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The Minister of State, Department of Health (Lord Warner): My Lords, I beg to move that this Bill be now read a second time. There has always been, and will continue to be, much debate about the purpose and balance of mental health law. This area is controversial, and understandably so, as it involves issues of personal liberty and intrusion into people’s lives. However, the Bill is a relatively small part of the Government’s agenda for mental health. Perhaps more important is our progress on improving the range and quality of mental health services available across the country. Nevertheless, we need to ensure that our legal powers are as clear and up to date as possible.
The Bill primarily amends the Mental Health Act 1983 to help protect patients and the public from harm and to modernise the legislation to reflect current mental health service provision. It introduces new safeguards into the Mental Capacity Act 2005 for people who lack capacity and are deprived of their liberty in their own best interests. We also need to bring our legislation fully into line with the European Convention on Human Rights.
Although one in six of us suffers from a common mental health problem at any point in our lives, most of us will never need treatment under statutory powers. For instance, while over 900,000 people are seen by specialist mental health services at any one time, only about 15,000 of those are detained under the Mental Health Act. We do not need new legislation to go on improving services—we will continue to do so under general NHS legislation.
Let me be clear about the improvements we have put in place on mental health services, because this provides the context within which this legislation will be implemented. We are spending £1.25 billion more on mental health services than in 1999. That is an increase of more than a quarter in real terms. Mental health, at £7.2 billion, represents the largest single element of programmed budget spend in the NHS. There are now record numbers of staff working in mental health. Since we came to office, there are 9,400 more psychiatric nurses, 1,240 more psychiatric consultants and 3,080 more clinical psychologists.
We are improving access to mental health services through new outreach teams and crisis resolution teams to provide care in patients’ homes, through new early intervention services for young people and by providing more secure places for people with personality disorders. During 2005–06, crisis resolution teams provided 84,000 episodes of home treatment for people who would otherwise have been admitted to hospital. By the end of March 2006, about 19,000 people were receiving care from assertive outreach teams.
I recognise that a small minority of people at risk of harming themselves or others are in circumstances that justify treating them under compulsion. In those circumstances, a measure of compulsion may be the most compassionate thing to do. I accept that a high threshold needs to be reached before a clinical decision is made to detain and treat a patient under compulsion. The thresholds created by such criteria are fundamental to the balance set up by the Act. They establish when it is right that a clinician step in because the risk of harm to a patient or others outweighs a patient’s individual rights.
In any such legislative framework, we need to ensure that patients’ rights are safeguarded and that clinicians are clear about the process that must be followed under those circumstances. It is essential that detention and treatment under compulsion is only ever for a proper clinical purpose. The current legislation provides a framework of the kind that I described, but the Bill amends that framework with a number of key changes. The legislation needs modernising, because society and mental health services have changed since the previous Mental Health Act came into force more than 20 years ago.
I freely acknowledge that we had intended to replace current legislation with the previous Mental Health Bill published in September 2004. However, many stakeholders cited the positive aspects of the Mental Health Act 1983 in their evidence to the Joint Committee in the pre-legislative process. We have listened carefully to those views and to those expressed by mental health organisations, patients, clinicians and the general public. That has resulted in a shorter, more focused Bill covering essential measures. We now have a Bill that will help to ensure that people who need to be treated for the prevention of harm get the treatment that they need when they need it. Secondly, the Bill will bring the legislative framework up to date with current developments in mental health services, and strengthen patient safeguards.
Supervised community treatment is probably the key change in the Bill and is an area of some controversy. It is important not just from a patient and public safety angle but because clinical practice itself has changed. At present, most patients treated under the Mental Health Act are detained in hospital. That reflects the fact that, in 1983, most acute mental health services were provided in hospital. However the world has moved on and we now have a wide range of community-based mental health services, some of which I mentioned earlier. We also know that some form of compulsory community treatment is established in jurisdictions in New Zealand, Australia, Canada, Israel, Sweden, Belgium, Portugal and Scotland.
It is clear that there is now scope for some patients to be treated under compulsory powers but to live in the community, not in hospital. For suitable patients, supervised community treatment meets the need for a framework for their treatment and safe management in the community, instead of detention in hospital. That modern approach strikes a balance between individual autonomy and protection of the patient and the public.
I hope that we will not hear arguments in this House that we should go back to the future and reserve compulsion for detention in hospital. We have made it clear that, to be eligible for supervised community treatment, patients must have had an initial period of detention and treatment in hospital. This means that their medical condition and treatment needs will be well established before they go into the community. Criteria are set out in the Bill on whether a patient is suitable for supervised community treatment. It will be for clinicians, working with approved mental health professionals, to determine against those criteria whether a patient should be put on a community treatment order. There is no question of supervised community treatment being imposed on people who have not been detained in hospital first.
We know that some patients stop taking their medication or treatment once they leave hospital, and so relapse and end up being readmitted. This detrimental cycle is often referred to as the revolving door. Patients on supervised community treatment will benefit from a structure designed to promote safe community living. This will reduce the risk of relapse and re-detention. They will be asked to comply with conditions to help prevent relapse, such as living in a certain place, attending an out-patient clinic and agreeing to take medication under the direction of their responsible clinician.
If, despite all this, a patient’s mental health does deteriorate again, there will be scope to take action to prevent crisis. Under supervised community treatment, patients can be recalled to hospital, if they need to be, for treatment. This is important because the power of recall provides the means to tackle relapse, and to avoid its potentially adverse consequences for the patient or someone else. Recall to hospital allows patients to be treated quickly and to return to the community straightaway if it is clinically safe to do so.
I recognise that there were some concerns about our proposals for supervised community treatment, but we have tried to deal with them. I assure the House that it is not about forcing people to have treatment in the community. If a patient refuses consent to treatment, it can be given only on recall to hospital. Forcible treatment against a patient’s will cannot be given in the community where the patient lacks the capacity to consent unless the treatment is immediately necessary—for example, to save the patient’s life.
Supervised community treatment is a new, modern and effective way to manage the treatment of patients with serious mental health problems. It will allow patients, so far as possible, to live normal lives in the community. This will reduce the risk of social exclusion and stigma associated with detention in hospital for long periods of time or with repeated hospital admissions.
We have published a draft code of practice that provides guidance in more detail, and we are happy to have comments on how to improve it. Supervised community treatment will be suitable for a minority of patients who have already been detained in hospital. There will be clear criteria for eligibility, safeguards for patients, and strict provisions for review and appeal, exactly as they apply to detained patients.
Let me turn briefly to measures that simplify and clarify the current legislation. At present, a patient being treated under the Act often needs to be assigned to one of four separate categories of mental disorder. We wish to replace these with a simpler single definition of mental disorder under which a patient’s needs and risks, not the label that happens to be applied to a person’s mental disorder, determine when action is taken. This simpler single definition will also make the Act easier for clinicians to use and for others to understand. This will not alter the way in which the Act deals with learning disability. Similarly, alcohol and drug dependence will remain excluded from the definition of mental disorder, as they are now, but two other exclusions in the Act will be removed. The first relates to promiscuity or other immoral conduct, which is redundant. No one could now regard such behaviour as mental disorder. By contrast, the present exclusion for sexual deviancy is simply wrong. If a person has a clinically recognised mental disorder, the fact that the disorder manifests itself, for example, as voyeurism or paedophilia should not be an obstacle to using the Act where it is justified to protect the patient or other people.
We will also introduce a new requirement that appropriate treatment must be available for patients subject to detention in hospital for treatment or on supervised community treatment. This will reinforce the fundamental principle that detention and supervised community treatment must always be for a clinical purpose. The test replaces the more selective “treatability test”, whose many drawbacks include contributing to a culture in which certain groups of patients are labelled untreatable and thereby are denied services. That may have been convenient for service providers, but it was not very useful to patients and was sometimes dangerous to the public.
The appropriate treatment test is designed to ensure that no one will be brought or kept under compulsion unless suitable treatment is available for them. It will not be enough for treatment to exist in theory, which in itself is a considerable patient safeguard. The treatment must be not only available and appropriate to the medical condition but appropriate to the circumstances. For instance, factors such as how far the services are from the patient’s home or whether those services are culturally appropriate will need to be considered. That is very much in line with the move across the NHS towards more tailored, individual patient-focused services. It is a change that links mental health very much to the mainstream of NHS reform and improvement.
Another shift across the NHS has been the modernising of medical careers, making sure that the right person is doing the right job to the benefit of patients. In line with this, we intend to broaden the range of professionals who can take on the key roles of responsible medical officer and approved social worker. The responsible medical officer role is being replaced with the role of responsible clinician. A patient’s responsible clinician will have overall responsibility for their case and make key decisions, such as whether a patient should be discharged or go on supervised community treatment. Allowing the responsible clinician role to be taken on by a broader range of appropriately skilled and trained professionals will give hospitals the flexibility to select someone whose skills best meet the patient’s treatment needs. Where a patient mainly needs treatment from a doctor, such as medication, a doctor will be the responsible clinician. But, for example, if a patient has a personality disorder and the treatment mostly involves psychological interventions, such as cognitive behavioural therapy, a psychologist may have the skills most appropriate to the role of responsible clinician for that patient.
The current approved social worker role is being replaced by the role of approved mental health professional. The functions of the role will remain largely unchanged, but the role will be opened up to a broader range of professionals, often working in the same integrated community mental health teams as approved social workers.
We are committed to improving patient safeguards and will do this by taking a power to allow the time to be reduced before a patient’s case is referred to the mental health review tribunal. Of course, a patient can always apply for a tribunal hearing and this will not change their current rights, but it will improve the safety net for those who do not apply. Currently, patients who do not apply wait for six months before their case is referred to the tribunal. We want to reduce that, but we will not use this power until hospitals and tribunals have capacity to meet the reduced time limits. This responds to evidence provided to the Joint Committee.
Two other important patient safeguards are being introduced. The first will give patients the ability to apply to the county court to displace the nearest relative if they believe they are unsuitable; for example, if the relationship with the patient is abusive. This is important as the nearest relative has various powers under the Mental Health Act such as being able to apply for or to block detention, to request a review of detention and to receive certain information about the patient. The court will be allowed to displace the nearest relative indefinitely, making this difficult time less arduous and complicated for all those involved.
We will also make some amendments to the Mental Capacity Act 2005 in response to the 2004 judgment of the European Court of Human Rights. The court found that a man had been unlawfully deprived of his liberty in Bournewood Hospital because he had not been admitted under a legal process which included safeguards against arbitrary detention, and he was not able to benefit from speedy access to a court to consider his case. The Bournewood safeguards will protect the human rights of people who are not able to decide about their care and who, for their own protection, need to be cared for in a hospital or care home in a way that deprives them of their liberty. This could apply, for example, to some people with severe learning disabilities or dementia. These safeguards will set up a legal process of independent assessment of each case for depriving the person of liberty. Each person will have a representative who is given the right to initiate a further review of their case or to apply to the Court of Protection on their behalf.
We have recognised that clinicians have confidence in the 1983 Act and are familiar with it. We have listened carefully to the wide variety of strong views expressed. We have considered all the arguments and now have a balanced and focused group of measures that improve patient safeguards, modernise terminology and produce proportionate changes in the area of supervised community treatment that will benefit patients and the wider public in the small minority of circumstances where they are appropriate. We will of course listen carefully in Committee to any improvements that can be made and, as I said earlier, we are also willing to listen to any suggestions for improving the draft code of practice. We must recognise that changes in our mental health legislation are needed. They have admittedly been a long time coming but, the longer we delay, the more our mental health legislation falls behind the advances made in services and in human rights legislation. The time for change is now. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Warner.)
Baroness Carnegy of Lour: My Lords, I am sure that the whole House has listened with enormous interest to the Minister’s very clear explanation of the somewhat complicated contents of this important Bill. As I listened, I found myself reflecting that occasionally, though mercifully not often, legislation is clearly needed but it is difficult to know precisely what changes to the law should be made or even what the alternatives are. This Bill is an example of that. It has a long history: seven years of careful and skilled consideration, including two previous draft Bills, two reports and much consultation. Yet there is still considerable anxiety and disagreement about whether what the Government are now proposing is right.
Unlike a number of noble Lords due to speak later in the debate, who know a great deal about the subject matter of the Bill—I have a former Secretary of State for Health sitting beside me, which is somewhat unnerving—I am a complete layman in these matters. I have not been formally involved in the previous consideration of the Bill, but I have a particular interest for three reasons. When, many years ago, I served as the chairman of a medical research ethics committee, we had within our area of responsibility a large hospital for people with severe mental health problems. Inevitably, some research proposals that came before us, such as trials of certain drugs, could be carried out only by involving patients in that hospital—patients unable themselves to give their assent to participate. The committee gave each proposal careful consideration, centring on the potential benefits for such patients of the drug, the safeguards and issues of assent. Difficult decisions had to be made, but I believe that they were not entirely dissimilar from those that have to be made on this Bill.
I have a personal interest in the Bill because of contact with mental disorder problems through cases among my own friends and family. I am sure that I share that experience with many other noble Lords. I do not believe that that contact is at all irrelevant to our discussions.
I am interested in the Scottish dimension to the Bill. It applies mainly to England and Wales, but there are cross-border arrangements in Schedule 5, under Clause 32. In addition, the Minister touched on the fact that the Scots Parliament has recently legislated on these matters and useful comparisons may be possible.
Quite a lot of the Bill is completely incomprehensible without the Explanatory Notes, due to how it is drafted in terms of amending other legislation. Having read the Explanatory Notes, I should like to make one general point on what lies at the heart of the main provisions of the Bill. I refer to rights—those of patients, children, their families and the rest of the community. The briefing I have seen—some of which I received only an hour or two ago—and the problems met by predecessor Bills centre mainly on deep anxiety about the rights of patients and of those suffering from a mental disorder, and what the Government propose for them. That is not surprising. This is, after all, a health Bill; it is about patients and of course Parliament must take those rights very seriously. It is always when the most vulnerable appear threatened that Parliament must be at its most vigilant.
We must be very careful in our considerations. Other people have rights, too, not just the most vulnerable. Parliament exists to protect the rights of all people and to balance them when they conflict. It is so easy, in our concern to protect those who cannot protect themselves, to forget the major threat those self-same people can be to others in certain circumstances, as well as to themselves. The court cases which have been discussed often in relation to the Bill illustrate this graphically and disturbingly, as did a moving article which some of your Lordships may have read in the Observer two Sundays ago. The father of a 17 year-old with schizophrenia described in simple, factual, unemotional detail how the system as it exists, operating with the best will in the world, handled the young man and his family, to the young man’s great danger and suffering, and who knows what fate.
The status quo will not do—the Minister has said that. It must be wrong in extreme cases, in the name of rights and freedom, to allow someone to fail to take his medication if that means he becomes dangerous to other people or to himself. It must be wrong, too, in the name of rights and freedom, to allow someone with a caring family to become homeless, unprotected and out of that family’s reach. It must be wrong, in the name of rights and freedom, to forget that sometimes, for some people, compulsory detention is salvation. Subsequent treatment in the community, if it can be made to work, may be able to be designed so as to be a salvation, too.
My simple point—your Lordships may think it is too naïve but I believe it is important—is that, as we work our way through these proposals, it must be possible to maintain a proper balance of consideration. This may be a health Bill about patients but it is also about families, friends, communities and public safety. The problems confronted by the Government in the Bill are difficult but they are real problems; they affect the freedoms and rights not only of the weakest but of us all. At the same time, let us remember that the system as it is cannot continue.
Lord Rix: My Lords, the journey towards a new Mental Health Act over the past eight years or so has been a long one. I cannot help feeling that, although there have been some interesting steps along the way, the journey has taken us back where we started, with a rather disappointing Bill. It fails to take into account the concerns of most people who work in mental health services and of most people who use mental health services.
I had the privilege of serving with MPs and Peers of all parties on the Joint Committee on the draft Mental Health Bill under the chairmanship of the noble Lord, Lord Carlile. We heard evidence from a wide variety of experts before making a long series of recommendations which we believed would have substantially improved the legislation and created a legal framework for compulsory mental health treatment which would have enjoyed the support of most of those who required it. Reading the new streamlined Bill, it feels that the only point we made that the Government have accepted is that the 2004 draft Bill was too long and too difficult to follow. Indeed it was—but that does not mean that a shorter Bill is necessarily better, especially as the shorter Bill retains most of the provisions we were most concerned about and omits some of the better ones such as those relating to advocacy and improved patient representation. It may be that our report was too long and too difficult for the Government to understand too.
My role on the Joint Committee was to keep plugging away on the question of learning disability. I welcome the fact that the Bill’s single definition of mental disorder now excludes learning disability in most cases. But it retains the caveat that people whose only mental disorder is a learning disability may be subjected to compulsion where that disability,
“is associated with abnormally aggressive or seriously irresponsible conduct”.
These words are very familiar to me because they arrived in the 1983 Act after a long three-way process of negotiation on the telephone between the then Minister, the noble Lord, Lord Elton, myself, then in my capacity as secretary general of Mencap, and a copy of Roget’s Thesaurus. It was the best compromise we could then reach between the Government’s position that people with a learning disability should come under the scope of the Act, and my position that people with a learning disability are not ill and should not be treated as if they are. It appears that the Department of Health’s position, 23 years and a change of Government later, has not changed—but neither has mine.
Learning disability was not then, and is not now, a mental illness. In many cases, of course, where a person with a learning disability is aggressive or irresponsible, that can be a sign that he or she has a mental illness that would benefit from medical treatment—in which case they can be treated under compulsion if necessary anyway—but that is not always the case. It may, for example, be a sign that he or she is in pain or is otherwise distressed but has difficulty communicating this or explaining it to others, and is frustrated. Responding to a person’s pain or distress with detention and forced medication is unlikely to improve things.
I would much prefer to see a complete exclusion from the scope of the Bill of people whose only mental disorder is a learning disability. After all, if people with a learning disability lack capacity, and if treatment is in their best interests, they can in any case be treated under the Mental Capacity Act. That is an Act in which I also have an interest as I was part of the Joint Committee scrutinising it, when it was the Mental Incapacity Bill, under the chairmanship of the noble Lord, Lord Carter.
A recommendation both committees made regarding the Bills we were scrutinising was that principles should be on the face of those Bills, rather than being relegated to a code of practice. Such principles make legislation much easier for practitioners to understand, and form an important safeguard. However, while principles are now on the face of the Mental Capacity Act, the Government have so far refused to accept that they should be part of the Mental Health Bill. I hope that they will be able to change their mind on that, or, if not, that they can explain why such principles as best interests, non-discrimination, least restrictive alternative and child welfare are not compatible with the legislation as proposed.
The Mental Capacity Act is crucial to the Bill, as much of the Bill is concerned with amending that Act in respect of Bournewood patients; that is, patients who lack capacity and are deprived of their liberty. If, in redrafting the Mental Health Bill, the Government were motivated by the desire to avoid inordinate length and complexity, that concern appears to have disappeared in relation to Bournewood patients. The relevant sections of the Bill—Clauses 38 and 39, and Schedules 6, 7 and 8—amount to more than 50 pages.
The Bournewood provisions have received far less publicity than the other sections, but they were mentioned by the Minister, Rosie Winterton, on the “Today” programme on the day the Bill was published. She rightly noted that perhaps thousands of people who lack capacity may be being deprived of liberty, and that they currently do not have the same access to a mental health tribunal. Listeners might have been forgiven for assuming that the Government wanted to give them the same access to such a tribunal, but that is not the case. No, they have access instead to the Court of Protection, which lacks the expertise of the tribunal in making judgments about care plans and detention.
In fact, the Government’s proposals for Bournewood patients leave them lacking several of the safeguards enjoyed—if “enjoyed” is the word—by Mental Health Act patients. They may be deprived of liberty in an emergency for up to seven days, as against 72 hours for Mental Health Act patients. They may have the detention authorised for up to 12 months, as against six months for Mental Health Act patients. They have no statutory second medical opinion procedure for medication beyond three months or for electro-convulsive therapy. They have no entitlement to free aftercare for care and treatment consequent on the care and treatment they received on detention. While the safeguards for Mental Health Act patients and Bournewood patients need not be identical, those for Bournewood patients should not be second rate. I hope that the Government will think again about the unequal two-tier system they are proposing to set up and give better safeguards to patients who are, by virtue of their lack of mental capacity, perhaps the most vulnerable in the whole health and social care system.
The vulnerability of people with learning disabilities in residential care was shockingly highlighted earlier this year by the report of the Healthcare Commission and the Commission for Social Care Inspection on the abuse of patients in learning disability services in the Cornwall Partnership NHS Trust. The report was prompted not by the managers of those services, many of whom were culpably unaware of the abuse that was taking place, but by patients’ families and by the hard work of East Cornwall Mencap Society. Families and friends are often the first people to become aware of abuse or poor practice within hospitals and care homes, and yet the Bill proposes that the only person with any right to call for an assessment and authorisation of possible deprivation of liberty in a hospital or care home is the manager of the hospital or care home in question. I hope that the Government will consider amending the Bill to ensure that third parties will have the right to request an authorisation of the deprivation of liberty to make sure that the responsibility for identifying deprivation of liberty is not exclusively placed upon the very people responsible for depriving them of liberty in the first place.
Given the importance of ensuring that hospital and care home managers follow best practice in relation to the care of vulnerable people, I am very concerned that the focus on authorising deprivation of liberty may obscure the fact that, in almost all cases, deprivation of liberty is unnecessary and should not be authorised.
The Bournewood provisions should be about preventing deprivation of liberty, not rubber-stamping it. Depriving a person of liberty rarely, if ever, reflects best practice. Whatever else one might want to say about the detention in Bournewood Hospital of the autistic man known as HL, which led to the Bournewood judgment, it certainly did not represent the least restrictive possible care regime. It would be helpful if the Governments could give more examples of when a person who lacks capacity in a hospital or care home should be kept in circumstances which amount to a deprivation of liberty under Article 5 of the European Convention of Human Rights. I am not sure that this is very often, if ever, best practice and I am not sure that we should be writing new laws to allow it to happen.
I regret that this still seems a deeply flawed Bill. Those of us who have played a part in this eight-year process know that this is not for want of effort, evidence and argument. It is still not too late to undo most of those flaws. I know that noble Lords from all sides of the House and individuals and organisations involved in every aspect of the care and treatment of people with mental health problems will be working hard together to make improvements across the board. I urge the Government to listen to them.
The Lord Bishop of Manchester: My Lords, as the noble Lord, Lord Rix, powerfully indicated from his very considerable experience and wisdom in this area, many aspects of the Bill are a disappointment. As he said, it marks the latest stage in a lengthy argument about the purpose of mental health legislation. The decision not to proceed with the 2004 draft Bill was wise, not least in view of the breadth of opposition to it. However, the Bill now before your Lordships has not taken sufficient account of the criticism brought against several of its proposals, not least, as the noble Lord, Lord Rix, indicated, by the comprehensive report of the Joint Committee chaired by the noble Lord, Lord, Lord Carlile of Berriew.
The Bill seeks to strike a balance between the rights and autonomy of patients and the safety of both patients and the public. Certainly, Christian teaching in its concern to protect vulnerable people requires due weight to be given to both aspects. Autonomy is a vital safeguard for mentally ill people in giving priority to their opinions, feelings and interests concerning care and treatment over and against the interests of others, including the relatively powerful professionals and institutions treating them. However, autonomy may need to be limited or indeed overridden, either because, as the noble Baroness, Lady Carnegy, said, someone poses a danger to themselves or, less commonly, to other people, or because their ability to make decisions has been significantly impaired by their illness. Regrettably, the latter criterion is absent from the Bill.
Six issues are of particular concern to these Benches. First, as the noble Lord, Lord Rix, said, is the absence from the Bill of a set of general principles for the care and treatment of people with mental health problems. That is very disappointing. Such principles expressed in statute rather than in codes of practice would be helpful to practitioners and reassuring to service users not only when facing questions about compulsory powers but as a broad guide to good practice.
Secondly, if the definition of “mental disorder” is to be simplified, as proposed in Clause 1, it is important that the specific exclusions from coverage of the Act should be maintained and, preferably, extended. Compulsory detention and treatment should be based strictly on mental disorder and should certainly not be used for the purpose of social control. I welcome the continued restriction on the circumstances in which people with learning disabilities can be subjected to compulsion, and the exclusion of substance abuse. I note what the Minister has said and what has been written in background material on sexual deviance. In Committee, it may be useful to debate all these matters and possibly certain cultural and political beliefs when considering grounds for exclusion. Problems in applying the categories should be tackled by training and not by the adoption of an excessively broad definition.
Thirdly, the potential danger posed by a relatively small number of people with severe personality disorders that are judged to be untreatable must not be allowed to blur the distinction between compulsory treatment and preventive detention. The criterion of “appropriate medical treatment” employed in Clauses 4 to 6 without the requirement of therapeutic benefit to the patient is unacceptably vague. It threatens to turn mental health professionals into guardians of public safety rather than what they are meant to be, which is agents of care and healing. If, as the Government argue, there is no desire to detain people without a clinical purpose, why not say so explicitly? Those who are untreatable but are believed to pose a serious risk to other people should be dealt with under criminal justice rather than mental health legislation.
Fourthly, there is perhaps the most controversial part of the Bill, the proposals in Clauses 25 to 29 for supervised community treatment. They arise from real shortcomings at present in dealing with patients who have been discharged from hospital and then suffer relapse in the community. However, those failings, which as we know sometimes have tragic results, are not solely the result of the absence of compulsory treatment. Too often, they reflect the inadequacy of aftercare and support services and failure to work effectively with patients and carers within the existing law. That said, I accept that there is a case for community treatment orders to be applied to what the Joint Committee described as a,
“clearly defined and clinically identifiable group of patients”.
That would entail raising the threshold of eligibility to include previous relapse, requiring consultation with carers, narrowing the conditions of the order to residence and availability for treatment, and setting a time limit. The requirement that a patient should abstain from particular conduct is, as the Mental Health Alliance has commented, tantamount to creating a “psychiatric ASBO”. We must think carefully about designing community treatment orders so that they will be effective for their intended purpose.
Fifthly, it is welcome that in Clause 38 the Government have moved to remedy the so-called Bournewood gap, which was referred to both by the Minister and the noble Lord, Lord Rix, by amending the Mental Capacity Act. While logical in its way, this has the effect of creating a complicated set of procedures with safeguards that are inferior to those of the Mental Health Act. Patients who lack the capacity to consent to detention and treatment will be disadvantaged in terms of their rights to a second medical opinion, to a hearing and to aftercare. They will be disadvantaged in the maximum length of a detention order and lack of access to a mental health review tribunal. In addition, their relatives will not be able to request an assessment of detention or an ordering of their discharge. This smacks of minimal compliance with human rights legislation and I hope that in subsequent debate in Committee your Lordships will be able to suggest suitable improvements.
Finally, I regret that the limited scope of the Bill has diverted attention from the primary need to improve mental health services. If we were to take seriously the right of patients to timely assessment of mental health needs, to independent advocacy and to non-discriminatory treatment, we would be less preoccupied with crisis intervention and a great deal of avoidable suffering and distress would have been prevented. The Scottish mental health Act of 2003 offers a good starting point in that respect. We will need to return to these urgent questions which, together with families and carers, directly affect one quarter of the population of this country.
Debate interupted
Second Reading debate resumed.
Baroness Morgan of Drefelin: My Lords, as the Minister said, the Government are making enormous strides in the development of mental health services. They are spending £1.25 billion more on mental health services now than in 1999, an increase of more than a quarter. Most importantly, access to mental health services is improving with the provision of new outreach teams and crisis-resolution teams aimed at providing care in patients’ homes and early intervention. Outcomes for people are beginning to improve and suicide rates are the lowest since records began.
It is completely appropriate for the Government to be concerned to get the balance right between public safety and patients’ rights to mental healthcare and to endeavour to update mental health legislation to keep pace with the growth of modern community-based patient services. I think it was UNISON that, in its briefing on the Bill, said,
“progress towards reform of the Mental Health Act 1983 has hitherto been arduous”.
Members of your Lordships’ House who have taken part in the debate so far have echoed those sentiments. It has been a long road that has brought us to this point.
As this is going to be an involved debate, I shall not focus on areas that I know others are likely to cover. However, I would like to add my voice to concerns about the question of treatability by having a broad definition of mental disorder and a wide definition of treatment. I am concerned about the ethical position with regard to the use of treatment without specific or potential benefit to the patient for the purposes of control. I understand that there is a balance to strike in the interests of public safety, but I do not yet understand the safeguards in the Bill well enough to put my mind at rest in this regard.
I am also concerned about the detail underpinning the new community treatment orders, particularly issues about the nature of the conditions of residency and behaviour as well as questions about information sharing and confidentiality. Are we, for example, going to involve landlords in the making of these orders? Will neighbours be aware of these orders? A lot will depend on the trust that we place in mental health professionals to supervise the orders fairly and effectively.
I want particularly to focus on the missing word “advocacy”, to which the noble Lord, Lord Rix, has already briefly referred. Advocacy is key to promoting the rights and needs of those detained under mental health law. In a mental health context, an advocate is someone who supports another person in expressing their views and concerns; who helps to access information and services; who defends and promotes their rights, and explores choices and options. An advocate can reduce a person’s anxiety and promote a constructive relationship between the service user and the psychiatrist.
Being detained under mental health legislation can be an overwhelming and distressing experience. The support of an advocate can help service users to negotiate the complicated mental health system. For people in crisis who may feel that they have little control over what is happening to them, an advocate can be an invaluable source of support, representation and information. Experience shows that the early and ongoing support of advocates reduces the need for admission to hospital and involvement with other agencies such as the courts and homelessness services. Advocates can help by limiting the escalation of financial, housing, personal and medication problems. During episodes of hospital care, tensions can be eased, misunderstandings resolved and a constructive approach to recovery established through an advocate. As a result, the use of compulsory powers can on occasion be more short-lived and patients may be less fearful of compulsory care.
The Government have a duty to promote race equality and reduce racial discrimination under the Race Relations (Amendment) Act. It is well documented that people from black and ethnic minority groups have a significantly worse experience of mental health services. They are more likely to be treated under the Mental Health Act, to be sectioned, to receive higher doses of medication, as well as being more likely to be restrained or secluded while in compulsory care. I believe that introducing a statutory right to independent advocacy would be a positive step in promoting race equality and reducing discrimination. For example, an advocate can improve communication and the flow of information between parties, ensure that social, cultural and racial factors are appropriately considered during the consideration of care and treatment options, and ensure that the rights of the service user are upheld. Having access to an advocate can save time and even costs spent on tribunals and appeals because conflicts can be resolved without recourse to legal action. As I understand it from the charity Mind, there is also emerging evidence that advocacy is linked to a reduction in cancelled tribunal hearings, suggesting that advocacy can reduce hold-ups in the system and improve efficiency.
The Government have decided not to include a provision for advocacy services in the Bill. I want to question the merits of that approach, particularly as I understand that the Government are looking very seriously at how advocacy services can be improved and made more accessible. The Joint Committee on the draft Bill, to whose members I pay tribute for their amazing work in considering the proposals, came up with strong and thoughtful recommendations on advocacy. The Joint Committee said that there should be a duty in the Bill to provide independent mental health advocates to meet the reasonable requirements of patients as soon as any statutory procedure is commenced. It went further, recommending that there should be a duty to ensure independent advocacy for all patients with a mental disorder who should have an opportunity to use such services right from the start of an initial examination.
The Government responded positively to the committee’s recommendations, saying that they are keen to ensure that patients are given adequate support at all times when the new legislation is in operation. There was even talk about how codes of practice should be used. But now we find that there is no mention of advocacy in the Bill. This, as I am sure noble Lords will agree, is a missed opportunity that could easily be put right.
As I understand it, staff are very supportive of the idea of working with advocacy organisations. There are many parts of the country where best practice is already established. I am particularly concerned that advocacy services should be made available to people who are being considered for community treatment orders with conditions to which I have alluded. Such conditions, if breached, can put someone back in hospital; they can affect where people live and their behaviour. Would they, for example, cover how loud someone’s music should be played? Surely a vulnerable person in this situation is extremely likely to benefit from automatic access to an advocate.
If the Bill is to be a progressive strand in the Government’s already successful mental health strategy, perhaps the extension of control should be matched by the introduction of new rights of access to independent advocacy for the most vulnerable members of our society.
Baroness Bottomley of Nettlestone: My Lords, I am more than happy to follow the noble Baroness and her call for advocacy. In a Bill where civil liberties are to be removed, we must make every possible effort to make sure that individuals have that right. It is a point made by many in the Mental Health Alliance. I do not think that anyone has so far paid tribute to the alliance. There was a time when 77 organisations coming together with a shared voice to articulate the needs of that group of patients so often overlooked within our health services would have been unthinkable. I warmly commend its work; I admire and respect all it has done, even though my conclusions are not entirely those of the alliance.
I am sorry that the noble Lord, Lord Rix, is not here. My own background was in the subnormality world. As a girl, I looked after subnormal children—as they were then known—on holiday. I was horrified that these youngsters had no proper clothes, no proper toys, no care and no nurture. I then worked in some of the subnormality hospitals where children, just because they had learning disabilities, had no proper rights. They were not properly regarded in the education system and were treated like sick people, not citizens. The dramatic change we have seen in our generation concerns people with mental health problems and those with learning disabilities who used to be incarcerated— out of sight and out of mind—in simply appalling institutions, facing abuse and difficulties. There has been a dramatic change, and I want to register that.
The great movement to get people out of long-stay institutions and into communities was enlightened. Dramatic new pharmaceutical products enabled people to live as decent human beings, without being a danger to themselves or others, and to improve their quality of life. What we have seen in the 10 years since I held ministerial office is a dramatic increase in psychological treatments. CBT is treated as an important port of call. I pay great tribute to the noble Lord, Lord Layard, and his work at the London School of Economics on The Depression Report. I am delighted that the report is from the Centre for Economic Performance as opposed to a health department. It will help us to remember that 1 million people are on incapacity benefit because of their mental health problems. What an appalling waste of talent.
The noble Baroness, Lady Morgan, rightly said that the suicide level has been falling, which is extremely good. During my term in office we introduced a preventive strategy, The Health of the Nation. As is the way in changes of government, the new Government introduced a dramatically new preventive strategy called Our Healthier Nation. The targets were almost identical, although no mention was made in the subsequent strategy of the previous one, which I thought was a little mean spirited. Suicide was one of the targets identified and how welcome it is that there has been a turn. But let no one be under any illusion: the most common cause of death for people between the ages of 15 and 34 is suicide, at twice the rate for men as for children.
The very eminent and distinguished Member of Parliament for Worthing West long ago used to be a transport Minister who worked hard to reduce driving accidents. But accidents on the roads are as nothing compared with the dangers of suicide. Therefore, as we discuss the Bill, let us remember that suicide is a critical cause of loss of life and contribution and that it causes great suffering to friends and family.
Last week I spoke for the Charlie Waller Memorial Trust. Charlie Waller, a successful account manager, was 28 when he took his life. His parents, in the way that some parents are extraordinary and remarkable, set up a foundation to ensure that more families did not have to live through the savage, traumatic loss of a successful young person. Through that foundation they have worked to raise the profile; to fund a chair at the University of Reading; for CBT outreach programmes in schools; for depression helplines for students; and so on. This Bill is only a very small part of what we must do more widely to promote an understanding of mental illness.
Of course, the mental health budget is always the easiest to raid because mental illness does not show so clearly on waiting lists; it is always the acute side that takes the glory and the priority. Our job, particularly in this House, is to speak for the inarticulate needy as opposed to the articulate greedy—whether they are the professions or the most forceful patient groups—who are always able to get to the front of the queue.
Probably unlike any other Member of another place, my endorsement when I first became a Member of Parliament was by the noble Baroness, Lady Howe, and by a professor of child psychiatry at the Maudsley, where I was working. I have a professional background in this area and Professor Lionel Hersov gave me a clean bill of health and thought it was an excellent idea that I should pursue a parliamentary path.
However, at the same time, I was also a magistrate and a juvenile court chairman. There is a similarity between what we have seen in childcare and what we see in mental health. There was a time when children were incarcerated in long-stay institutions because their families were thought not to be fit. In some parts of the world, you can still see, tragically, children in long-stay institutions. Then children were returned to their families but, time and again, there were appalling child abuse incidents. The story was always the same—Louis Blom-Cooper never stopped; he had a season ticket for writing reports—because in the community it is much harder to hold the pieces together. It is the same for mental health. It is also the same in alternatives to custody for people who are not in prison institutions. It is much more complex to organise the psychologist, the nurse, the doctor, the teacher, the social worker; it is much harder to have a co-ordinated approach.
The murder of Jonathan Zito by Christopher Clunis was a classic example of what we saw in the childcare system: the different elements in the community had simply not co-operated and collaborated. What is more, some of the patients about whom we are speaking are not particularly loveable, endearing or engaging of the professional services when they are feeling ill, or when they may not be feeling ill but are being troublesome to the community. When a patient going through a psychotic episode failed to turn up at a clinic, they did not say, “Oh dear, where is this needy patient?”. They said, “Thank goodness for that, we can concentrate on the worried well, on other patients, on other areas”. So the moment when that patient most needed a co-ordinated approach was the moment they slipped through the net, and somehow it was no one’s job to go and search them out. After the Christopher Clunis case I asked for a judicial inquiry. I am not one who thinks an inquiry is the answer to every problem, but I felt that we could begin to learn the lessons we had learnt on childcare.
Then there was Ben Silcock, the young man who walked into the lion’s den at London Zoo. The story was that he had been involved in a Mind day centre in the Roehampton area, but had proved too difficult. I think Mind is a brilliant organisation, and this is no criticism of it, its work or its campaigns. The fact was, however, that when he was suspended from the day centre no one thought it was their job to find out what had happened to him. I had a most moving meeting with his parents.
In 21 years as a Member of Parliament, I came across more examples than I care to mention of parents saying, “I know my son or daughter is failing to take their medication. I know they’re not complying with the treatment that is arranged for them. I am regarded as part of the problem”. They had read RD Laing, and they were the schizophrenogenic mother of all our pasts. They were perceived as the problem, not the answer. When all else failed, however, some other parents were supposed to cope. I became convinced that we needed to do more to identify those mental health patients who needed a more careful regime and someone to watch over them.
As a result of that, we moved towards supervised discharge and supervision registers. Again, overpressed, underpaid, overworked care staff tend to do the work that is statutory. With the best will in the world, those who are not on a list or a register, if there is no statutory force, so often fall through the net. I understand why supervised discharge has not delivered the results, or been as useful as might have been anticipated. It is the reason why today I have sympathy with the Government’s approach, in so far as I believe there is a role for supervised community treatment orders, but with many more safeguards than are currently in the Bill.
The noble Baroness referred to advocacy. That must be a requirement, and goodness knows why, when it was in the original draft Bill, we do not see it now. Many other groups have talked about the special needs of children. Again, they were to have a special mention, but they have been omitted; not only the needs of children and young people whose parents may be subject to orders, but children and young people who have their own difficulties. I fail to understand why. Still a fifth of those young people admitted to an institution under an order are in an adult ward. That cannot be right.
In my view, we need to take this Bill extremely seriously. I will give it the benefit of the doubt, despite this Government’s history of endless punitive measures—50 Home Office measures and the appalling Jack Straw severe personality disorder legacy as an early response to these difficulties. Provided that this is a small element of a comprehensive commitment for us all to do better for people with severe mental health problems, I shall, with modifications, support the Bill.
Lord Patel: My Lords, I am pleased that the Government have introduced the Bill to amend the Mental Health Act 1983 and the Mental Capacity Act 2005, although if the briefings that I have received are anything to go by, there is widespread concern about the Bill’s detail, indicating that it will have to be amended if it is to be supported.
The general feeling seems to be that the Government have ignored many of the recommendations of their own expert committee appointed in 1998 and of the 2004 joint parliamentary scrutiny committee. While I support many of the proposals, I too am concerned about some clauses. I start by making some general comments. While I am not a clinician who has worked in the mental health field, patients with mental disorders span all medical specialties. My comments and concerns are therefore directed primarily at how the Bill will affect the care of patients with mental disorders, particularly as the provision of services for such patients is not optimal, despite the increased funding that we heard about.
Reform of mental health legislation must be set in context. Improving patient care, including addressing safety issues, depends on a range of measures. First, it must not add to the stigma and discrimination suffered by people with a mental disorder. It must not reduce the likelihood of people feeling able to seek help early, to talk about their fears and difficulties without fearing scorn, humiliation or loss of status, freedom or job. Secondly, it cannot replace the need for adequate resources, including a well trained workforce and access to a range of treatments, including psychological therapies and new-generation medications. Thirdly, healthcare law should exist to enable patients to receive treatment within a clear legal framework, to improve personal health and well-being, to protect against abuse and, through these measures, to increase the health and safety of the nation.
The fundamental principles that support all good medical practice—respect for patient autonomy and supporting people in making their own healthcare decisions, even if ultimately they make what doctors consider unwise decisions; and doctors acting in patients’ best interests if they are unable to make decisions for themselves—are as important for mental health as for any other branch of medicine.
The medical profession, particularly the Royal College of Psychiatrists, is very concerned about the way that some politicians, members of the Government and parts of the media have linked the need for new mental health legislation with violence. Major problems with the mental health services include lack of trained staff, unpleasant in-patient environments, and lack of funding for research on both the causes of mental illness and potential treatments. While doctors agree that very few people with mental health problems pose a danger to others, the poverty of appropriate resources and training, along with poor communication between agencies, have been highlighted by homicide inquiries as issues which need attention.
Neither the most recent homicide report on the care and treatment of John Barrett, which highlighted significant failings in the system, nor the inquiry into the case of Michael Stone, which was highly influential in directing the Government’s development of this legislation, recommended any new legislation.
There is a widespread perception among the general public that violence, and homicide in particular, are rising problems caused by the introduction of care in the community and loopholes in the current Mental Health Act. That assumption makes good tabloid headlines but is incorrect. The latest Home Office figures show that in 2002–03 there were 873 homicides in England and Wales, of which less than 4 per cent, approximately 35, involved suspects with a mental illness. Furthermore, the number of homicides committed by people with a mental illness has stayed constant for many decades. The number has not risen since community care began in earnest in the early 1990s. That is not to minimise the consequences of violent behaviour committed by the mentally disordered or not, which could be profound. The mental health field is acutely aware of the impact on victims, which is perhaps exacerbated when there is a perception that the violence was both preventable and predictable.
In his oral evidence to the Joint Committee that scrutinised the 2004 draft Bill, Dr Tony Zigmond, the vice-president of the Royal College of Psychiatrists, said,
“the only way that I can generally decide that somebody is a danger to themselves is because they have come to see me, I have interviewed them and they have told me what is in their mind. If they do not do that, I will not know about it; and so any law that drives people away from the service, I have to say, increases risks for everybody and damages health … we need to get people to come and see us”.
The starting point in risk reduction is encouraging patients to seek help and talk about their thoughts and feelings. It is hard to believe that potential patients will not be deterred from the services if they know that mental health professionals will have a duty to enforce treatment on them, not only in hospital but in the community, even where they are perfectly able to make decisions for themselves and when the treatment may not even benefit their health.
The Government propose to improve public safety through increasing the scope of compulsory powers into the community and in detaining people even if they cannot get any therapeutic benefit from it. Health professionals believe that is the wrong approach, and it could damage the relationship between doctors and their patients and therefore may, paradoxically, increase risk.
Before I make specific comments about the clauses, let me state what are important principles that should form part of the Bill. A modern mental health Act should commence with a statement of principles to guide professionals in exercising their powers and the courts in interpreting the law. It is important that these principles appear on the face of the Act, as they are vital to the fair operation of the legislation, which has such powers over people’s lives. The Mental Capacity Act, as other noble Lords have mentioned, and the Children Act both contain that principle, as does the Mental Health (Care and Treatment) (Scotland) Act. Why should the Act for England and Wales not have that statement of principles?
I will now briefly comment on the Bill, which proposes changes in seven key areas. I support the principles in several of the areas, although the details will need to be debated further. Broadly, I support Clauses 21 to 24, which refer to the nearest relative; Clauses 8 to 20, which refer to widening the range of professionals able to exercise statutory functions; Clauses 30 to 31, relating to tribunals; and Clauses 38 to 39, relating to putting in place safeguards for treatment of patients and people who lack mental capacity. I know that those views are not shared by some noble Lords who have spoken.
I have greater concerns about some of the other clauses. To me, the major problem with some parts of the Bill is that it is over-inclusive, which may lead to a greater use of compulsory power. The Bill broadens the definition of “mental disorder”. It also removes exclusions, thereby widening the scope of people who may be detained. It abolishes the “treatability” test, thereby opening the possibility of detaining people for whom there is no therapeutic benefit, and it introduces community treatment orders with what seems like a low threshold. The cumulative effect of all those could be that people get trapped into a long-term system of compulsory care, which Professor Genevra Richardson likened to a lobster pot—easy to get into but difficult to get out of—the impact of which will disproportionately affect those from ethnic minorities.
Exclusions should form part of the Bill; they make clear what kind of behaviour, beliefs and lifestyle should not be brought within compulsory powers. Again, they form part of legislation in Scotland, New Zealand and some Australian states. The Bill removes the “treatability” test and replaces it with a test of appropriate treatment. Legislation that takes away a person’s liberty must at least confer on them a health benefit. The breadth of powers given to clinicians should be more precisely defined.
The Bill introduces a form of community treatment order. While a small number of patients respond well to CTOs, studies, including the Cochrane Library’s figures, do not show great benefits. Legislation needs to be cautious and CTOs need to be targeted on a very small group of so-called revolving-door patients.
Finally, I am disappointed not to see in the Bill safeguards for the care of children and young people with mental disorders, for such safeguards are badly needed if we are to improve the care of children with mental disorders. I would also like to see reference to appropriate care and treatment of mothers and babies in specialised units where mother and baby could be admitted. Such is the provision made in the Scottish mental health Act, particularly as regards mothers with post-natal depression with children of less than one year old.
I hope that we will have opportunities to debate some of those concerns during later stages of the Bill. For now, as I said in my opening remarks, I am pleased that the Government have brought forward the Bill, despite the difficulties.
Baroness Gibson of Market Rasen: My Lords, the Bill before us is a very far cry from the first proposals for a new Mental Health Bill—a Bill which was to be comprehensive and would have started almost from scratch on mental health legislation. In 2004, a draft Bill was produced and widely considered. It was large, complex and not widely popular. Now, as a result of much comment and debate, this Bill—shortened, and somewhat simpler—is to be considered. It does not remove all previous mental health legislation; rather it modernises and builds upon it. No Bill will ever satisfy everyone, and, as we have heard, there are varying views on whether this Bill suffices. One of the challenges before us is to ensure that, when it leaves this place, it does.
As the Secretary of State for Health, Patricia Hewitt, said during the Queen’s Speech debate in another place:
“For far too long, mental health services were neglected”.—[Official Report, Commons, 16/11/06; col. 149.]
This Government have invested in our mental health services and this Bill is a further stage of that process.
The Bill contains some important new proposals. I welcome the introduction of treatment supervised in the community for those who have already had treatment in a hospital. It will, one hopes, prevent patients relapsing and having to be readmitted to hospital. I welcome such provision because there is no doubt in my mind that such care in the community is needed. I am familiar with the case of a man, now in his forties, who has suffered with mental health problems since his teens. He has been hospitalised on numerous occasions and then released without sufficient support. Needless to say, after exhibiting behaviour that was dangerous to his family, to the general public and, most worryingly, to himself, he has had to return to a secure hospital. I am sure that other noble Lords know of similar cases.
As the Secretary of State for Health also said last week:
“Hon. Members are only too aware of the problem of those mental health patients who are treated in hospital and whose condition improves with care and medication, but who leave hospital and then fail to keep up their treatment. In a small minority of cases, involving some of the most seriously ill people, that can lead to terrible and tragic results”.—[Official Report, Commons, 16/11/06; col. 150.]
If the man who I know could be professionally supervised in the community, it would be good not only for him and his family but for society as a whole.
The Bill has other positive aims: to expand the skill base of mental health professionals and, as a vital part of that, to ensure that they have the right experience and training; to improve safeguards for patients who are unable to decide for themselves about their care; and to provide speedier and more frequent mental health review tribunals. The latter would be of great assistance not only for those with mental health problems but also for those directly involved with them.
Something I support, but which I recognise raises concerns in many quarters, relates to the current “treatability test”. The Bill introduces appropriate treatment to replace the treatability test. This clause will apply to all the longer-term powers of detention. However, patients will not be detained compulsorily, nor will their detention continue unless they are able to receive the appropriate medical treatment that they specifically require. Any such restrictions will apply only when it is considered by those with responsibility for the diagnosis that patients may be a risk to others.
I accept that such considerations are a fine balancing act, but there will always be some people who are not in a fit mental state to give their consent to treatment and they must be protected from harming themselves as well as others. It is also vital that appropriate treatment is available for all patients regardless of their label or diagnosis. I believe that that is more likely to be achieved under the new proposals rather than the existing ones. I know that other noble Lords think differently.
I also welcome a debate on whether a relative is always the best person to have responsibility for those with mental health problems. I am sure that in the vast majority of cases a close and loving relative will have the best interests of their loved ones at heart but, by the nature of human relationships, there must be instances where others who are not relatives would be better able to reflect what the individual concerned would wish for himself or herself.
Like other noble Lords, I have received a number of briefs from different organisations. A small number of them have been disappointingly negative. I do not think that it is of any help to send me or other noble Lords a brief that totally condemns the Bill. Constructive criticism is important and welcome, but negativity alone is of little use to the debate. A number of the briefs pointed to the Scottish legislation, which has already been mentioned in the Chamber, which is preferable to what the Bill contains. In particular, the Scottish community treatment orders are recommended, as they are confined to conditions regarding treatment and residence rather than the wider proposals contained in the Bill.
That view is supported by the Law Society among others. Its chief executive, Fiona Woolf, believes that,
“the Government has tinkered with our mental health provisions, rather than introducing radical reforms”,
and have thus missed a golden opportunity for advancement in this area. Perhaps the Minister could comment on this preference for the Scottish legislation in his summing up.
A particular brief that raised matters of some concern for me was that from Barnardo’s, which concentrated on the mental health issues of children and young people. The noble Baroness, Lady Bottomley of Nettlestone, has already mentioned that. The Barnardo’s brief covered two angles: those younger people who have mental health problems and those who look after adults with mental health difficulties. Both those groups of young people are among the most vulnerable. Genuine worries are raised about the current treatment available for children and young people who develop mental health problems and whether the Bill’s proposals will tackle what Barnardo’s believes to be a “national shortage of treatments”, especially among 16 to 18 year-olds.
Barnardo’s hopes that the Bill will be amended to add emphasis relating to age assessment, treatment and aftercare for the younger folk who have specific problems. They believe that that should include care and treatment by professionals trained in child development and child psychiatry as well as aftercare support, which is so essential to bring back stability to their lives.
The second element—parental or other adult care—raises stark issues indeed. Barnardo’s estimates that up to a quarter of adults with mental health difficulties are being cared for by young people. Such circumstances can place unbearable strain on those carers, who become old before their time from their burdens. Such youngsters must surely be able to access the widest possible range of support, and I hope that my noble friend will agree with that view.
Finally, it seems to me that, for this Bill to succeed, above all, emphasis must be placed on providing enough properly trained staff and enough resources generally. Without those two basic requirements, the Bill will not do what it sets out to do. Can the Minister reassure the House that the relevant staff will receive the training necessary for their varied roles and that sufficient resources will be available to put the Bill’s proposals into effect?
Baroness Knight of Collingtree: My Lords, there is no doubt that there is much concern in the minds of a large number of professional medical groups, who have written to us about the Bill. Concern has also been expressed in the House this evening. Some people are anxious about what is in the Bill; some are anxious about what is not in it. But, as it is put forward as an amending Bill to the Mental Capacity Act 2005, my concern is whether it will be effective in strengthening something that the earlier Bill was alleged to ensure when it was introduced but, in the event, has not.
Just before the 2005 Act was introduced, I initiated the Patients’ Protection Bill, which sought to end the practice of denying food and fluids to elderly persons in NHS hospitals because, or often because, the beds that they occupied were wanted. There was an amount of evidence of that happening. It even happened to a friend and ex-colleague in the House of Commons whose wife was in hospital. He visited her as much as he could and then, after about three days, he realised that no one was feeding her or bringing her water or anything else to drink. When he asked about it, he was told, “Oh, we aren’t feeding her and we certainly aren’t giving her any liquids of any kind”. He had not asked for that and neither had she. No one in the family had asked for that to happen to her, yet, without any consultation at all, the poor woman was dying in front of his eyes. He made an awful fuss—none of us will be surprised about that—and the provision of food and liquid was reinstated, and quite right too.
It was that and other cases that impelled me to bring in my Bill. I had support from all parts of this House when I did so, but the Government blocked the Bill. However, the noble Lord, Lord Filkin, who at the time had responsibility for constitutional affairs and to whose courtesy, kindness and caring I warmly pay tribute, sought me out to assure me that the then Mental Capacity Bill would do what my Bill would have done to end this abhorrent practice.
I have stood aside to give every opportunity for the Act to do what the noble Lord, Lord Filkin, promised it would, but I am becoming extremely concerned at the growing amount of evidence that it has not done so. Only a couple of weeks ago, the BBC screened a truly chilling programme, put together by a very experienced researcher and broadcaster, Sally Chidzoy. It highlighted the statement of one hospital doctor, speaking in court and under oath, in which he said that two or three patients per week were dying because they were not given food or fluids. “I see it happening all the time”, he said, and that was just in one hospital.
Those words refer to a case that took place before the Mental Capacity Act had had a chance to work. The inquest took place earlier this year and those words clearly refer to what takes place now. The screening of that programme has apparently led to a very large number of calls. I am told by the BBC that it has had no fewer than 136 calls providing further information about the same sort of thing happening all over the place. I am very concerned about this. The calls have come from nurses and relatives of patients detailing cases where elderly patients have been deprived of food and fluid and have died as a result. Again and again, letters, e-mails or phone calls cite examples. It seems that it is very common for cups of tea or glasses of water deliberately to be placed where a patient cannot possibly reach them.
In the programme, a nurse who was speaking of the present—not before the Act came into force—said, “As soon as elderly people come in, they are doomed. If they are over 60 or 65 they are condemned”. Those are not my words but they come from a nurse in a hospital who has seen it happening. A daughter said that her mother begged for a drink but the dreaded “Nil by mouth” sign was on her bed. The daughter complained and after some days drink was reinstated, but it was cancelled again and, in the view of her daughter and those who visited her, the woman went backwards. In another case, although doctors said that the patient was allowed free fluids and that she was tolerating fluids, nurses did not give her any. Another lady said, “There is not a lack of time to feed patients; it is the lack of care that worries me”.
I fully accept that in some cases—such as patients who have suffered strokes—the patient’s condition directs that they must not be fed normally, but too often other methods of giving sustenance, such as tubes and pegs—I know that one is much easier to administer and to tolerate than the other—are not applied and the patient is starved to death. That is a terribly painful and dreadful thing and it is going on at the moment under our very noses.
I am aware that the GMC is on record as saying that causing patients to die by withholding food and fluids is unacceptable and illegal. It may be unacceptable, but it is certainly happening and I am afraid it is not illegal for one very good reason. A few years ago the medical profession, backed, I believe, by the courts, reclassified feeding sick people as medical treatment. That was a licence to kill and, I fear, it is regularly used as such. Yet it is patently ridiculous to say that giving people a meal is giving them medical treatment. Do we sit at the long table in our dining room to receive medical treatment? Are school dinners medical treatment? Does a husband take his wife out on their wedding anniversary to a nice restaurant for medical treatment? Of course not.
There is another odd thing. How is it that, when doctors use their rights to withhold food and liquid, no relative needs to be informed or consulted and yet when medical treatment which involves apparatus and machines, such as those that artificially keep people alive, is administered there is recognised consultation before it is embarked on? Relatives can, and do, go to court and sometimes the court upholds their right to keep the machine going, yet, apparently daily, patients are suddenly cut off from sustenance without a word to relatives and life is ended with no consultation at all. If no friends or relatives visit you, I tremble for your chances.
I give notice that I shall seek to move an amendment at the appropriate time to give elderly patients better assurances of their safety and rights while in the care of the NHS. I am certainly not saying that that will be easy for hospitals to implement. Nurses are certainly extremely busy, doctors always have too much to do and money is tight. But in a country which claims to have principles and whose people certainly have rights, we can tolerate no longer the regular, deliberate killing of sick people because it causes too much trouble to keep them comfortable and to look after them properly. I am certainly not saying that there are not thousands and thousands of examples of wonderful loving care given daily in our hospitals, but these reported instances besmirch the reputation of everyone connected with British hospital care.
I should also point out that the 136 people who contacted the BBC after the programme were from only one small area of the country—the programme was called “Look East”—so I do not know what would happen if the programme were broadcast more widely. I cannot think that that practice happens in only one place so that means that there is a general situation which cannot be permitted to go unchecked.
It alarms me that some who have serious complaints about what has happened to their loved ones are frightened to speak out because they fear that they may be discriminated against if they themselves need care. It certainly angers me that a hospital—the Norfolk and Norwich University Hospital—should have tried to influence a coroner to discount evidence given by two consultants Dr Michael Jarmulowicz and Dr Philip Howard, because they are Roman Catholics. I have the submission made by the hospital which is an attempt to influence the coroner. It is entitled:
“Submissions … on behalf Norfolk and Norwich University Hospital NHS Trust”.
Speaking of the first doctor it says that,
“his impartiality and his position as an expert witness is in doubt owing to his close association with The Guild of Catholic Doctors”.
Referring to Dr Howard it says:
“The impartiality and position of Dr Howard as an independent expert witness is disputed. In common with Dr Jarmulowicz, Dr Howard is also a member of The Guild of Catholic Doctors”.
Does that mean that he is not competent to give his expert medical evidence? This has actually happened and fairly recently too. I ask the Minister directly: is it legal to claim that evidence in court should be ignored on those grounds? Are expert opinions to be waved away because those giving them are Catholic or Muslim or Jewish or Methodist? God help us.
Lord Bragg: My Lords, I declare an interest as president of Mind which has been working for better mental healthcare over the past 60 years. Much has been achieved in mental health awareness and in mental healthcare over the past few years. The stigma is finally showing signs that it will slink away. The taboo is starting to lose its dread. The understanding that mental illness can be just as harmful as physical illness, that it needs just as much attention and that, like physical illness, it can be overcome has deepened, especially over the past four or five years. Even newspaper language, which in certain quarters used to be almost an incitement to lynch or to ostracise, shows signs of achieving some reason and sanity.
Despite this Government’s laudable track record in areas of illness and disability, those to whom I have spoken in Mind and the Mental Health Alliance—a unique coalition of 78 organisations committed to better mental health legislation—are convinced that to let this Bill pass without serious amendments would be to fail an already disadvantaged section of our society and to miss a great opportunity. I share those views. I agree with my noble friend Lord Warner that the time is right for a major rethink and revaluation of mental health. Sadly, this Bill does not do that.
At times, the Bill seems to be rooted in the stereotype that those suffering from severe mental health problems are likely to be threatening and dangerous. More than one in five of us will, at times, suffer from often grave mental health problems—one in five. Look around at those we know and know of. This alone makes a mockery of the murderous stereotype.
There is a growing culture of alarm in this country. The fact that it comes at a time when crime is falling does not make that perception less influential, but this does not mean that we can therefore tolerate witch hunts. Yet the few high profile cases of people experiencing severe mental ill health who kill receive lurid and disproportionate media coverage. They leave the impression that tragic deaths have occurred because of a failure of the law to protect us. Yet the clear message from official inquiries into these incidents is that the key to avoiding them is not to reform mental health law but investment in mental health services.
There is, for instance, no evidence that extensions in powers to allow compulsory treatment in the community will improve outcomes for people experiencing mental distress or increase public safety. As that is the case, are we not in some way talking about an unfortunate short-term reaction—even a snatch and grab at a problem—and not a detailed address to the realities involved?
There is a definition of mental illness in the Bill. It is a useful starting point, but only if accompanied by exclusions to that definition. It would be absurd, for instance, to claim that there is merely one definition of physical illness. Yet, as those of us in Mind and other like organisations continue to say, the afflictions of mental illness are just as varied as physical illnesses, from the temporarily disabling to the crippling, in both cases.
For compulsory treatment, the Bill removes a current stipulation that treatment should have a therapeutic benefit and requires only that treatment is available as “appropriate”. This is surely too vague a basis for coercive powers and is not based on therapeutic value. In effect, it would allow the incarceration of mentally ill people who have committed no crime. It would also, many psychiatrists say, turn them into jailers. Furthermore, it would allow curfews to be imposed on patients in the community, which the Royal College of Psychiatrists fears would dissuade people coming forward to seek help.
Research suggests that compulsory community treatment is not effective. It even deflects attention from the real issue of providing high quality aftercare and support. If the Government are looking at what can be achieved in the community then, as well as aftercare and support, they should be looking at tackling those factors that contribute to the social exclusion and isolation of people who have experienced mental distress. It is those factors, as well as lack of care and support—as much as any failure to comply with treatment—that contribute to people relapsing after they have been discharged. To do all this is extremely ambitious, but the ambition to serve the needs of the most fragile is a noble one. I believe that the people of this country will support it.
There are points not in the Bill which should be there. Patients should have the right to a full assessment of their health and social needs before a crisis point, and a right to advocacy services to help negotiate their way through a complex system. Mind’s chief executive, Paul Farmer, said when this Bill was published:
“It’s quality health services that will protect people, not this legislation, opposed by mental health experts across the board. We hope that the widespread concern in Parliament will lead to the essential changes that must be made to give any chance of providing an effective mental healthcare system. It is vital that health legislation is focused on benefiting and treating health problems. Treatment that cannot improve or treat a person’s health should not be forcibly given to them”.
The Bill must also address the distressing over-representation of blac