incompatible, or at least incomparable, systems of seclusion. Patients transferred from one hospital
to another, not just in the high-security sector, may now find arbitrary differences in how hospital
regimes operate seclusion, despite the European convention requirement for transparency and
predictability in matters that potentially engage the rights that it establishes.
I suggest to the Minister that this is not good enough, and that more stringent regulation is needed.
9.45 pm
- 180 -
Lord Hunt of Kings Heath: My Lords, I am grateful to noble Lords. I certainly do not want to
close down the options for discussion and I am sorry if my applause for the code is seen as a
mantra. It is important. We have debated—no doubt, later this evening we shall further debate—the
code of practice, but the two go very much together. There are very good reasons why some matters
are left to the code and are not in legislation or regulations.
Essentially, we think it unnecessary and undesirably inflexible to regulate seclusion, restraint and
other similar interventions in the way proposed by the amendment. It is true that the amendment
leaves the details to regulations, which is certainly preferable to trying to codify rules in primary
legislation, but we still foresee difficulties finding sufficiently clear definitions for regulations. Such
definitions should not, on the one hand, encroach on what may be thought of as routine clinical
interventions, rather than crisis responses. On the other hand, I very much agree that we should not
encourage people to use less appropriate techniques to avoid the bureaucracy of the regulations—
the risk of the perverse incentive—or because what they believe to be the best in the circumstances
is not permitted.
There is genuine concern that we may unwittingly restrict staff to a limited range of techniques that
do not sufficiently recognise the huge variety of scenarios that they may face. Any kind of
restrictive regulation invariably runs the risk of inhibiting new innovative techniques for managing
difficult behaviour.
We accept that there is variation in the use of seclusion and restraint, not all of which represents
genuine differences in need. I have no doubt that there are places where practice can be improved.
However, we must be wary of defining what hospital staff may or may not do either as part of
routine clinical care or as an immediate response to dangerous situations. It is worth remarking on
the issue of violence towards NHS staff. A programme is being broadcast at this very moment about
it. We need to recognise the situations in which staff find themselves. We have to pay regard to
their interests in these matters.
Currently we address such issues through guidance to practitioners in the code of practice. The code
currently states that hospital managers should have clear written policies on the use of physical and
other forms of restraint. Physical restraint should take place only as a last resort, not routinely. Any
restraint
26 Feb 2007 : Column 1476
should also be reasonable in the circumstances, apply the minimum force necessary to prevent harm
to the patient or others, be for only as long as necessary and be sensitive to gender and race issues.
In preparing the draft illustrative code of practice, I have remained very aware of the deliberations
in the Joint Committee on Human Rights and our evidence to it, which concluded that the most
appropriate approach to this practice issue is to provide for it through guidance in the code of
practice. That remains our position. In preparing the draft illustrative code of practice to accompany
the Bill, we revisited and updated the guidance on seclusion and constraint. It will be further
developed in the new code to be issued for consultation. I understand that the Assembly
Government intend to make a similar provision in the code of practice for Wales. The draft
illustrative code of practice reflects the NIMHE 2004 guidance, the Mental Health Policy
Implementation Guide. It also advises that the NICE guidelines are also adhered to. The NICE
guidelines address the management of aggression and violence, including restraint.
The use of seclusion and restraint is often a clinical judgment. Its use should be informed by
detailed professional guidance of the sort to which I have just referred. The code of practice
- 181 -
provides that such guidance is brought to the attention of practitioners and service providers. We
need to be clear about the observation of the Appellate Committee of this House that the
requirement that cogent reasons be shown for any departure from the code sets a high standard that
is not easily satisfied. We must be clear about that, although I realise that we will probably discuss
this a little later on.
Section 120 of the Act already enables the Mental Health Act Commission at any reasonable time to
visit and interview any detained patient and to inspect any records relating to the detention or
treatment of that patient. I know that there are concerns that young men from some black and
minority-ethnic groups are over-represented in the use of seclusion and restraint. I understand those
concerns: we all have general concerns about how a group of people is treated in the current
services. I understand that the 2006 census will show less emphasis in relation to that figure. I must
be careful not to speculate, but one can only hope that some of the current publicity and the advice
and guidance are beginning to have an impact on service provision and practice activities in the
services.
We will keep the operation of the Act under review, and we will look for comprehensive
information on how it is used, which will help us to monitor better what is happening. Again, as I
said about places of safety, when the new combined regulator for health and social care is formed,
we will consider how information on the use of seclusion may be reported to the new regulator. I do
not seek to undermine anything that the noble Baroness and the noble Lord have said about this. We
simply think that it is better to deal with this in the code.
Baroness Neuberger: My Lords, I am extremely grateful to the Minister for his reply, although I
am not wholly content with it. He is obviously not entirely
26 Feb 2007 : Column 1477
surprised to hear that, either. Let me say just a few things. First, given the very clear
recommendation from the Joint Committee on Human Rights, when it said:
“We urge the Government to ensure that, whatever method of regulation is adopted,
sufficient safeguards are included on the face of the bill”,
it is extraordinary for the Government to say yet again that they think that this is better dealt with in
the code of practice. I find that really quite worrying, because to some extent they are simply not
listening. However, we have heard about the code of practice and will come to that later.
Secondly, I fully accept that the guidance on seclusion is the NICE and the NIMHE guidance. I do
not think that anyone has any particular quarrel with that, except that what the Minister said to me
about wanting to leave it to clinical judgment has come up time and time again. This is not an area
that one would normally expect to leave to clinical judgment, because it has nothing to do with
treatment: it is being used simply to protect others from significant harm. That is very different
from the normal use of clinical judgment in a treatment decision. This is an important point, which
the Minister did not pick up. All noble Lords around the House are very concerned about attacks on
NHS staff, but it is precisely because seclusion is used to protect others from significant harm that
you want to be very clear about where it should be used—to protect staff and others from harm.
Given the lateness of the hour, and having voiced some of my objections to some of what the
Minister has said, I beg leave to withdraw the amendment. I shall take this away and consider how
we might come back, even at the very latest stage of the Bill—at Third Reading.
- 182 -
Amendment, by leave, withdrawn.
[Amendment No. 72 not moved.]
Baroness Meacher moved Amendment No. 72A:
After Clause 38 , insert the following new Clause—
“Local arrangements for assessment, conveyance and admission
(1) The 1983 Act is amended as follows.
(2) For section 140 substitute—
“140 Local arrangements for assessment, conveyance and admission
(1) It shall be the duty of every Primary Care Trust, in conjunction with—
(a) the NHS trusts contracted to provide in-patient mental health services and ambulance services
within its area; (b) the police authority or authorities within its area; and (c) the local social services
authority or authorities within its area,
to prepare, publish and maintain up-to-date a comprehensive scheme for the safe, timely and
effective management of the cases of patients within its area who may require urgent
admission to hospital for treatment for mental disorder, whether under this Act or otherwise.
(2) This scheme shall include details of—
(a) the arrangements for the assessment of urgent cases and for ensuring the safety of the patient,
carers, those carrying out the assessment and any other persons present during the assessment;
26 Feb 2007 : Column 1478
(b) the arrangements for obtaining a bed, if required, and the criteria for determining the relative
priority of urgent cases awaiting admission; (c) the arrangements for ensuring safe custody and
conveyance of patients who need to be admitted to hospital under section 6(1) of this Act; and (d)
agreed time-limits for response by the bodies listed in subsection (1)(a) to (c) above in cases of
urgency where there is a serious risk to the safety of the patient or others.””
The noble Baroness said: My Lords, I shall also speak to Amendment No. 72B. These amendments
are strongly supported by the British Association of Social Workers. The first amendment seeks to
ensure that the responsible organisations, the primary care trusts and others prepare and maintain a
scheme to deal quickly and efficiently with patients detained under the Mental Health Act who
therefore urgently need an in-patient hospital bed. The amendments set out the arrangements for
ensuring the safety of the patient, carers and professionals present during the assessment,
arrangements for obtaining a hospital bed and arrangements for ensuring the safe custody and
conveyance of the patient.
Why is this amendment important? At present, the only individual with a statutory responsibility for
a person’s safety and welfare, once that person has been formally assessed as liable to be detained,
is the approved social worker in person. That personal responsibility continues until the patient is
admitted on to a hospital ward. Frequently, it is unsafe to transport a newly detained patient without
- 183 -
the police and an ambulance, but last year a survey by the Association of Directors of Social
Services into the ASW service found that nearly 60 per cent of local areas reported problems with
accessing police and ambulance support. This level of problems occurs despite the fact that for a
number of years the code of practice has made it a requirement on local social services authorities
to have policies with police and ambulance services covering access to support. I understand that
the British Association of Social Workers is in discussion with the department about whether the
problems can be dealt with by the code of practice rather than through these amendments. The
experience to date, I have to say, is not encouraging.
Amendment No. 72A seeks to place the ultimate responsibility for conveying the patient to hospital
upon the health trust responsible for providing the treatment to a detainee. The approved social
worker or approved mental health practitioner under the new Bill would continue to undertake the
duties of assessment, application for detention and conveyance to hospital, but would be conveying
on the trust’s behalf. The important thing here is that in extremis the AMHP should be able to call
upon the trust’s director on duty to make sure that a bed is available for a detained person. Certainly
I am conscious of that in my trust. I know that if an ASW phoned our director on duty, something
would happen quickly.
I could give lots of examples of the problems faced by individual social workers, but I shall cite just
one. Due to the threats of an individual to his family members and their very real fears for their own
safety, and the fact that his mental state was causing
26 Feb 2007 : Column 1479
concern, a consultant asked for an urgent ASW assessment. This service user happened to be a
martial arts expert, which was a little unfortunate. The police refused to help. The ASW was
therefore sent into the house armed with nothing more than a mobile phone with 999 programmed
into it. Things got out of hand and she had to call the police urgently. Thankfully, all the response
cars in the county turned up, so the person was safe. However, had the police responded at the start,
perhaps a couple of officers might have contained the situation.
The availability of ambulances in these crises also varies considerably across the country, and again
if no ambulance comes, perhaps the police will not arrive either. They will come only if an
ambulance also comes to the scene. Who is left holding the problem? It is the individual ASW.
Alternatively, the ASW may be relatively fortunate. The police officers and an ambulance agree to
help to convey the patient to hospital, but even then—and I am very conscious of this particular
situation, having been rather close to it—it is quite possible for the ASW to arrive only to be told
that the bed has been filled by another emergency admission. The police officers say, “Sorry, we
can’t hang about. We have to go to another incident”. The ambulance driver says, “We can only
stay for another 10 minutes”. What is the ASW, and in the new world, the AMHP, supposed to do
in that situation? As the Bill stands, they will carry personal legal responsibility. That situation
simply should not happen, and I am sure that Ministers would agree. But the risk is very real on a
daily basis.
10 pm
Wards across the country are functioning with 100 per cent occupancy. In fact, in one of our
boroughs, bed occupancy is 103 per cent. Ward closures continue—we closed wards last year; we
will be closing some this year—in order to release funds for community-based services. The
amendment is of growing importance as in-patient hospital beds in our mental health services are
becoming an incredibly scarce resource. In my view, and I speak as the chairman of a mental health
- 184 -
trust, mental health trusts should have the statutory responsibility to ensure that detained patients
are safely conveyed to our hospital wards once they have been deemed liable to be detained.
I hope that the Minister will be willing to consider this amendment most carefully. I appreciate that
these issues are not straightforward, but I know that she will be as concerned as I am to avoid
serious injuries or worse to approved mental health practitioners who will be carrying the
conveyance responsibilities in future. Perhaps I might mention that many years ago, when I was an
ASW, a colleague of mine went to a house to assess a patient and she was decapitated. My interest
in this amendment is somewhat personal. I beg to move.
Baroness Royall of Blaisdon: My Lords, Amendments Nos. 72A and 72B are similar to
amendments that were laid in Committee, and I know that they are supported by the British
Association of
26 Feb 2007 : Column 1480
Social Workers—quite understandably, given the comments just made by the noble Baroness. I am
aware that in some parts of the country social workers can experience difficulties in accessing the
services that they need in order to safely convey and admit patients. I note the figures cited by the
noble Baroness and her graphic examples of problems experienced with ASWs. We fully
sympathise with their concerns and understand their frustrations, and I note the dangers. However,
we are not convinced that these amendments are the way to improve things, although clearly
improvements are needed.
The amendments seek to put the onus on trusts to sort out difficulties in co-ordinating the services
needed to convey and admit patients safely. I understand that approved social workers feel that they
as individuals cannot influence the availability of the services and that a trust as an organisation
would have more clout. However, approved mental health professionals should be supported by the
local social services authorities on whose behalf they are acting. Indeed, it is often the case now that
difficulties are escalated within the local social services authority, and the force of the LSSA is
brought to bear on the situation.
It is crucial that there are effective local arrangements and good ongoing communication between
all the bodies involved in conveying and admitting a patient. Amendment No. 72A would put a
requirement in legislation for such arrangements to be in place. However, the Mental Health Act
code of practice already says that there should be arrangements between the bodies involved in
assessing, conveying and admitting patients to hospital. All the code does is state what is selfevidently the job of local bodies to co-operate with one another to put in place effective local
services. They do not need guidance from the Government to tell them what is required. In many
parts of the country protocols that are in place are working well, but where that is not the case there
is no reason to believe that placing the requirements for protocols in legislation would make it any
more likely that those protocols would be effective or adhered to.
Organisations at a local level need to consider whether the arrangements that they are already
expected to have in place are working properly to protect patients and, of course, to protect their
staff. That can be done only at a local level. Changing the legislation is not the way forward. We
will consider how the code of practice can be used to emphasise further to local bodies what their
obligations are, and naturally we would welcome further comments from noble Lords.
In addition, I wonder if the increased emphasis on local area agreements in the local government
Bill currently being considered in another place will help to ensure that health services and local
social services work more closely together so that there really are more effective local
- 185 -
arrangements. In addition, I hope that the implementation of the Mental Health Bill will be an
excellent opportunity to remind all local agencies of their obligation to work together.
26 Feb 2007 : Column 1481
We sympathise with the sentiment behind the amendments, but we believe that these issues are
better dealt with through interventions at a local level. I therefore urge the noble Baroness, Lady
Meacher, not to press her amendments.
Baroness Meacher: My Lords, I am obviously disappointed at the Minister’s response. I hope that
we can discuss negotiating with the Home Office to improve responsibility for the police arriving at
these scenes. It seems to a number of people involved that the police are the key here—if they
arrive, the ambulances will arrive. If the police see their responsibility as being available for these
emergencies, that will be very helpful.
Baroness Royall of Blaisdon: My Lords, I note the noble Baroness’s comments. I undertake to
explore that issue further; speaking with local police authorities about being more aware of the need
to work more closely with the other agencies is a sensible step forward.
Baroness Meacher: My Lords, I am most grateful to the Minister for that suggestion. On that basis,
I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 72B not moved.]
Lord Patel of Bradford moved Amendment No. 72C:
After Clause 38, insert the following new Clause—
“Independent mental health advocacy
After section 125 of the 1983 Act insert—
“125A Independent mental health advocacy
(1) The appropriate authority must arrange, to such extent as it considers necessary to meet
all reasonable requirements, for help from persons to be known as independent mental
health advocates, to be available to qualifying patients.
(2) The help available under the arrangements must include—
(a) help in obtaining information about and understanding— (i) what medical treatment is being
provided to the patient; (ii) why it is being provided; (iii) under what authority it is being provided;
(iv) the requirements of this Act which apply in connection with the patient’s treatment; and (v) the
rights which can be exercised by or in respect of him under this Act, and (b) help (by way of
representation or otherwise) in exercising those rights.
(3) An independent mental health advocate authorised by a patient or his nearest relative on
his behalf may at any reasonable time, for the purpose of providing, in accordance with the
arrangements, help requested by the patient or his nearest relative, meet with the patient in
private.
- 186 -
(4) The appropriate authority may by regulations provide that a person may act as an
independent mental health advocate—
(a) only if requirements specified in the regulations are met in respect of him;
26 Feb 2007 : Column 1482
(b) only if requirements specified in the regulations are met in respect of any person with whom
arrangements are made for him to act as an independent mental health advocate; and (c) only in
circumstances otherwise specified in the regulations.
(5) In making arrangements under this section, the appropriate authority must have regard to
the principle that the provision of help under the arrangements should, so far as practicable,
be independent of any person responsible for the patient’s treatment.
(6) The following are qualifying patients—
(a) a patient who is liable to be detained by virtue of an application for admission for assessment or
an application for admission for treatment under Part 2 of this Act; (b) a community patient; (c) a
patient who is removed to a place of safety within the meaning of section 135— (i) in the execution
of a warrant under section 135; or (ii) by a constable under section 136; (d) an accused person
within the meaning of section 35 remanded under that section to hospital for a report on his mental
condition; (e) an accused person within the meaning of section 36 remanded under that section to
hospital for treatment; (f) a patient in respect of whom there is in force— (i) a hospital order; (ii) a
transfer direction; (iii) a hospital direction; (g) a patient, not being liable to be detained under this
Act, who is asked to consent to any form of treatment to which section 57 applies.””
The noble Lord said: My Lords, in moving this amendment I will speak to Amendment No. 72D as
well.
We left this subject in Committee on something of a high note, with the Minister undertaking to
consider this amendment during the Bill’s passage. As I understood the noble Baroness, Lady
Royall of Blaisdon, to have said earlier, the Minister is still considering it, so I hope this amendment
may jolly him along.
As there is no difference between us over the value of advocacy services, I shall not belabour that
point. I remind the Minister—unnecessarily, I know—that the Mental Capacity Act is soon to come
into force, with its special advocacy provisions. Indeed, the Government have made something of a
virtue of this in public in the past week.
This legislation has wide support among mental health practitioners and user groups. The Minister
will not need reminding that the Mental Capacity Act provides a statutory duty on authorities to
provide independent advocacy to persons who, for example, face serious medical treatment under
the powers of that Act. The glaring lack of such safeguards for patients who are formally detained
under the Mental Health Act is spelt out in Section 37(2) of the Mental Capacity Act.
I believe that this distinction between the rights of patients under the Mental Capacity Act and the
Mental Health Act is not only unethical in terms of equity of provision but dangerous. It is
dangerous because we run the risk of having two statutes that
26 Feb 2007 : Column 1483
- 187 -
have considerable overlap. The Mental Capacity Act is, and is seen to be, forward-thinking,
concerned with patient rights and protections, and so on, whereas the Mental Health Act appears to
be a set of second-rate provisions, outdated attitudes and the shifty machinations of a Home Office
forever seeking unfettered powers of social control.
Every time we allow some unjustifiable inequity between the way in which these two statutory
frameworks deal with patients, we move a step closer towards the Manichean system of a nice
mental health law and a nasty mental health law. The danger, as this House has heard before, is that
the nasty mental health law drives away those whom we would wish to seek early treatment, not
least on grounds of safety.
Such concerns take us slightly away from the subject immediately at hand. To return to the question
of advocacy, whether a detained patient is judged to be incapacitated or not in relation to certain
decisions about his or her care, we must never forget that such decisions are taken within a
framework of extraordinary disempowerment. I cannot see why patients detained under the 1983
Act should be any less deserving of statutorily-based advocacy services than incapacitated patients
falling under the terms of the Mental Capacity Act.
I hope that this puts some extra spark into the Minister’s deliberations. I beg to move.
26 Feb 2007 : Column 1484
Baroness Royall of Blaisdon: My Lords, I feel enthused and sparked up. In Committee, we said
that we would take away the issue of advocacy and consider the best way to make advocacy
services available. That is exactly what we have done, but tonight’s deliberations will inform us
more and will add spark to that debate. As I said in the previous debate on advocacy for children
and young people, this issue demands careful consideration, so we are continuing to develop our
proposals on the subject. We will bring them back when the Bill is considered in the other place. In
the mean time, we look forward to discussing those proposals with interested noble Lords, and I
would ask the noble Lord to withdraw his amendment.
Lord Patel of Bradford: My Lords, I am really pleased that at this late hour I have managed to
bring some spark into the House. I am very grateful for the Minister’s comments and, therefore, I
beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 72D not moved.]
Lord Hunt of Kings Heath: My Lords, my spark has all gone and I beg to move that further
consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned at 10.11 pm.
- 188 -
Report Stage – Tuesday, 27 February 2007
6.57 pm
The Minister of State, Department of Health(Lord Hunt of Kings Heath): My Lords, I beg to
move that the Bill be now further considered on Report.
Moved accordingly, and, on Question, Motion agreed to.
Clause 39 [Mental Capacity Act 2005: deprivation of liberty]:
Baroness Barker moved Amendment No. 73:
Clause 39 , page 35, line 25, at end insert—
“(6) P may not be deprived of liberty unless P has been examined and assessed by a
registered medical practitioner who is responsible for his care and is satisfied that the
following requirements are met—
27 Feb 2007 : Column 1562
(a) P has been found to lack mental capacity; (b) the deprivation of liberty is necessary for P’s
health or safety; (c) P’s condition is of a nature and degree that requires deprivation of P’s liberty
and that the restriction of P’s freedom is proportionate to the expected benefit to P; (d) there is
appropriate care or treatment available that will benefit P.
(7) Where P has been deprived of his liberty, such deprivation shall not continue unless P’s
underlying condition remains of a nature and degree that requires such confinement.”
The noble Baroness said: My Lords, in the absence of my noble friend Lord Carlile, who is away
due to commitments to do with his role in relation to terrorism, it is my privilege to move
AmendmentNo. 73 on his behalf. The Minister will probably have guessed that this is a probing
amendment. It relates to concerns that have been voiced at earlier stages in our debates by, among
others, the noble Baroness, Lady Knight of Collingtree, and my noble friend Lord Carlile. It reflects
a concern about people who may lack capacity and be discharged from hospital, perhaps into a
residential or nursing home, and who may at that point be incapacitated, temporarily or for a longer
duration.
The purpose of the amendment is simply to establish whether the Bournewood provisionswould
apply to people in that situation. It wouldbe enormously helpful if the noble Baroness could simply
address that question tonight. I beg to move.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs
(Baroness Ashton of Upholland): My Lords, I am grateful to the noble Baroness for being
extremely succinct and for representing the noble Lord, Lord Carlile, in her usually efficient and
effective manner. I shall address precisely the points that she has raised.
I say at the outset that the policy is that everyone should be assessed by a doctor and at least one
other professional. The draft regulations are framed so as to require the doctor involved to have
special experience in the diagnosis and treatment of mental disorder. One element in what the noble
- 189 -
Lord, Lord Carlile, is seeking is that that would include, for example, the expertise to identify when
physical causes were impacting on a person’s mental presentation, which might lead to the sort of
temporary incapacity that the noble Lord wanted us to refer to, as the noble Baroness did on his
behalf.
I am confident that the safeguards that we have will cover temporary incapacity. While the person
lacks capacity, they will be able to be covered by the Bournewood safeguards. The assessors will
have the ability to diagnose mental disorder and to recognise when a person’s lack of capacity is
likely to be temporary. It is critical that we give people the right training and ensure that they have
the right qualifications and experience.
However, because we are setting the period of authorisation on a case-by-case basis, we can ensure
that the authorisation is able to be short. The review must be triggered by the home or hospital if
there is a change; for example, if the person regains capacity or
27 Feb 2007 : Column 1563
is clearly moving in that direction. Of course, the representative can also trigger a review if all else
fails. I shall always keep the code under review and will look again to ensure that it identifies that as
fully as possible. But I hope that I have assured the noble Baroness about the safeguards and that I
have given her the explanation that she is looking for.
Baroness Barker: My Lords, I thank the noble Baroness very much. I am sure that my noble friend
Lord Carlile will find that reassuring, as indeed will the noble Baroness, Lady Knight of
Collingtree, who has been vociferous in her concerns on this matter. I thank the noble Baroness for
that clarification and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Ashton of Upholland moved Amendment No. 74:
Clause 39, page 37, line 3, leave out subsections (10) and (11) and insert—
“(10) If any function of making subordinate legislation conferred by virtue of any provision
of this Part of this Act is transferred to the Welsh Ministers (whether by virtue of subsection
(9) or otherwise)—
(a) paragraphs 34 and 35 of Schedule 11 to the Government of Wales Act 2006 do not apply; and
(b) subsections (11) and (12) apply instead.
(11) If a relevant statutory instrument contains regulations under paragraph 122, 154 or 155
of Schedule A1 to the Mental Capacity Act 2005 (whether or not it also contains other
regulations), the instrument may not be made unless a draft has been laid before and
approved by resolution of the National Assembly for Wales.
(12) Subject to that, a relevant statutory instrument is subject to annulment in pursuance of a
resolution of the National Assembly for Wales.
(13) In subsections (11) and (12) “relevant statutory instrument” means a statutory
instrument containing subordinate legislation made in exercise of a function transferred as
mentioned in subsection (10).”
- 190 -
The noble Baroness said: My Lords, I shall speak also to Amendment No. 84. I want to move
government amendments that enable all the regulations relating to deprivation of liberty
assessments to be made in the same set of regulations that must be laid before, and approved by,
each House of Parliament.
As noble Lords are aware, as things stand, mostof the regulations relating to deprivation of liberty
assessments must be made under the affirmative resolution procedure. However, the Mental Health
Bill provides that some regulations relating to the deprivation of liberty assessment procedure are
tobe made under the negative procedure; namely, prescribing the period or periods within which
assessors must carry out assessments; prescribing any information that a best-interests assessor must
provide to an eligibility assessor; and modifying the usual deprivation of liberty assessment
procedure when the supervisory body and managing authority are the same; for example, when a
local authority provides a care home.
The aim is to make things easier for everyone, and supervisory bodies in particular, in that they
willbe able to access all the regulations relating to deprivation of liberty assessments in one place.
Where
27 Feb 2007 : Column 1564
the assessment regulations are made in one set, as will be the case under this amendment, they will
all be subject to the same level of parliamentary scrutinyfor England—that is, the affirmative
procedure. In Wales, the regulations will be subject to equivalent procedures by the National
Assembly for Wales. I beg to move.
On Question, amendment agreed to.
[Amendment No. 75 not moved.]
Schedule 6 [Mental Capacity Act 2005: new Schedule A1]:
Baroness Barker moved Amendment No. 75A:
Schedule 6, page 73, line 4, at end insert—
“No charges for accommodation, care or treatment provided to P while deprived of liberty
2A Where the managing authority deprives P of his libertyby detaining him as mentioned in
paragraph 1(2), the appropriate NHS body or local authority which has authorised the
detention shall make arrangements for the provision of the accommodation with care or
treatment, and it shall be free of charge.”
The noble Baroness said: My Lords, we return to a subject that we debated in Committee. Anyone
who has read the record of our proceedings will know that the matter is, in essence, fairly
straightforward; namely, whether it is right for a person who has been deprived of his liberty to
have to pay for the period in which he is subject to authorised detention. I think it would be entirely
accurate to reflect our Committee stage by saying that we on these Benches feel that that would be
wholly wrong and that the Government are of a different view.
There are two reasons for bringing this matter back. The first is to underline its importance. We are
talking about people in care homes and hospitals who are not free to leave and who are therefore
unable to remove themselves from the situation. They are being detained and having to pay for it,
- 191 -
and, in our view, that is simply wrong. It places them in a unique position in that they are unequal to
anyone else who is lawfully detained.
The detention is subject to Article 5 of the European Convention on Human Rights, as is detention
under the Mental Health Act. Article 14 prohibits unjustified discrimination in the application of the
other articles, including Article 5. There is not necessarily any difference between people who are
detained under Bournewood provisions and people in the same accommodation who are looked
after under Section 117 of the Mental Health Act. They may both lack capacity, be compliant and
have a mental disorder or disability and need residential care—perhaps a high level of care—and
they can both be subject to legislation in their own interests; yet one person would be charged for
being there and another person would not.
Not surprisingly, this point was picked up by the Joint Committee on Human Rights in its report on
the Bill. The committee states at paragraph 91:
“In our opinion, to charge someone for accommodation in which they are deprived of their
liberty potentially engages civil rights and obligations, and therefore the right of access to a
court to determine those rights under Article 6 of the Convention.
27 Feb 2007 : Column 1565
There is a potential discrimination for the purposes of Articles 5 and 6 and Article 14, in that
a person deprived of their liberty in their own best interests in a hospital will not be charged
for the detention whereas a person deprived of their liberty in their own best interests in a
care home will”.
The two other points that I wish to raise were matters that we did not get a chance to talk about on
the previous occasion because we were rather hurried. I refer to the purpose behind the amendment.
In her reply to me last time round, the noble Baroness said that, if we were to make the change that
I was suggesting so that such care was free, there would be a perverse incentive for relatives to
ensure that their relatives came under the Bournewood provisions in order to evade paying for the
care. I am not wholly convinced by that argument. I can see why the Minister made it, but our
reason for bringing forward the amendment is to get relatives and everyone else to look at the
standards of the care packages that are provided for people who lack capacity.
My second point concerns the status of independent care homes. This time, the amendment would
ensure that, when a person was deprived ofhis liberty, the supervisory body would make the
arrangement and contract with the care home. The provisions to safeguard the Bournewood-type
patients throw into stark relief the fact that residents in independent care homes are not protected by
the Human Rights Act in the same way as patients in hospitals or residents in local authority homes.
That is because independent care homes are not considered to carry out public functions. It seems
rather irrational that a care home manager in one establishment can identify a potential deprivation
of liberty and yet such deprivation may be treated completely differently elsewhere because the
place in which it is happening is not deemed to be carrying out a public function.
For those good reasons, I thought that I would again try to persuade the Minister to think about the
matter and perhaps to persuade her colleagues that there may be a bit more at stake here than simply
public finance. I beg to move.
Baroness Ashton of Upholland: My Lords, I am grateful to the noble Baroness for raising the
issue again. I agree that it is very important that relatives and friends take the trouble and time to
ensure they are content with the packages of care provided in care homes, wanting them to be of the
- 192 -
highest possible standard. From her experience of chairing a health authority, the noble Baroness
will know how important it is that those who may be extremely vulnerable get the highest quality of
care. We are fortunate in the quality of care that many of our elderly people enjoy. Nonetheless, we
must be extremely vigilant.
As the noble Baroness would expect, I looked very carefully at the Joint Committee on Human
Rights report published on 4 February. There is a bit of confusion in the report on which I need to
get back to the committee. It refers to Article 6, which concerns the right to fair trial. As the noble
Baroness will know, that is not linked to the process of means testing to determine the extent to
which someone contributes to the cost of their care in a care home.
27 Feb 2007 : Column 1566
Access to justice, to a court, to challenge a deprivation of liberty authorisation is provided for with
non-means tested legal aid available for the purpose. I just wanted to put that on the record.
The NHS body or local authority that authorises the deprivation of liberty may well also be
involved in commissioning care arrangements, but it will not always be so. As the noble Baroness
said, where private arrangements have been made between family and a care home, the situation
will be different. We do not consider, having provided additional safeguards to protect human rights
of people who are unable to consent to arrangements for their care, that that is a reason of itself to
alter the arrangements to apply commissioning and funding of health and social care for individuals.
NHS care and treatment is free at the point of delivery, but major implications of providing free
care and treatment would arise in relation to care homes. People receiving those new safeguards
will largely be those with severe learning difficulties or older people with severe dementia or
similar problems. Many such people will be living in residential care settings and any financial
contribution that they make is determined by the national policy of means testing.
For some individuals, the need to ensure their safety may have led to greater restrictions in their
best interest which amount to what has been described as a deprivation of liberty. But I
emphasise—I want to say this very clearly—that if a person is in a care home and subject to a
standard authorisation to deprive them of their liberty, that can be only because an independent
assessor has said that it is necessary in their best interests to keep them safe. That is a critical part of
why the provisions are so important in the context of the Mental Capacity Act. It is part of their care
package to ensure that they are safe and well cared for that an element of deprivation of liberty must
take place, but the safeguards to protect human rights are now built into the Bournewood
provisions.
Because of that, we do not believe that that should lead to changes in how their care is
commissioned and funded. We think that it would provide unacceptable inequities between those
care home residents who are deprived of liberty and those who are not. In many cases, deprivation
of liberty does not result in someone being unable to do many things. It may be a deprivation of
liberty only in certain circumstances: for example, when they need to eat or in the evening, if they
are prone to wander. That is a very different set of circumstances from that which might prevail
under mental health legislation.
For those reasons, although I completely understand why the noble Baroness has brought it back, I
am not inclined to accept the amendment. I know that the noble Baroness accepts that the provision
is part of providing high quality care for the individuals concerned. I hope that she will withdraw
the amendment.
- 193 -
Baroness Barker: My Lords, I thank the noble Baroness for that full answer. As I anticipated, she
has not changed her mind. Neither have I, but it was important for us to put our views on record, not
least
27 Feb 2007 : Column 1567
because I believe that this will be a matter to which courts will turn their attention. For that reason,
ithas been a helpful exchange of views. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.15 pm
Baroness Ashton of Upholland moved Amendment No. 76:
Schedule 6 , page 76, line 21, at end insert “, or
(b) paragraph 66E applies (right of third party to require consideration of whether authorisation
needed).”
The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 77, 82 and 83. This
series of government amendments will give family and friends or any other concerned person a way
to triggerthe safeguards if they think that a person is being deprived of liberty and that hospital or
care home managers are failing in their duty to seek authorisation.
I pay tribute to noble Lords who raised this in Committee and draw the attention of noble Lords to
the role that stakeholder organisations are playing in helping us to get this very difficult policy
right. That helpful and constructive dialogue over the past few months has been very valuable. I put
that on record and state that the amendment is intended to address one of the concerns that they
have rightly raisedwith us.
In Committee, the noble Earl, Lord Howe, and the noble Baroness, Lady Murphy, made the point
that the safeguards would be further improved if action could be taken to initiate the authorisation
processby someone other than the hospital or care home managers when there is concern that a
person is deprived of liberty. I thank them for raising that matter and thank the noble Lord, Lord
Rix, who would have raised the matter had he been well enough to be with us in Committee, but
who raised it in spirit none the less.
I undertook to take the matter away and consider whether we could achieve that without, as noble
Lords will remember from our discussion, blurring the issue of who should have statutory
responsibility for obtaining an authorisation if a person needs to be deprived of liberty to provide
high quality care in their best interests. I think we were all agreed that that duty must rest with the
hospital or the care home managers. I remain convinced that the best route to follow in such cases is
to take the matter up with the care home or hospital in question. They can and, in most cases, would
then apply for authorisation. Sometimes, they might be able to allay the concerns of relatives or
friends. There may be a relevant order of the Court of Protection or an authorisation in place of
which the individual querying the matter is not aware.
I recognise that family and friends would be in a stronger position if it was known that they could
take a straightforward step to make sure that a person was assessed. The amendments provide
exactly that. They will enable anyone to take action if they have not been able to sort out the matter
by asking the care home or hospital to apply for authorisation. They can apply to
- 194 -
27 Feb 2007 : Column 1568
the supervisory body, which will appoint a best interests assessor to consider whether a person is in
fact deprived of liberty. An IMCA will be appointed if there is no one among friends and family to
consult. If the assessor identifies that an unauthorised deprivation of liberty is taking place, the full
assessment process will go ahead as if an authorisation had been applied for. If the care home or
hospital considers that the care plan needs to continue while the assessments are carried out, it will
have to issue an urgent authorisation and obtain a standard authorisation with seven days. The
amendments would not affect the right to apply to the Court of Protection to hear the case.
I am confident that the amendments achieve my aim, which is to ensure that clarity remains about
the duty of care homes or hospitals to apply for authorisation if it may be needed. Concerns about
deprivation of liberty are dealt with, first, by the care home or hospital concerned. If someone
thinks that a person may be deprived of liberty unlawfully, an assessment can be triggered. I hope
that noble Lords will welcome and accept the amendments.
Baroness Barker: My Lords, when I was little, if I had said to anyone that I would one day be a
Member of your Lordships' House, they might have thought that I had delusions of grandeur. If I
had told them that I would one day be understudy to the noble Lord, Lord Rix, I think that they
would have called the doctors. Today, it is my privilege to be the noble Lord’s understudy. I will try
to do him justice.
I pay enormous tribute to him. Although he has not been part of our debates, he has worked so hard
behind the scenes to plug away at these issues, which are most important. I join the noble Baroness
in sending the best wishes of the whole House to him. I thank the noble Baroness, as the noble Lord
would, if he were here, because she has fully addressed the concerns that we raised with her earlier.
What she has done is right.
Those of us who had the privilege to take part in deliberations on the Mental Capacity Bill thought
about and discussed long and hard the role and involvement of relatives in many decisions on behalf
of people who do not have capacity. Often, rightly, we decided that relatives should not play a role.
This time, we are absolutely right to say that they should and to exercise that tremendous safeguard
for people who are enormously vulnerable because they are deprived of their liberty, as happened in
the case that went to the European Court. The noble Baroness rightly identified all the things that
matter to them, such as having access to information and the requirement that once a deprivation
has been noted, it must be registered in a number of places. On my behalf and that of the noble
Lord, Lord Rix, I thank the noble Baroness very much for that. I beg leave to withdraw the
amendment.
Amendment, by leave, withdrawn.
Baroness Barker moved Amendment No. 76A:
Schedule 6 , page 82, leave out line 3 and insert—
“(3) The maximum length of an initial authorisation must not exceed six months, and the
maximum length of any further authorisation must not exceed 1 year.”
27 Feb 2007 : Column 1569
- 195 -
The noble Baroness said: My Lords, we return to a matter raised by the noble Lord, Lord Rix, and
others in Committee and one on which we still have to find agreement. The amendment is pretty
straightforward; it states:
“The maximum length of an initial authorisation [for a deprivation of liberty] must not
exceed six months, and the maximum length ... must not exceed 1 year”.
A large percentage of the people to whom these provisions will apply will be the elderly in
residential care. Many older people in residential care are extremely frail and their conditions
change over time, although they can change quite rapidly. For that reason, permitting the
deprivation of liberty for a year seems to us too long a period for it to persist. Therefore we are
making one more attempt to get the noble Baroness to agree that the noble Lord, Lord Rix, and I are
right in seeking a period of six months for an initial deprivation. I beg to move.
Baroness Ashton of Upholland: My Lords, it is always worth having another go to see if I can be
bent if not broken into looking at a point again. The noble Baroness will know that I have met
representatives from a number of organisations who raised thisissue with me. I thank them for their
time and consideration in coming in to talk to me about it. I am not going to go as far as the noble
Baroness wants, but I hope that in what I am able to say, she will be given enough comfort perhaps
to offer me half a thank-you on behalf of herself and the noble Lord, Lord Rix.
I agree completely with the principle lying behind all the noble Baroness has said: we want to
deprive people of their liberty only for the shortest time possible. My first point is that that will be
made perfectly clear in the code and training materials; it is absolutely essential. That is why we are
setting the authorisation period on a case-by-case basis on the best interests assessor’s
recommendation, which will be based on the person’s best interests in the particular circumstances
and the likelihood of change. I will add material to the code stating that authorisation should be
recommended for 12 months only if the assessor was confident that there is unlikely to be a change
in the person’s circumstances within that period. There will be people—noble Lords will be able to
think of them—about whom we can be sure that that is the case. The noble Baroness has expressed
concern that people should not reach for the ultimate ability to go to 12 months when a shorter
period would be better. The point was also made by the noble Earl, Lord Howe, in Committee.
The review and Court of Protection safeguards mean that if the deprivation of liberty is no longer
needed, it can and will be ended. We will make sure that information and support is provided for
families and carers to ensure that they can be effective in helping their loved ones to make use of
these safeguards, and we shall discuss that support later in our discussions this evening. I am
therefore confident at this stage that we are putting in place everything required to deliver our aim
of making sure that the deprivation of liberty does not continue longer than it has to. There will be
no default to 12 months, so I do
27 Feb 2007 : Column 1570
not support reducing the maximum period specified in the Bill because I do not want to have
unnecessary assessments taking place. They would merely divert resources from frontline care. The
noble Earl, Lord Howe, said in Committee said that we could not have it both ways. I could not say
that the case would not arise for all that many people and then argue that it is a resource problem.
The truth is that however many cases arise—I hope that there will be few, but there will be some—
it is nevertheless still a resource issue, although I agree that it is not a huge one.
I also do not want people or their families disturbed and unsettled in circumstances where it is quite
clear that there will be no change, but I accept that providing a period of 12 months with no ability
- 196 -
to change it does create an issue if I am proved to have been inaccurate in my assessment, or indeed
if a period of six months was not correct, or that over time it is considered that we ought to be able
to settle on another period. So I will ensure that when the Bill goes to another place, a power is
taken in England and Wales to reduce—and only to reduce, not to increase—the maximum period
at a future date if monitoring of the operation of the safeguards convinces the Government that this
is necessary. The monitoring body will report to the Secretary of State and will include these
statistics. That will be published and made available in the Libraries of both Houses, so the specific
information gathered by the body looking at this issue will be put in the public domain. If that
information leads to the conclusion that we need to amend the period of 12 months down to a lower
figure in order to address anything that may have arisen, the power will be in place to do so.
I hope that I have achieved by another route what the noble Baroness is seeking and that she feels
able to withdraw her amendment.
Baroness Barker: My Lords, that is a most helpful answer from the noble Baroness. I understand
why she does not want to make the changes to the legislation that we have proposed. However, I
accept the offer she has made. It will go a long way towards meeting our concerns. I thank her and I
beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Barker moved Amendment No. 76B:
Schedule 6 , page 82, line 21, at end insert—
“45A (1) This paragraph applies—
(a) to the relevant person, or (b) to— (i) anyone named by the person as someone to be consulted,
(ii) anyone engaged in caring for the person or interested in his or her welfare, (iii) any donee of a
lasting power of attorney granted by the person, and (iv) any deputy appointed for the person by the
court, when they are consulted by the best interests assessor under paragraph 4(7) of the Mental
Capacity Act 2005.
(2) Any person specified in sub-paragraph (1) has the right to the support of an appointed
independent mental capacity advocate during the assessment process.”
27 Feb 2007 : Column 1571
The noble Baroness said: My Lords, in moving Amendment No. 76B I shall speak also to
Amendment No. 80A with which it is grouped. We return here to one of our running discussions
not just about the Bournewood parts of the Bill, but throughout the legislation as a whole: the issue
of advocacy. The amendment would ensure that the relevant person or,
“(i) anyone named by the person as someone to be consulted,
(ii) anyone engaged in caring for the person or interested in his or her welfare,
(iii) any donee of a lasting power of attorney granted by the person, and
(iv) any deputy appointed for the person by the court”,
can have access to an independent mental capacity advocate during the assessment process if they
feel the need for it. It will also ensure that a person or their representative can have access to an
independent mental capacity advocate at any point during the authorisation period if they consider it
to be necessary.
- 197 -
At this stage I do not wish to restate the many points we have made throughout our consideration of
this Bill and when we discussed the Mental Capacity Bill as it went through the House about
advocacy being the cornerstone on which the whole matter rests. When a person lacks the capacity
to consent to their care and treatment, they are likely to need support in expressing their views.
While it is right that some of the representatives I have cited in that list may have the capacity to act
as an advocate for a person, they may not truly be capable of acting as an advocate for the person’s
welfare as opposed to, say, their financial circumstances. That is the reason for specifying the list
and providing that a person should have access to an advocate during the assessment process.
An advocate can enable detained patients to challenge decisions made by professionals where they
lack the capacity to do so themselves. Again, when considering the proposals for the reform of
mental health provision, the Joint Committee on Human Rights stated:
“Even the most elaborative and collaborative system for conferring and protecting rights is
unlikely to be fully effective unless, as a last resort, the patient has access to practical means
of exercising and, if necessary, enforcing their rights”.
For these reasons, I beg to move.
7.30 pm
Baroness Ashton of Upholland: My Lords, I hope that I can make the noble Baroness half happy.
Let me start with when someone is being assessed. The way that we have tried to tackle the matter
is that we have made sure that there is a professional appointment who is independent of the
provider and the decision-maker about their care. His role is to establish and report on what is in
their best interests. We call them the best interests assessor, the job title fits the job and that is what
they have to do. They are required by law to take into account the views of all the people listed
within the amendment. They have to have the skills to communicate with those people and to help
them input their views.
27 Feb 2007 : Column 1572
I said in Committee that I would strengthen the guidance and the draft code of practice on involving
friends, family and carers, and I will do it; I will cover the need to keep them informed so that they
know how to get involved in that process and the need to support them to play their part including,
for example, addressing language and communication needs that may exist. I do not want to go so
far as saying that we need the support of an IMCA at that point, unless there is no one available to
consult.We want the best interests assessor to approach interviews with friends and family from the
viewpoint of the best interests of the person who may be deprived of their liberty, which may not
always be the same as the interests of the family. It will be in many cases but it will not always be.
That is as it should be. Introducing an IMCA to help and support the family could shift the balance
away, and what we are interested in at that moment is the best interests of the person being
assessed.
The families tell us often that what they really need is information. We want to make sure that
families understand and are provided with information about the safeguards, about how to be
involved and who to speak to in their case, and we will be working with service users and families
to make sure that we get that right. Once an authorisation is granted, the role of the best interests
assessor falls away and they are extremely sympathetic to the point that was made in Committee
and has been made by organisations that I have met—that a family member or friend who is acting
as a representative could not have a level playing field of having access to quality advocacy
support. We are going to do something about that: as my noble friend Lady Royall said, we are
- 198 -
looking at advocacy more generally and coming back to it in another place. I would like to add that
into that mix because in a sense it is about the same issue, but we will do so and make sure that we
have advocacy support available to families and friends during an authorisation and beyond in the
way that the noble Baroness would expect. I hope that on the basis that the cup is half full she will
withdraw her amendment.
Baroness Barker: Yes, my Lords, I am getting fuller all the time. I thank the noble Baroness. She
has understood the difficulty that we are trying to get at: that people who are now charged with
making sometimes all the decisions about a person’s welfare need our support in order to do so. I
heard what she said and I look forward to reading about that.
Baroness Ashton of Upholland: My Lords, I know that the noble Baroness, Lady Neuberger, who
is sitting next to the noble Baroness, Lady Barker, and is about to leave us, has a birthday today. On
behalf of the House I wish her a happy birthday.
Baroness Barker: My Lords, I thank the noble Baroness for being my advocate. I will watch with
interest the proceedings in another place and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
27 Feb 2007 : Column 1573
Baroness Barker moved Amendment No. 76C:
Schedule 6, page 85, line 24, at end insert—
“58A (1) This paragraph applies if—
(a) a request is made for a standard authorisation, and (b) the supervisory body are prohibited by
paragraph 50(2) from giving the standard authorisation.
(2) The supervisory body must give notice to each of the following—
(a) the managing authority of the relevant hospital or care home; (b) the relevant person; (c) any
section 39A IMCA; (d) every interested person consulted by the best interests assessor.
(3) If the supervisory body are commissioning the care, they must do so in a manner that
makes it possible for the managing authority to provide the care in accordance with the
outcome of the assessment process.
(4) The supervisory body should review whether the managing authority is providing the
care in accordance with the outcome of the assessment process, and refer any concerns to
the relevant inspection body.
(5) The requirements listed in sub-paragraphs (2) to (4) must be complied with by the
supervisory body as soon as practicable following the request for a standard authorisation.”
The noble Baroness said: My Lords, this amendment would impose a duty to give information
about unauthorised deprivation of liberty. It would place in the Bill the Government’s amendment
in the draft code of practice—here I foreshadow a debate that we will move on to in a few
minutes—that the supervisory body should inform certain people of the fact that a request for an
authorisation was turned down. It would place in the Bill the Government’s proposal in the code of
- 199 -
practice that the supervisory body commissioning the care must do so in a way that makes it
possible for the managing authority to provide the care in accordance with the outcome of the
assessment process.
In addition, the amendment seeks to ensure that there is a mechanism for identifying cases where a
managing authority has failed to provide the care in accordance with the outcome of the assessment
process and for referring such cases to the relevant inspection body. I can guess what the Minister
will say about the status of the code of practice and matters being placed on the face of the Bill, but
we are talking about the detention of people and the deprivationof liberty; we are talking about
people who are particularly vulnerable in that they lack capacity. In comparable situations in which
people are detained, the force of statute is often brought to bear. We on these Benches believe that
there is an equivalence and that therefore the matter should be enshrined in the Bill.
While we recognise that it may be unnecessaryto inform an inspection body every time an
authorisation is turned down, we believe that it should be informed if the supervisory body has any
concerns that someone is still being deprived of their liberty when it has been decided that that
deprivation is not in the person’s best interests. The supervisory body is the most appropriate body
to fulfil the role of monitoring the situation and reporting any concerns to the relevant inspection
bodies. That in a nutshell is the reason for the amendment. I beg to move.
27 Feb 2007 : Column 1574
Baroness Ashton of Upholland: My Lords, let us begin from the principle that, if an application is
made for an authorisation of deprivation of liberty and it is not granted, the deprivation of liberty
should not take place, as it would be unlawful. We consider it extremely unlikely that any managing
authority would recognise and comply with a duty to request an authorisation of a potential
deprivation of liberty and then go ahead with an unlawful deprivationof liberty if the authorisation
was not granted, particularly—this is an important safeguard—as the outcome would be known by
the commissioner of the care, by the friends, by the family, by the person concerned and by any
IMCA who was involved.
The first two sub-paragraphs of the amendment do the same as the current paragraph 58. My
difficulty comes with what follows in sub-paragraphs (3) and (4), because it does not work. They
assume that if the authorisation has been turned down the reason is that the proposed care is not in
the person’s best interests, but that might not be the case; for example, the assessor might have
concluded that the care being suggested would not of itself be a deprivation of liberty, in which case
authorisation could not be granted and would not be needed. They might decide that the use of the
Mental Health Act needs to be considered. They might decide that the person does not have a
mental disorder or that the person has the capacity to consent.
The sub-paragraphs assume and indeed require that the person will continue to be cared for by the
managing authority that made the application, but that may not be in the person’s best interests. If
authorisation is not granted, decisions will need to be made about how to avoid the deprivation of
liberty. The assessor’s report will inform the decision, but there are likely to be a number of options.
The person may need to be in a different care home or in hospital. The person may remain in the
same place but the care plan may need to be reviewed or a proposed restriction not instituted. The
person may remain in their own home.
The commissioning and the care planning decisions will have to be taken in the person’s best
interests, as we have already discussed, with the views of families, carers and friends taken into
account. Our difficulty is that we are dealing with many varied circumstances. I have tried briefly to
illustrate some of them. Undoubtedly, cases and circumstances will arise that I have not outlined
- 200 -
and we cannot foresee, and the difficulty is that we cannot define in statute what should happen in
every case. That is why we have taken the choice to address the issue of what should happen when
authorisation is turned down in the code of practice.
I will read a little bit:
“The managing authority is responsible for ensuring that they do not deprive a person of
their liberty without an authorisation. The commissioners of care are responsible for
ensuring that the care package is commissioned in compliance with the Bournewood
safeguards. The action they will need to consider if a request for an authorisation is turned
down will depend on the reason why the authorisation has not been given”.
We then give examples, some of which I have indicated. The monitoring of the safeguards that we
will establish will be a further protection against
27 Feb 2007 : Column 1575
unlawful deprivation of liberty. We also state in the code that the supervisory body should consider
alerting the monitoring body if it is concerned that unlawful deprivation of liberty will not be
avoided.
On the basis that there are so many different circumstances and that the code, which has statutory
effect, will tackle that effectively, we believe that there is nothing between the noble Baroness’s
objectives and mine, but that we need to tackle this issue in the way that I have suggested. I hope
that she will feel able to withdraw her amendment.
Baroness Barker: Again, my Lords, I thank the Minister for her answer. It has been helpful to have
this exchange, not least because it throws up the variety of circumstances to which this legislation
applies. I suggest that the care of older people differs from that of younger people with learning
disabilities.
When the Minister was going through her examples, I was not sure exactly how the assessments
could be made. There would have to have been a level of concern in order for a question of
authorisation to have been raised, only for there to be the result that a person should either move to
another care home—and how would they do that?—or remain where they were. That said, I
understand what she says about the need to retain some flexibility, and therefore at this stage I will
not press the matter, having raised it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Ashton of Upholland moved Amendment No. 77:
Schedule 6, page 87, line 17, at end insert—
“Right of third party to require consideration of whether authorisation needed
66A For the purposes of paragraphs 66B to 66G there is an unauthorised deprivation of
liberty if—
(a) a person is already a detained resident in a hospital or care home, and (b) the detention of the
person is not authorised as mentioned in section 4A.
- 201 -
66B (1) If the following conditions are met, an eligible person may request the supervisory
body to decide whether or not there is an unauthorised deprivation of liberty.
(2) The first condition is that the eligible person has notified the managing authority of the
relevant hospital or care home that it appears to the eligible person that there is an
unauthorised deprivation of liberty.
(3) The second condition is that the eligible person has asked the managing authority to
request a standard authorisation in relation to the detention of the relevant person.
(4) The third condition is that the managing authority has not requested a standard
authorisation within a reasonable period after the eligible person asks it to do so.
(5) In this paragraph “eligible person” means any person other than the managing authority
of the relevant hospital or care home.
66C (1) This paragraph applies if an eligible person requests the supervisory body to decide
whether or not there is an unauthorised deprivation of liberty.
(2) The supervisory body must select and appoint a person to carry out an assessment of
whether or not the relevant person is a detained resident.
27 Feb 2007 : Column 1576
(3) But the supervisory body need not select and appoint a person to carry out such an
assessment in either of these cases.
(4) The first case is where it appears to the supervisory body that the request by the eligible
person is frivolous or vexatious.
(5) The second case is where it appears to the supervisory body that—
(a) the question of whether or not there is an unauthorised deprivation of liberty has already been
decided, and (b) since that decision, there has been no change of circumstances which would merit
the question being decided again.
(6) The supervisory body must not select and appoint a person to carry out an assessment
under this paragraph unless it appears to the supervisory body that the person would be—
(a) suitable to carry out a best interests assessment (if one were obtained in connection with a
request for a standard authorisation relating to the relevant person), and (b) eligible to carry out
such a best interests assessment.
(7) The supervisory body must notify the persons specified in sub-paragraph (8)—
(a) that the supervisory body have been requested to decide whether or not there is an unauthorised
deprivation of liberty; (b) of their decision whether or not to select and appoint a person to carry out
an assessment under this paragraph; (c) if their decision is to select and appoint a person, of the
person appointed.
(8) The persons referred to in sub-paragraph (7) are—
- 202 -
(a) the eligible person who made the request under paragraph 66B; (b) the managing authority of
the relevant hospital or care home; (c) any section 39A IMCA.
66D (1) Regulations may be made about the period within which an assessment under
paragraph 66C must be carried out.
(2) Regulations made under paragraph 122(3) apply in relation to the selection and
appointment of a person under paragraph 66C as they apply to the selection of a person
under paragraph 122 to carry out a best interests assessment.
(3) The following provisions apply to an assessment under paragraph 66C as they apply to
an assessment carried out in connection with a request for a standard authorisation—
(a) paragraph 124 (examination and copying of records); (b) paragraph 125 (representations); (c)
paragraphs 127 and 128(1) and (2) (duty to keep records and give copies).
(4) The copies of the assessment which the supervisory body are required to give under
paragraph 128(2) must be given as soon as practicable after the supervisory body are
themselves given a copy of the assessment.
66E (1) This paragraph applies if—
(a) the supervisory body obtain an assessment under paragraph 66C, (b) the assessment comes to
the conclusion that the relevant person is a detained resident, and (c) it appears to the supervisory
body that the detention of the person is not authorised as mentioned in section 4A.
(2) This Schedule (including Part 5) applies as if the managing authority of the relevant
hospital or care home had, in accordance with Part 4, requested the supervisory body to give
a standard authorisation in relation to the relevant person.
(3) The managing authority of the relevant hospital or care home must supply the
supervisory body with the information (if any) which the managing authority would, by
virtue of paragraph 31, have had to include in a request for a standard authorisation.
27 Feb 2007 : Column 1577
(4) The supervisory body must notify the persons specified in paragraph 66C(8)—
(a) of the outcome of the assessment obtained under paragraph 66C, and (b) that this Schedule
applies as mentioned in sub-paragraph (2).
66F (1) This paragraph applies if—
(a) the supervisory body obtain an assessment under paragraph 66C, and (b) the assessment comes
to the conclusion that the relevant person is not a detained resident.
(2) The supervisory body must notify the persons specified in paragraph 66C(8) of the
outcome of the assessment.
66G (1) This paragraph applies if—
- 203 -
(a) the supervisory body obtain an assessment under paragraph 66C, (b) the assessment comes to
the conclusion that the relevant person is a detained resident, and (c) it appears to the supervisory
body that the detention of the person is authorised as mentioned in section 4A.
(2) The supervisory body must notify the persons specified in paragraph 66C(8)—
(a) of the outcome of the assessment, and (b) that it appears to the supervisory body that the
detention is authorised.”
On Question, amendment agreed to.
Baroness Ashton of Upholland moved Amendment No. 78:
Schedule 6, page 101, line 20, at end insert—
“(ab) skills, (ac) training,”
The noble Baroness said: My Lords, I shall also speak to Amendment No. 79. These amendments
enable us to increase our ability to prescribe the training and skills of assessors. Schedule 6 to the
Mental Health Bill provides for the insertion of Schedule A1 into the Mental Capacity Act
2005.Part 9 of Schedule A1 contains provisions about assessments under the schedule. Included
withinPart 9 is a power to make regulations about the selection and eligibility of people to carry out
assessments under the schedule.
The Bill, as currently drafted, states that the regulations may make provisions about the
qualifications and experience of assessors. We would like to widen the regulation-making power to
enable the Secretary of State and the National Assembly for Wales to specify training that assessors
must have undertaken in order to be qualified to carry out the various deprivation of liberty
assessments, and the skills that assessors must have. For England, we will develop training modules
that will link to the Mental Capacity Act training programme and a competence framework for
deprivation of liberty assessors that will be consistent with competences being developed for
professionals fulfilling similar roles under the Mental Health Act. With regard to Wales, this will be
a matter for the National Assembly for Wales and the regulations prepared by it.
We believe that the extension of the regulation-making power is important in enabling us to ensure
that people undertaking assessments in connection with the deprivation of liberty safeguards are
27 Feb 2007 : Column 1578
properly qualified to do so, and that the training and skills of assessors are the same everywhere in
the country. I hope, therefore, that noble Lords will accept the amendments.
On Question, amendment agreed to.
Baroness Ashton of Upholland moved Amendment No. 79:
Schedule 6, page 101, line 28, at end insert—
“(2A) The provision that the regulations may make in relation to a person’s training may
provide for particular training to be specified by the appropriate authority otherwise than in
the regulations.
- 204 -
(2B) In sub-paragraph (2A) the “appropriate authority” means—
(a) in relation to England: the Secretary of State; (b) in relation to Wales: the National Assembly for
Wales.”
On Question, amendment agreed to.
Baroness Ashton of Upholland moved Amendment No. 80:
Schedule 6, page 103, line 16, at end insert—
128A (1) This paragraph applies to the supervisory body if—
(a) they are given a copy of a best interests assessment, and (b) the assessment includes, in
accordance with paragraph 44(2), a statement that it appears to the assessor that there is an
unauthorised deprivation of liberty.
(2) The supervisory body must notify all of the persons listed in sub-paragraph (3) that the
assessment includes such a statement.
(3) Those persons are—
(a) the managing authority of the relevant hospital or care home; (b) the relevant person; (c) any
section 39A IMCA; (d) any interested person consulted by the best interests assessor.
(4) The supervisory body must comply with this paragraph when (or at some time before)
they comply with paragraph 128.”
The noble Baroness said: My Lords, in moving this amendment I pay tribute to the noble Lord,
Lord Rix, again, the noble Baroness, Lady Barker, and the noble Earl, Lord Howe. This government
amendment strengthens the arrangements for dealing with a case where deprivation of liberty is not
authorised because it is not found to be in the person’s best interests but the best-interests assessor
reports that the person is in fact already being deprived of their liberty.
The safeguards that are already in the Bill areas follows. The person concerned, the care home or
hospital, any IMCA involved and all interested parties consulted by the best-interests assessor
would be told that the authorisation request had been turned down. The person concerned, the care
home or hospital and any IMCA involved will be given a copy of the best-interests assessment.
They will know the reasons why the assessor considers that the person is deprived of their liberty
and the reasons why it is not in the person’s best interests.
The draft code of practice states that the best-interests assessor should write their report in a way
that will help commissioners and providers of careto avoid depriving the person of liberty,
including
27 Feb 2007 : Column 1579
making recommendations; that the supervisory body should liaise with the hospital or care home to
ensure that the unauthorised deprivation of liberty does not continue; and that the supervisory body
should alert the monitoring body if it has concerns.
7.45 pm
- 205 -
Your Lordships will see from what I have said that safeguards have been provided, but I agree with
the view expressed in Committee about the importance of making sure that action is taken if
something has gone wrong and a person is deprived of liberty when they need not be, so I
undertook to look at whether we could strengthen the safeguards.
The amendment will require the supervisory body to inform in writing the person concerned, the
managing authority of the care home or hospital, any IMCA involved and every interested person
consulted in the best-interests assessment that an unauthorised deprivation of liberty is taking place.
That will strengthen the safeguards in two ways. First, it will explicitly draw attention to the fact
that the way in which the person is currently being cared for is unlawful. It does not depend on
people understanding that from reading any assessment report. Secondly, it includes family
members consulted by the best-interests assessor among the people to be informed. I also
committed to look again at the code, and we will include in the next draft more about the value of
involving families in deciding how to end the deprivation of liberty and examples to make it clearer
when the monitoring body should be involved.
I am convinced that the safeguards in these amendments will ensure that any unauthorised
deprivation of liberty is ended promptly. Again, I pay tribute to the noble Lords who invited me to
consider doing so. I hope noble Lords will accept the amendment.
On Question, amendment agreed to.
[Amendment No. 80A not moved.]
Baroness Barker moved Amendment No. 80B:
Schedule 6 , page 107, line 31, at end insert—
“Duty to provide a second opinion for serious medical treatment
(1) This paragraph applies to a person (P) who is deprived of liberty in accordance with this
Schedule if an NHS body is proposing to provide, or secure the provision of, serious
medical treatment within section 37(6) to him.
(2) P shall not be given the treatment unless a registered medical practitioner (other than the
medical practitioner in charge of the care of the patient) has certified in writing that the
patient is not capable of understanding the nature, purpose and likely effects of that
treatment but that it is in the best interests of the patient in accordance with this Act that the
treatment be given.
(3) Before giving a certificate under sub-paragraph (2), the registered medical practitioner
concerned shall consult two other persons who have been professionally concerned with the
patient’s medical treatment, and of those persons one shall be a nurse and the other shall be
neither a nurse nor a registered medical practitioner.”
The noble Baroness said: My Lords, I return to a matter that we discussed in Committee: the
proposed duty to provide a second-opinion doctor where someone who has been deprived of their
liberty, subject to the
27 Feb 2007 : Column 1580
Bournewood provisions, requires serious medical treatment. We discussed that matter at some
- 206 -
length and talked about the sort of treatment it could apply to, such as ECT, therapeutic sterilisation
or artificial nutrition and hydration.
A significant percentage of people covered by these proposals are patients who would meet the
criteria for detention under the Mental Health Act but for their compliance with the treatment
proposed for them,or, in some cases, because they are unaware of the treatment being administered
to them. Many of the others will be receiving medication and treatment for medical or physical
conditions, or both. Under the Mental Health Act there is a statutory second medical opinion
procedure for medication beyond three months—the same applies for ECT—and this is an attempt
to replicate that safeguard.
The Government have said that, under the Mental Capacity Act, an unbefriended person has the
right to an independent mental capacity advocate who can request a second medical opinion to help
them to decide whether the treatment is in the person’s best interests. I accept that that is a valuable
safeguard. However, this amendment would serve a different function. It is not about supporting the
patient and ensuring that what is proposed happens; rather, it provides scrutiny of the medical
decision and prior authorisation of the treatment by someone qualified to give it.
The report by the Joint Committee on Human Rights on the Mental Health Bill identified an
omission of something in this area that would have promoted or enhanced human rights. It argues
for,
“effective supervision and review of decisions to give treatment without consent for mental
disorder”,
where that,
“involves psychotropic medication or other significant interferences with physical integrity”,
such as ECT.
Apart from the appointment of an IMCA, the checks in the Mental Capacity Act are retrospective.
The committee considered that “effective supervision and review” required more than common law
and the provisions in the Mental Capacity Act. The committee recommended that that be remedied
through a second-opinion system or a visiting inspectoral body, such as the Mental Health Act
Commission.
We discussed this in Committee, when the noble Baroness did not agree with me that there was a
need for a second-opinion appointed doctor. She felt that it would be too great an imposition. She
cited cases where people had need for heart surgery or other treatment. I should make it clear that
this does not apply to emergency situations, although it is about serious treatment. I doubt whether
an IMCA would have the technical knowledge on which to decide whether the information they
were given by a doctor was correct. That is the point of difference between us, and it is why I return
to this amendment. I beg to move.
Baroness Ashton of Upholland: My Lords, I shall have another go at convincing the noble
Baroness that the provisions already contain the safeguards that she, reasonably, seeks in her
amendment. I know that the
27 Feb 2007 : Column 1581
- 207 -
noble Baroness does not mean this, but “deprivation of liberty” concerns only that and is not about
authorising any course of treatment. I know that she would agree with me on that.
The provision of treatment take us right back into the Mental Capacity Act itself. The provision of
treatment to a person deprived of their liberty hasto be in accordance with the arrangements and
safeguards in that legislation. There is no justification to adapt those for people deprived of their
liberty. Decision-making about serious medical treatment for these people should be handled as
with a group of people who do not have the capacity to consent, not differently. Where the primary
reason for deprivation of liberty is to allow treatment to take place, the benefits of being treated
would be considered as part of the best-interests assessment. We have to do the best-interests
assessment to determine that they can be deprived of their liberty. If serious medical treatment is the
reason for depriving someone of their liberty, the best-interests assessor would have to consider that
as part of their assessment. This is in addition to, and does not replace, the requirement to comply
with the rest of the Mental Capacity Act.
The requirements in the Mental Capacity Act governing decision-making when a person is not able
to consent are robust and practical. We had a lot of scrutiny on this during the passage of the Mental
Capacity Act. Where serious medical treatment is proposed, there will be a need, in accordance with
the “best interests” provision in the Act, to consult anyone named by the person, engaged in caring
for them or interested in their welfare. Any donee of lasting power of attorney or deputy appointed
by the court would have to be consulted. If there is nobody of that nature whom it would be
appropriate to consult, an independent mental capacity advocate would be appointed to represent
the person’s interests. Any of these people have the right to seek a second medical opinion
regarding serious medical treatment, in the same way that a person could have done had they had
capacity.
The noble Baroness asked whether the IMCAs would do that. I went to the IMCA pilot schemes to
see whether it was happening. I can confirm, having looked at it, that IMCAs obtain second
opinions where they consider it necessary. The practice that is already under way demonstrates that,
where they believe it is appropriate, they do. In addition, you can make an application to the Court
of Protection if there is a dispute that the proposed treatment would be in the person’s best interests.
The requirements in the Mental Capacity Act lead to greater involvement in decision-making by the
person concerned, ensure that what is decided is genuinely in the person’s best interests and that, as
far as it can be, the decision made is similar to the one the person would have made if they had had
capacity. We have the capacity for second opinions to be obtained by all the people I have
mentioned. With the safeguards in the Act, you can only act in the best interests of the person
concerned. If the deprivation of liberty were for the purpose of serious medical treatment, then the
best-interests assessor would have to determine that it was in the best interests. If all else
27 Feb 2007 : Column 1582
fails, the Court of Protection can intervene where people believe that serious medical treatment is
not in their best interests. I think that my package of safeguards meets what is of genuine concern to
the noble Baroness. I hope that she will be able to withdraw her amendment.
Baroness Barker: My Lords, I knew that my winning streak would come to an end at some point; I
am rather sad that it has ended here, as this is a serious matter. I listened to what the noble Baroness
said about the provisions only authorising deprivation of liberty and not treatment. My argument is
that, if a person lacks capacity and is deprived of their liberty, there is a greater need to ensure that
they are not subjected to wrong or inappropriate treatment. There is a need to provide greater
protection than would apply to somebody who did not lack capacity and who, as the noble Baroness
- 208 -
said, had the right to ask for a second medical opinion. That people deprived of their liberty should
have to rely on an IMCA to obtain a second opinion is insufficient protection.
I noted what the noble Baroness said about the IMCA pilots. Can she reassure me that, as the IMCA
scheme rolls out, the matter will be kept under supervision? I have a sneaking concern that perhaps
the pilots took place in an area where there was a well established tradition of advocacy and there
were well trained advocates who understood what they could and could not do. That may not be the
case all over; nor may homeowners be as supportive of advocates as they should be.
Baroness Ashton of Upholland: My Lords, I am happy to reassure the noble Baroness. One of the
great advantages of pilots is that we can learn all the lessons necessary. I would want to look
carefully at the circumstances in which those opinions were sought. If the noble Baroness is right,
and these are particularly well trained advocates, we need to ensure that everybody else involved is
equally well trained.
Baroness Barker: My Lords, I thank the noble Baroness for that. There is a transitional period to
be gone through. The noble Baroness talked about the Court of Protection, which has not until now
hadto make decisions about people’s welfare. It has primarily made decisions about goods and
property. She will understand, then, where some of my concern comes from.
We are on either side of a fine line. I would prefer that people deprived of liberty had the extra
protection afforded to them in my amendment. Clearly, the noble Baroness disagrees. We will
continue to keep this matter under scrutiny as the Act is rolled out. I hope that, if we find there is a
problem, we can return to it at some stage very quickly. In the mean time I beg leave to withdraw
the amendment.
Amendment, by leave, withdrawn.
Baroness Ashton of Upholland moved Amendment No. 81:
Schedule 6 , page 107, line 41, leave out “medical records” and insert “records relating to
the care or treatment of persons”
The noble Baroness said: My Lords, Amendment No. 81 makes it quite clear that the body
monitoring
27 Feb 2007 : Column 1583
the operation of these safeguards has the authority to require the production of, and to inspect, the
records that they need to see in order to fulfil their role. It replaces “medical records” with,
“records relating to the care or treatment of persons”.
The amendment would put it beyond doubt that the monitoring body has the right to see any
relevant records, including care records, care plans and needs assessments. I beg to move.
On Question, amendment agreed to.
Schedule 8 [Amendments relating to new section 4A of, & Schedule A1 to, Mental Capacity Act
2005]:
Baroness Ashton of Upholland moved Amendments Nos. 82 to 84:
- 209 -
Schedule 8 , page 121, line 24, leave out “either” and insert “any”
Schedule 8 , page 121, line 38, at end insert—
“(9) The third case is where, under paragraph 66C of Schedule 6, the supervisory body
select a person to carry out an assessment of whether or not the relevant person is a detained
resident.”
Schedule 8 , page 123, line 20, leave out sub-paragraph (2) and insert—
“(2) After subsection (4) insert—
“(4A) Subsection (2) does not apply to a statutory instrument containing regulations made
by the Secretary of State under Schedule A1.
(4B) If such a statutory instrument contains regulations under paragraph 122, 153 or 155 of
Schedule A1 (whether or not it also contains other regulations), the instrument may not be
made unless a draft has been laid before and approved by resolution of each House of
Parliament.
(4C) Subject to that, such a statutory instrument is subject to annulment in pursuance of a
resolution of either House of Parliament.””
On Question, amendments agreed to.
8 pm
Baroness Barker moved Amendment No. 85:
Before Clause 41 , insert the following new Clause—
“Code of practice: duty
After section 118 of the 1983 Act, insert—
“118A Code of practice: duty
(1) It is the duty of a person to have regard to the code if he is acting in relation to a patient
and is doing so in a professional capacity.
(2) If it appears to a court or tribunal conducting any criminal or civil proceedings that
either—
(a) a provision in the code, or (b) a failure to comply with the code,
is relevant to a question arising in the proceedings, the provision of failure must be taken
into account in deciding the question.
(3) The code must be followed unless there is good reason for departing from it in relation to
an individual patient and the reasons must be recorded.””
- 210 -
The noble Baroness said: My Lords, we return to a matter we discussed at considerable length at the
tail end of our deliberations in Committee and which noble Lords have continued to discuss since. I
refer to the status of the code of practice.
27 Feb 2007 : Column 1584
It is clear that the inter-relationship between the Bill and the code of practice has an importance in
this legislation, perhaps beyond and above many others, given that many other pieces of legislation
have attached codes of practice. The central matter is the status of the code in the light of the
decision by the Court of Appeal and the overturning of that decision by a committee of your
Lordships' House in the case of Munjaz.
I do not wish to rehearse all the arguments that were put in Committee. I simply wish to ask the
Minister whether he will reflect on his Second Reading speech in which he set out some of the court
findings about what would be deemed to be a cogent reason for departing from the code. Will he
explain the difference between a cogent reason for an authority to depart from the code as opposed
to a good reason, which was the ruling of the previous judgment in the Court of Appeal, because on
that matter rests the whole of the status of the code and its relationship with the primary legislation?
In Committee, the Minister referred—as does the Munjaz judgment—to the fact that departures
from the code of practice can be on a policy or a practice level and they can relate to more than one
person. They can relate to groups of individuals, as was the case at Ashworth Hospital and its policy
of using seclusion and restraint. In the light of that judgment, could individual hospitals make
substantial departures from the code of practice, however it turns out to be in the light of
discussions on the primary legislation? We need to understand those key facts before we can let this
measure leave your Lordships' House. They will be of key significance to the interpretation of many
aspects of the legislation and the code of practice.
At the beginning of our deliberations on the Bill, we talked about principles and the purpose of the
legislation. At the tail end, we are talking about the role of the legislation and how it will be
interpreted. I beg to move.
Lord Patel of Bradford: My Lords, I havealready alluded to the Department of Health’s quite
unsatisfactory approach to the mental health code of practice in our debate on Amendment No.
71A. Therefore, I will make only a brief contribution to this debate.
Many times in our debates the Minister has responded to calls for statutory measures by telling us
of the advantages, particularly in terms of flexibility, of the code of practice. The legendary
flexibility of the code is sometimes seen to be just that—a legend. We have had three editions in 20
years, and the Mental Health Act Commission currently produces a guidance note for services
outlining the parts of the book that practitioners should annotate to stay on the right side of the past
six years’ worth of case law.
More importantly, the code is being promoted by the Government in these debates as a way not
only to make services work better but to ensure that they work to what might be regarded as
minimum standards of practice and legality under human rights law. We are asked to accept this
role for the code, while it is also made explicit that it has no statutory
27 Feb 2007 : Column 1585
force and may be departed from when any service believes that it has a cogent reason to do so. I
- 211 -
echo the sentiments of the noble Baroness, Lady Barker, on cogent reasons and the explanation for
that.
Your Lordships may be surprised to learn that I am quite sympathetic to the argument that the code
is the most appropriate means of striking a balance between the need for certainty and predictability
in law, and the flexibility that may be required over time or may be required to deal with just those
sorts of difficult cases that would make bad law. The code needs to be supported to take this role on
board. Departures from it should be exceptional, not routine, and should be justified and recorded.
The amendment sets out a modest and reasonable means to make the code work better, and I
entirely support it.
Lord Hunt of Kings Heath: My Lords, we come, almost at the end of our deliberations on Report,
to a most important matter. As the noble Baroness, Lady Barker, and the noble Lord, Lord Patel,
have stated, the inter-relationship between the Act and the code is critical in terms of confidence
about how the legislation will be carried out in practice, and the advice and guidance that is given to
practitioners in exercising what are often difficult judgments. We need to acknowledge that,
legislate as we do, practitioners in the field need clarity, as we have all agreed. Equally, it is also
important that professionals have the confidence to exercise their professional judgment and
discretion within the parameters of the Act, but with sufficient flexibility too. In a sense, the code
enables us to have that discretion and professional judgment but within the clear parameters set
down by the legislation. I pay tribute, as I have done before, to the architects of the 1983 legislation.
The noble Lord, Lord Patel, referred to the three occasions on which the code has been amended
since the 1983 Act came into being. He may say that it should have happened more often, but it
clearly shows that the code is not set in stone. We have a mechanism for making adjustments to it in
the light of experience. There is also clear parliamentary scrutiny of the code and any changes to be
made to it.
Before responding to a number of points that were made, perhaps I may correct a statement that I
made in Committee on 29 January in relation to the code of practice. It may be found at col. 115 of
Hansard. In setting out the facts of the judgment in R (on the application of Munjaz) v Mersey Care
National Health Service Trust 2005, I stated that the judgment set out the circumstances which
could provide cogent reasons for not following the guidance in the code. While I stand by the
correctness of what I said, I now understand that the reasons are given in the interpretation of the
judgment in the 10th edition of Richard Jones’ Mental Health Act Manual, published by Thomson
Sweet & Maxwell. I apologise for this misattribution, and wish to put the record straight.
The amendment would spell out the status of the Mental Health Act code of practice in the
legislation. My problem with it is that it would also raise its status far closer to that of directions. It
also provides that the reasons for any departure from the code must be recorded.
27 Feb 2007 : Column 1586
The amendment would have the effect of overturning the position established by the House of
Lords in the case of Munjaz and would effectively reinstate the Court of Appeal’s overruled view
on the matter: that the code must be followed and may be departed from only in relation to an
individual patient. I accept that noble Lords, in proposing the amendment, wish to ensure that
patients are treated effectively and consistently in accordance with the guidance in the code, but this
amendment is not the right way of achieving it.
We are considering this matter carefully and will continue to do so. We understand the advantages
of placing the status of the code in legislation. That is why, as part of the promised amendment on
principles, I will bring forward at Third Reading a provision setting out the status of the code, but I
- 212 -
must make it clear that it will not be the restrictive status proposed in the amendment. Rather, it will
be a status consistent with the judgment of the Appellate Committee of this House in Munjaz.
This is already implicit in the Act. As I said to noble Lords in Committee, we will strengthen the
introduction to the code. I readily accept that the current introduction and the draft introductiondo
not give sufficient guidance and clarity to professionals on the status of the code of practice.
Therefore, in addition to introducing an amendment on the status of the code to be put in the Bill,
we will clearly need to look carefully at the drafting of the code of practice in relation to its status. I
am happy to share that with noble Lords who have taken part in this debate so that we may have the
benefit of their advice and wisdom.
It is clear that people must understand what the code means in practice and that the people to
whomit is addressed must have regard to it. This was confirmed by the Appellate Committee of
your Lordships' House. The committee said that it was not sufficient merely to have regard to the
code, in the sense of being able to deviate from it as a person sees fit, but, rather, that the people to
whom it is addressed must follow its guidance except where they have cogent reasons to depart
from it. The dictionary definition of “cogent” is “convincing and compelling”. I am not sure how
much further I can go on that. It is pretty clear that one has to have a jolly good reason for departing
from it. The requirement that cogent reasons must be shown for any departure sets a high standard
which is not easily satisfied. A court, in reviewing any departures from the code, should scrutinise
the reasons given for the departure with the intensity which the importance and sensitivity of the
subject matter require.
The problem with the amendment is that it would raise the status of the code beyond what is either
necessary or sensible. It would have the effect of limiting the flexibility of practitioners to develop
local policies to reflect the needs of particular groups of patients. It might run the risk of ossifying
professional practice and make it harder for patients to know how they are likely to be treated. I
accept that a delicate balance has to be struck between the principles enunciated in the Bill and the
Act and the
27 Feb 2007 : Column 1587
discretion that needs to be given to practitioners in the code of practice. I think that we would all
agree that professionals need discretion, but they need to be discreet within the principles
enunciated in the Act and in the code of practice. Equally, we do not want to reach a position in
which professionals are leftin too much of a straitjacket when using their professional discretion.
I do not pretend that this is easy or that these matters are easy for a professional on the ground.
These are difficult matters and it is a difficult judgment, but we happen to believe—and we believe
that we are confirmed by the decision of your Lordships' House in the Appellate Committee—that
we have the balance right.
I also believe that it is very important to recognise the comments made by the noble and learned
Lord, Lord Hope, when he discussed the question whether Ashworth was free to depart from the
code as a matter of policy, and not just in relation to individual patients or groups of patients. The
noble and learned Lord could see no reason why it should not be able to do so,
“provided of course that it can demonstrate that it had a good reason for doing so”.
He also referred to the,
- 213 -
“obvious danger that, if the Code could be departed from in the case of individual patients or
groups of patients where no written guidance was available, decisions to do this would be
open to attack as being arbitrary because their consequences were unregulated and
unpredictable”.
8.15 pm
There is no question that practitioners should have proper regard to the code of practice and keep
records of significant departures from the guidance in the code. However, I worry about the
implicationsof the amendment, which could increase the level of bureaucracy requiring practitioners
to consider all aspects of the code in respect of each individual patient and recording any reason for
departingfrom it.
We do not favour an attempt to raise the status of the code any further towards that of directions. It
is guidance—important guidance, but guidance none the less. Overall, any such change risks
reducing the flexibility of the operation of the Act. The current position is that while the code gives
guidance, it leaves professional discretion on the interpretation of the statutory provision to the
professionals responsible for detaining and treating patients and allows, when there are cogent
reasons to do so, the policies which depart from the guidance in the code to be developed in a way
which provides transparency and clarity for patients and professionals.
I understand how important it is to get this right and wish to give as much clarity as possible to
noble Lords and practitioners in the field. That is why, while I do not accept the amendment
proposed by the noble Baroness, we will propose an amendment at Third Reading, as part of the
amendment on principles, which I hope will make it clear that the status of the code as set out in
Munjaz is brought into legislation.
27 Feb 2007 : Column 1588
Baroness Barker: My Lords, I thank the Minister for his reply. It is not surprising that ever since
1983 the House has been discussing this question and Members on either side of the House—or
whichever side they happen to be on at the time—simply disagree. That said, it is helpful that the
Minister has alluded to the fact that we wait to see with the amendment. It is a matter of supreme
importance, given all that has been said by noble Lords all the way through our discussions—and
not simply thosewho wish to defend the rights of patients but those who wish to see the issue
clarified for practitioners, who are often highly exposed to criticism about their failures, especially
with regard to cases when therehas been a tragedy. Practitioners are having their work scrutinised
and their failures put under the microscope.
For those reasons, it is important that there is consistency and clarity between primary legislation
and the code of practice. They were very different documents in draft. I take the point that the code
of practice will be substantially revised in light of the discussions that we have in this House and
another place, and that this part in particular—that is, the relationship of the principles in the code
of practice to the rest of the measures—is one that will definitely be revised.
There is a distance between us. We do not at the moment have a clear way forward, but we may at
Third Reading. However, at this point I thank the Minister for his answer and I beg leave to
withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 9 [Transitional provisions and savings]:
- 214 -
Lord Hunt of Kings Heath moved AmendmentNo. 86:
Schedule 9 , page 125, line 34, at end insert—
“(2) The amendments made by sections (Electro-convulsive therapy, etc.) and (Section
(Electro-convulsive therapy, etc.): supplemental) do not affect the application of a certificate
under subsection (3) of section 58 of the 1983 Act which—
(a) relates to electro-convulsive therapy (by virtue of regulations under subsection (1)(a) of that
section), and (b) is given before the date on which those amendments come into force.
(3) But any certificate under section 58(3)(b) of the 1983 Act that the patient has not
consented to electro-convulsive therapy ceases to apply when those amendments come into
force.”
On Question, amendment agreed to.
Schedule 10 [Repeals and revocations]:
Baroness Barker moved Amendments Nos. 87to 89:
Schedule 10 , page 128, line 25, at end insert—
“Health and Social Care (Community Health and Standards) Act 2003 (c. 43)
In Schedule 4, paragraph 51.”
Schedule 10 , page 128, line 25, at end insert—
“Civil Partnership Act 2004 (c. 33) In Schedule 27, paragraph 86(a).”
27 Feb 2007 : Column 1589
Schedule 10 , page 128, line 25, at end insert—
“National Health Service (Consequential Provisions) Act 2006 (c. 43)
In Schedule 1, paragraph 63.”
On Question, amendments agreed to.
Lord Hunt of Kings Heath moved Amendments Nos. 90 to 94:
Schedule 10 , page 129, line 34, column 2, at end insert—
“In section 146, the words from “128” to “guardianship)”.”
Schedule 10 , page 130, line 21, column 2, leave out from “88(3)” to end of line 22 and
insert “—
(a) the words “to Scotland or Northern Ireland”, (b) paragraph (a), and (c) in paragraph (b), the
words “in Northern Ireland,”.”
- 215 -
Schedule 10 , page 130, line 22, column 2, at end insert—
“In section 146, the words from “88” to “138)”.”
Schedule 10 , page 130, line 23, column 2, at end insert—
“In Schedule 1, paragraph 2(5).”
Schedule 10 , page 131, line 10, at end insert—
“Part 8AMiscellaneous
Reference
Children Act 1989 (c. 41)
Extent of repeal or revocation
In Schedule 13, paragraph 48(5).”
On Question, amendments agreed to.
Clause 45 [Commencement]:
Lord Hunt of Kings Heath moved AmendmentNo. 95:
Clause 45, page 38, line 41, at end insert—
27 Feb 2007 : Column 1590
“( ) A statutory instrument containing an order under this section which makes provision by
virtue of subsection (4)(b) (including provision within section 46) is subject to annulment in
pursuance of a resolution of either House of Parliament.”
The noble Lord said: My Lords, I do not believe this amendment is controversial. It deals with the
commencement of provisions in the Bill. The power in subsections (4)(b) and (5) of the clause, to
make transitional provision to modify the application of the Bill will be used to make temporary
modifications to the amendments being made in Schedule 4 to the Bill to the Administration of
Justice Act 1960, the Courts-Martial (Appeals) Act 1968 and the Criminal Appeal Act 1968.
As Clause 45 is currently drafted, orders made under it are not subject to the negative or affirmative
resolution procedure. That is the usual practice with a commencement order. However, in its report
on the Mental Health Bill, the Delegated Powers and Regulatory Reform Committee recommended
that all orders that contain transitional or saving provision should be subject to the negative
resolution procedure. The amendment will ensure that that happens. I beg to move.
On Question, amendment agreed to.
Clause 47 [Extent]:
Lord Hunt of Kings Heath moved Amendments Nos. 96 and 97:
Clause 47 , page 40, line 18, leave out from “3” to end of line 19
Clause 47, page 40, line 20, leave out “and 4” and insert “, 4 and 19A”
On Question, amendments agreed to.
- 216 -
House adjourned at 8.21 pm.
- 217 -