Committee stage in the Lords
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Lord Patel of BradfordNon-affiliated- Quote
- moved Amendment No. 43:
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Lord Hunt of Kings HeathLabour- Quote
- That was a very useful contribution; I am grateful to the noble Lord for making it. I would like to take this opportunity to pay tribute to the work of the Mental Health Act Commission in keeping under review the operation of the 1983 Mental Health Act. I would commend to the Committee the commission’s reports and general work. I understand that the noble Lord has put this forward as a debating point. We could not accept the amendments as such. The essential point is that it is our intention, as announced by the Chancellor in his Budget Statement of 2005, to create a new regulator in 2008. This will build on the work and successes of the Mental Health Act Commission, the Healthcare Commission and the Commission for Social Care Inspection, working across the health and adult social care sector in England. I see the noble Earl, Lord Howe, thinking back to some debates we had on that matter quite a few years ago. No doubt he will remind me in due course of what I said then. Regarding the proposals for amending the Mental Capacity Act, the Government are in full agreement with the noble Lord that an essential part of introducing those safeguards is monitoring how they are applied in practice. That is why we have taken a power in Schedule 6 to make an insertion into the Mental Capacity Act to give one or more bodies a duty to monitor and report on the operation of the Bournewood safeguards. Essentially, the monitoring bodies would have powers to monitor and report on the operational safeguards; visit hospitals and care homes; visit and interview people in hospitals and care homes; and require the production of an inspection report. The monitoring would require the body to look at protocols and procedures in place for complying with duties placed on managing authorities and supervisory bodies; whether the guidance in the code of practice is being complied with—I thought noble Lords would be pleased to hear that; whether conditions attached to authorisation and requirements to request review of circumstantial change are complied with; and whether appropriate steps are being taken in cases where authorisation has been refused. It is intended that this monitoring body be an integral part of the overall regulation inspection regime for health and adult social care. We intend that the new body should monitor the use of deprivation of liberty provisions in the Mental Capacity Act in England. The deprivation of liberty provisions and the establishment of the new regulator are planned to take effect in 2008. In any interim period between the two coming into effect, the monitoring role will be undertaken by the existing bodies alongside their current roles. We are in very constructive discussions with the three commissions about how that might work in practice. We are proposing to use the regulation-making power in paragraph 155 of Schedule 6 to require supervisory bodies and managing authorities to make information available to the regulatory bodies. I hope that that meets some of the issues raised by the amendments. Amendment No. 43 would open the possibility of requiring the Mental Health Act Commission to visit all care homes to monitor the Bournewood safeguards. That is not something that we would agree to. Our interim arrangements will enable the Commission for Social Care Inspection, which already visits care homes, to undertake the monitoring of the use of the Bournewood proposals in that setting. I turn to the wish of the noble Lord, Lord Patel, to give the MHAC powers to monitor patients whom it considers may be detained but who are neither subject to detention under the Mental Health Act nor subject to a deprivation of liberty under our proposals for the Mental Capacity Act. I say at once that I clearly understand the concerns raised by the noble Lord, but I think that an issue arises in law in saying that such patients, who in effect are illegally detained, should have their cases kept under review. I am clear—this was reinforced by the debate—that it will be for the regulator and, where appropriate, the courts to address these situations. With a single regulator, we want to ensure that quick action can be taken whenever such a case comes to the attention of staff who are responsible for visiting patients detained under the Mental Health Act or deprived of liberty under the Mental Capacity Act. I will take the noble Lord’s comments into account when taking forward the proposals for a single regulator. Clearly, we will want to ensure that there is even better co-ordination between that part of the new body charged with regulating hospitals and the part that will inherit the responsibility for visiting patients who are subject to compulsion or deprived of their liberty. We will consider further the right range of powers for the new regulator, including how the regulator’s enforcement powers should apply. I hope that I have responded positively to some very real issues raised by the noble Lord.
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- Lord Patel of BradfordNon-affiliated
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- I thank the Minister for his response and for his kind remarks about the Mental Health Act Commission. I genuinely believe that the amendments, or similar wording, would be a step in the right direction to stop the ongoing abuse and neglect of a number of vulnerable people in the mental health system who are falling in the gap. I take on board his point about the new health and social care Bill establishing the new regulator, but perhaps I may ask him to reconsider having to wait another year before that Bill comes into place, with another year of abuse for these patients. A year is a long time and, having come to this House, I have learnt that things can change in a year: some Bills are introduced and some are not. Also, in the interim period he may wish to talk to the Secretary of State about the discretionary powers that exist and about whether there may be an opportunity for us to look beyond that and have a further debate on this matter. I believe that we need a further debate but, for now, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendment No. 44 not moved.]
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- Lord Patel of BradfordNon-affiliated
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- moved Amendment No. 45:
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- 21:00
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- Lord Hunt of Kings HeathLabour
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- The noble Lord, Lord Patel, makes a powerful case. I am afraid that my answer is essentially the one that I gave to the last amendment. He has clearly raised important issues of concern. We are consulting on the right regulatory body to bring forward the three commissions that I have already put together. Clearly, issues of powers and duties of monitoring in relation to the operation of the Mental Health Act need to be considered in taking that body forward. We will announce how and when we will make that further consideration in due course, and I will ensure that the noble Lord’s comments are taken into account. I take to heart his points about the need for information on various ethnic groups, the impact that such monitoring has on services more generally and the way in which those services are organised. Amendment No. 45 would require notification of all admissions of voluntary patients. We see a problem with that in terms of the numbers—tens of thousands of patients with mental disorder were admitted voluntarily. We are yet to be persuaded that this would improve monitoring under the Mental Health Act, but I assure the noble Lord that we definitely see a need for improvements to the functions involved in monitoring mental health legislation, which we intend to realise through a new regulator working across the whole health and adult social care sector.
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- Lord Patel of BradfordNon-affiliated
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- I thank the Minister for his remarks. It is important that the census of all in-patients in the mental health system should achieve what we want it to. It monitors them now quite easily without service providers having any extra burden. We managed to get a one-day snapshot study, but we need the situation to be monitored on a continual basis for several reasons. Not only would that monitor trends and provide important information and understanding on where patients who should be detained are not detained and where patients who should not be detained are detained, but surely any practitioner who wants to put together a package of care needs such basic information. If they were treating me, they would need to know that I am Hindu, that I am a Yorkshireman, how old I am, where I come from, and what makes me tick. This is very basic information, which it should not be a burden to collect and record. I think that undertaking the census has improved practice across the board. I urge the Minister to reconsider and have further debate on this area but, in the mean time, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendment No. 46 not moved.] Schedule 3 agreed to. Schedule 4 agreed to. Clauses 26 to 30 agreed to. Clause 31 [Organisation]:
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Earl HoweConservative- Quote
- moved Amendment No. 47:
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The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland)Labour- Quote
- I am addressing these amendments because I have responsibility for the tribunal service within the Department for Constitutional Affairs and because the mental health review tribunal falls within my remit. In this context, I am also responding on behalf of the Home Office, for this falls fairly and squarely within its remit. I am grateful to the noble Earl for so succinctly putting the issues relating to Amendments Nos. 47 and 48 before us. As the noble Earl said, the nearest relative provisions of the 1983 Act do not currently apply to decisions made in respect of restricted patients, so a question would automatically be prompted by the proposals in Amendment No. 47 about whether we ought to be looking to extend those principles to apply to the restriction order in all circumstances. It is a fact that the regime for the management of restricted patients is intentionally different from that for unrestricted patients. The noble Earl alluded to that in any event. Restricted patients are people convicted of serious offences whom the courts have found to pose a risk of serious harm to others, or if they are serving prisoners transferred to prison for specialist services. They are people who, instead of being required to serve a prison sentence, have been ordered to be detained in hospital subject to special restrictions for the protection of others. As the noble Earl also indicated, the decision on the discharge of restricted patients is made either by the Home Secretary or by the tribunal. He will know that the 1983 Act allows the tribunal to make that decision on the basis of a European Court of Human Rights decision, and that is accepted and part of our legislation. It is not to me apparent that we would derive much benefit for the restricted patient in being able to divert to the nearest relative the rights of reply to the tribunal. I hear what the noble Earl said and, as ever, I will think about it. However, in the case of a transferred prisoner, the effect of a tribunal’s finding that he is not properly detained in hospital is return to prison. The nearest relative provisions are not relevant to the management of a restricted patient. These are patients required by law to be managed on the basis of the need to protect others from serious harm. I fear that we would not be able to achieve what the noble Earl wishes to achieve in Amendment No. 47. However, I will, as I have indicated, think about the issue in our deliberations between now and Report. On Amendment No. 48, I acknowledge the work of Professor Richardson, but of course there is the recommendation of the pre-legislative scrutiny committee to allow the tribunal to be given the power over the transfer and leave of absence of restricted patients, which fundamentally alters the arrangements for risk management of restricted patients, taking away from the Home Secretary his sole responsibility for decision-making on the risk management of detained and restricted patients. As I understand it, the Home Office takes 2,500 decisions annually on the leave and transfer of restricted patients. I hear the noble Lord’s concern about the Home Office’s role, but in the majority of cases applications are dealt with and responses delivered within the target dates, which are three weeks for leave of applications and two months for transfers. I am not entirely convinced that the tribunal, with due respect to its work, could improve on that performance without a vast increase in resources. It currently considers about 15,000 applications for discharge on a once-a-year basis. The management of restricted patients is complex. It is not an accident. It is the result of a balance between the rights of the public to be protected from serious harm and the rights of the patients. As I have indicated, the courts can divert restricted patients or offenders convicted in the courts from prison sentences to be treated in hospital. Diversion under a restricted hospital order means that there is no tariff to serve; there is no element of punishment in that sentence. The function of the Home Secretary and the tribunal is, if I may describe it as such, a constructive tension. The Home Secretary’s responsibility is to protect the public, balanced by the tribunal’s power to discharge the patient from detention if it is not satisfied that that is justified by the patient’s disorder and the risks that arise from it. Checking the figures today with officials, I understand that 75 per cent of restricted patients are discharged. The effect that we are conscious of is that, if the tribunal were given the additional responsibility to regulate the pace of the patient’s rehabilitation by being able to order, transfer and lead for the patient, we would be in danger of undermining the Home Secretary’s power to protect the public—the constructive tension to which I referred. We think that, because the Home Office is dealing with matters effectively, the current system works well, and that the tribunal’s ability at the end to be able to discharge the patient under the 1983 Act is the right way to go forward. I will of course consider the matter further with colleagues in the Home Office, but at this stage I believe that the balance is right. I hope that the noble Earl will withdraw his amendment.
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- Earl HoweConservative
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- I am grateful to the Minister. I take serious note of the points that she made, which in all conscience I must reflect on. I thank her for a full reply and beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendment No. 48 not moved.]
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- Earl HoweConservative
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- moved Amendment No. 49:
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- Lord Patel of BradfordNon-affiliated
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- I support the amendments. In respect of Amendment No. 49, we have heard it stated many times in our debates on the Bill that the chance to review mental health legislation comes about every 25 years. We have also heard, especially from Ministers in relation to setting principles in statute, that over the course of these quarter centuries, societal values may change and statutory requirements become dated. In the case of the statutory requirements relating to the constitution of the mental health review tribunal, we have a case in point. The current statute requires multi-disciplinary input to the lay membership of tribunals, with particular emphasis on such persons “with experience in administration” or “knowledge of social services”. I have no wish to suggest that persons falling within these categories are not important or needed—indeed, I fall into at least one of them myself—but were we to draft this today, it would be inconceivable that we would not specifically include, and give priority to, service users and carers, who are “experts by experience”. Furthermore, given the over-representation of black and minority ethnic patients under compulsion and the widespread suspicion of services in the black community, this is a good opportunity to underline the importance of taking into account diversity issues in the appointment of tribunal members. I hope that we will grasp this opportunity to update the statutory language around this part of the Act. In respect of Amendment No. 50, I can say with some certainty that noble Lords need no reminding of the quite shocking examples and statistics that have been provided throughout our debates about the widespread placement of children and adolescents on adult wards, with inappropriate provision made for their safe and effective care and treatment. The Government recognise the problem that children and adolescents may be detained in adult facilities for want of an appropriate CAMHS bed, but it is a problem that has not yet found resolution. The amendment addresses one side effect, if you will, of the often inappropriate placement of child and adolescent patients. Mental health professionals working on adult wards where children are inappropriately placed may find themselves disempowered by their own lack of skills and knowledge in child and adolescent mental health care. This can place children in an additionally vulnerable position when it comes to the deliberations of the mental health review tribunal, because the tribunal may not, in its dealings with staff at the detaining authority, meet with the relevant expertise that should be available to it at its hearings. I therefore support the amendment, which aims to ensure that the determination by a tribunal of whether compulsion under the 1983 Act is appropriate for children and adolescents involves professionals with appropriate expertise in these areas.
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- Baroness Ashton of UphollandLabour
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- I am very grateful to noble Lords who have spoken in this debate. As I indicated earlier, I am especially interested because the work of the tribunal service now rests with me within the Department for Constitutional Affairs. One of the things that I have been doing is reviewing the role of non-legal members of tribunals, and I have had the good fortune to meet more than 100 members who we classify as non-legal members—I am looking for a better term than that. Included in that description are medical professionals of one kind or another and those who sit on the Mental Health Review Tribunal. I have the appropriate reactions of a Minister to statute—that it is very difficult to change it—so I do not want to accept this amendment, but I share the concerns of noble Lords. I looked at the minority ethnic breakdown in the statistics about those involved in mental health review tribunals, and the membership is 76 per cent white, 9 per cent Asian, 2 per cent black, 13 per cent not stated and 0.004 per cent Chinese. We need to think very carefully about the flexibility and membership of the tribunal service. One of my ambitions is to reflect the breakdown and mix of our society better in the tribunal service in terms of ethnicity and, going back to Amendment No. 49, the mix of those who use and understand the service. There is nothing between the Department of Health and my department on this issue—my noble friend Lord Hunt of Kings Heath is nodding. We want to achieve that mix. I do not want to put that in statute, but we will do the best we can. Having chaired a health authority, I have a lot of experience of the issues and needs of child and adolescent mental health services and of trying to develop a good service right across the country to support children with these problems. Noble Lords will no doubt have talked far longer than I can about their questions and concerns. It is difficult to commit in statute that one could immediately get to the point of being able to put somebody with that expertise on the panel in the tribunal service on all occasions. I cannot do that. What I am prepared to commit to is that no child should appear before a tribunal unless he has been seen or supported in some way by someone with the expertise to reflect the fact that he is a young person, an adolescent, under 18 or so on. That might be done in the process of getting to the tribunal by having the opportunity to meet somebody from the service, it might be done by somebody on the panel or there might be other opportunities. My ambition is to get to the point where it is set in stone that that facility is available. I do not have enough people to be able to offer that now, but I will offer to make sure that from now on children who have not had the opportunity of that expertise do not appear before the tribunal. Noble Lords will appreciate that that is a huge commitment. I ask the noble Earl to withdraw the amendment because I cannot put that commitment in statute. I also ask him to recognise that I share the ambitions in both the amendments in this group. I see that the noble Lord, Lord Newton of Braintree, who is president of the Council on Tribunals, is in the Chamber. He is the key person working with me on this, and we are committed to achieving it. I am sure that we can because behind the amendments are serious and important issues that we need to address.
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- Earl HoweConservative
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- That statement of intent from the Minister is very welcome. I am sure that the Committee is glad that she is marching with us on this one. It would be doubly good if, at some point, we could hear from her about how she and her officials plan to deliver that.
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- Baroness Ashton of UphollandLabour
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- I am sorry to interrupt the noble Earl, but he is right to suggest that. We plan to produce a strategic document about the role and future of the tribunal service very shortly, and that will provide opportunities for noble Lords to come back to me on the commitments that I have made.
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- Earl HoweConservative
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- I am most grateful and beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendment No. 50 not moved.] Clause 31 agreed to.
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- Earl HoweConservative
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- moved Amendment No. 51:
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- Baroness Ashton of UphollandLabour
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- I am grateful to the noble Earl for raising this issue. Noble Lords will know from their deliberations on the Bill that all civil patients have the safeguard of a nearest relative. The nearest relative has the right to discharge a patient at any time and, where that discharge is barred, the nearest relative can apply to the tribunal to challenge that detention. The right of a patient to apply to the tribunal and the additional rights of the nearest relative to apply must be explained to the patient by the hospital managers. That is a statutory requirement under Section 132. However, if the patient does not use the right to apply to the tribunal, Section 68 provides the backstop for patients, ensuring that all unrestricted patients, not only those who lack capacity, have the safeguard of an independent review of their case. We think the time periods within Section 68 are appropriate. They ensure that a civil patient who has not applied for a tribunal or otherwise been referred will be referred by the hospital managers after an initial six months of detention. We have expanded the group of patients to whom this applies to ensure that it includes patients who remain on a Section 2 by virtue of a County Court procedure to displace their nearest relative under Section 29. The period spent under Section 2 will, with the new provisions, be taken into account when calculating the six-month period to referral. This is an important move; the 28 days is part of the six months. In addition, all unrestricted patients will be referred to the tribunal every three years, as the noble Earl has indicated, if they are adults, and every year if they are under 16. The Bill introduces the option to reduce these periods—which, in a sense, is what the noble Earl is after—so that the backstop safeguard of a tribunal for all patients who do not apply will occur sooner. The Secretary of State and the Welsh Ministers will use this power when they are certain that the resources in the NHS, local authorities and the mental health review tribunal can be made available without affecting the provision of mental health services to patients with mental disorders. The commitment we make is that we will achieve that through a combination of the Department of Health and the Department for Constitutional Affairs. It is our intention to reduce the time although I am not able at this point to give noble Lords a timescale for it. The problem with the amendment is that we would almost certainly end up with a more or less immediate increase in tribunal referrals, which may or may not be wanted by the patients concerned, and require hospital managers to arrange for every detained patient who does not apply for a tribunal to be assessed to determine whether they have the capacity to make such an application. In other words, rather than relying on managers to keep an eye out for patients whose lack of capacity may require steps to be taken, it forces managers to assess capacity indiscriminately; and because capacity is, of course, specific to particular decisions, it is not the same as assessing the capacity to consent to treatment, for example. So it should not be assumed that this assessment will be carried out anyway as a routine part of patient care. The noble Earl makes a good point about the length of time. We think the best way to address that is, within the provisions of the Bill, to consider reducing that time when we are able to do so—we commit to do that—and in that way achieve what the noble Earl wishes. However, it is important to ensure that we have safeguards for mental health patients, including those who lack capacity. We think the provisions in the Bill provide the most effective way of recognising our desire to reduce the timescale. I hope the noble Earl will feel able to withdraw his amendment.
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- Earl HoweConservative
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- Once again, that is a helpful reply. I do not doubt that the Minister is totally sincere in what she says, and that the Government intend to reduce that period when they can. I would welcome that. I bear in mind, however, that since 1983 we have had a provision in the Act to enable the Secretary of State to reduce the three-month period, and nothing has happened under successive Governments, so, with the best will in the world, intentions can fall by the wayside. Nevertheless, I shall reflect carefully on what the Minister has said, and beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendment No. 51A not moved.] Clause 32 agreed to. Schedule 5 agreed to. Clauses 33 and 34 agreed to.
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- Earl HoweConservative
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- moved Amendment No. 52:
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Baroness Royall of BlaisdonLabour- Quote
- I am aware that the introduction of the new AMHP role and the loss of the requirement for the individual to be employed by the local authority have led to concerns that pressure could be applied to AMHPs acting on behalf of a local authority, but employed by the same trust as doctors carrying out mental health assessments or hospital managers dealing with bed shortages. I understand the rationale outlined by the noble Earl, Lord Howe. The amendment would make it an offence for any person to offer an inducement or make a threat with a view to improperly influencing a decision made under the Act. That could include patients and their relatives acting inadvisably but in reaction to difficult circumstances. I am sure that noble Lords would agree that in most cases it would be inappropriate to criminalise that behaviour. Instead it should be dealt with sensitively on an informal basis by the professionals involved.
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- Earl HoweConservative
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- That was a helpful reply, on which I shall reflect carefully. However, this is an area where theory sometimes tends to become detached from practice. The problem is that the professional status within an organisation of relatively junior employees—social workers, nurses and occupational therapists, for example—who are likely to act as AMHPs will be vastly less than that of the consultant psychiatrists, some of whom will carry senior management responsibilities. Many seconded ASWs already report that they have come under great pressure to act, or not to act, in a particular way. I suggest that members of health professions are likely to be more vulnerable to such pressure. Such things can be hidden; they do not necessarily come out; and it is very difficult to guard against them, whatever codes of practice are in place. Nevertheless, I take on board all the points made by the Minister and I beg leave to withdraw the amendment for the time being. Amendment, by leave, withdrawn. Clauses 35 and 36 agreed to.
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- Earl HoweConservative
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- moved Amendment No. 53:
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- Lord Patel of BradfordNon-affiliated
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- I have put my name to this amendment because the suggested change in the law would be an empowering measure for patients. It would provide a counterweight to the broad powers over patients that are given to detaining authorities. It is not uncommon for a patient or relative to express a wish for a transfer between hospitals, whether this is to be nearer home or because of a preference for one hospital's regime over another. We should be mindful that it is current government policy that prospective patients across the rest of the NHS should be encouraged to express choices in hospital care and that they should be acted on. If we cannot extend this agenda around choice to psychiatric patients, even in this limited way, we risk further excluding them and increasing the stigma of psychiatric treatment. The title of the proposed new clause is perhaps a misnomer as the “right” to which it refers is not the right for a patient to move hospital, but a right to have any request for such a move treated with appropriate seriousness by the detaining authority. There is therefore no reason for the Minister to reject the amendment on the grounds that it provides some form of positive right to treatment that can be exercised only at the expense of equitable provision within the NHS. That is not an issue here. The Minister will forgive me for anticipating what may be in his brief for this part of the debate, but I do not believe that the amendment raises problems in relation to what might be termed “vexatious petitioners”; in other words, patients or relatives who make repeated and ceaseless requests for the same thing. I recall that the Minister was concerned about this issue in relation to Amendment No. 19. He was anxious over the staff time that might be spent on repeating the reasons why a request had been denied and the effect on some patients of having such a denial repeated endlessly back to them. I think that these concerns are misplaced. Over the years, hospitals have learnt to manage such situations in relation to requests for managers' review of detention, when there are no limits on the frequency or number of requests that may be made for a hearing. If the managers have recently denied a request, giving reasons, and that request is repeated without any change of circumstances, I am sure that it is adequate to refer the patient or relative to the reasons already provided. I support the amendment primarily because it is necessary to build some counter weights into the 1983 Act to compel the worst practitioners into treating patients with greater respect. We need not worry about overburdening good practitioners with unnecessary statutory requirements. If they are any good the statutory requirements will underpin practices that we already have in place. It is the law’s place in this area to establish minimum standards, and this should be one such standard.
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- Baroness Royall of BlaisdonLabour
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- I am grateful to noble Lords for tabling this amendment on the arrangements that govern the transfer of a patient from one hospital to another. I recognise the issues relating to BME patients as explained by the noble Earl, Lord Howe, and the noble Lord, Lord Patel. The amendment raises important issues of good practice and reflects one of the recommendations of the independent inquiry into the death of David Bennett, a mentally disordered person who died at the Norvic Clinic in Norwich in October 1998. We accepted recommendation 19, but we recognise that it is not being properly implemented. However, we do not think this amendment is necessary. Transfers are arranged at the discretion of hospital managers, but patients and their families can make informal representations to hospital managers requesting a transfer, and hospital managers should consider any reasonable request. When doing so, they take account of such factors as the availability of beds and staff at the other hospital; the availability of suitable facilities there; and easier access for the patient to family and friends. These are just examples; there may be other relevant factors. It would not be right to introduce a prescribed process for transfer requests of the sort that this amendment would result in. As I have said, this should be a matter of good practice. There is, of course, guidance on transfers in the draft version of the code of practice that will accompany the amended Mental Health Act, but it may be that there is more that can be usefully said. Indeed, I am certain that there is. We can certainly see no objection to giving guidance in the new version of the code about the possibility of transferring to another hospital; that all transfer requests should be recorded; and that written decisions should normally be issued in response to such requests. It would certainly be possible to list the sorts of factors that hospital managers should take into account when deciding whether a transfer is appropriate. The factors cited in this amendment will be relevant. But there will be others. We shall consult widely before drafting the relevant chapter of the code. Similar arrangements will be made in respect of the code of practice for Wales. The range of factors that might be relevant in determining whether a transfer is appropriate is considerable. I agree that those mentioned in the amendment will be important, but there may be others in individual cases; for example, the level of security required may be a factor. By adopting the code of practice approach, it will be possible to get across to hospital managers more effectively than in legislation the range of factors that will be relevant. I recognise that the amendment is extremely well intentioned and that it is necessary to ensure that recommendation 19 from the David Bennett report is properly implemented. However, in our view, the amendment would result in an overly bureaucratic and restrictive procedure, and we believe that the code of practice is much the best way to deal with these issues. Therefore, I ask the noble Earl to reconsider the amendment.
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- Earl HoweConservative
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- I thank the Minister for her constructive reply. I would certainly settle for a set of provisions in the code of practice that laid out the kinds of consideration to which I referred. I welcome what the Minister said on that front. I hope that some work can be done on that, but I am encouraged by her statement of intent that that will be so. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 37 agreed to.
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- Earl HoweConservative
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- moved Amendment No. 54:
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Baroness NeubergerCrossbench- Quote
- I support most strongly everything that the noble Earl, Lord Howe, has said and, with the permission of the noble Lord, Lord Stevens of Kirkwhelpington, who is not in his place, but was here earlier, I express his strong support, too. He had hoped to speak to the amendment, had we moved a little faster in the debate. Like Nick Hardwick, who was quoted by the noble Earl, the noble Lord, Lord Stevens, feels that whatever else a police cell is, it is not a place of safety for people with mental illness. Over many years, he and I have discussed the enormous problems that this situation has caused, with fragile, vulnerable and very sick people held in police cells for up to three days. The system for moving them to another place of safety is not in place. Therefore, I hope that the Minister will accept the amendment and acknowledge that we must do something.
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Baroness MeacherCrossbench- Quote
- Having worked for eight years with the Police Complaints Authority, I, too, strongly endorse the words of the noble Earl, Lord Howe.
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- Lord Hunt of Kings HeathLabour
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- If only I had a magic wand that could solve this problem. In fact, I have every sympathy with the points that have been raised. There is no question but that a police station is not an ideal place in which to detain a mentally ill person awaiting assessment, and that, of course, hospital-based facilities would be much more appropriate. The issue that the Government have to deal with is that there may be occasions when a police station is the only available facility and when it is necessary, in some circumstances, to detain a person there for longer than 24 hours. For example, it may be impossible for a doctor and an approved mental health professional to get to the police station to examine the patient and interview him within that time, perhaps in a rural area. The person who is detained may be extremely agitated or be behaving aggressively or violently, and it might be necessary to take some time before an assessment can be made. The patient may not be co-operative. It may be difficult to get details of their identity and their family and friends. That is why we believe that sometimes it may be difficult to complete these things within 24 hours, particularly if the person is received at the police station late at night. I understand that my answer will be frustrating for noble Lords. They may be tired of me talking about the development of good practice, but that is one answer to this problem. There are areas where there is adequate alternative provision. For example, the development of hospital-based facilities is reasonably advanced in some parts of the country. I endorse the Metropolitan Police policy whereby police stations are used only as a last resort. That approach is appropriate and is the kind of good practice that we want to develop. I would bring some comfort to the noble Earl by saying that we are moving forward in facilitating that good practice. From April 2006, we have made available a capital package of £130 million for the improvement of the mental health estate—in particular, for the development of hospital-based places of safety. This money will facilitate an increase in hospital-based safety facilities and will reduce the reliance on police stations. We will enforce this in the code of practice that will accompany the amended Mental Health Act. The current code states that police cells should not generally be used. We plan to emphasise in the new version of the code that police stations should be used only as a last resort—for example, if nowhere more suitable is immediately available—and that assessments should be completed as soon as possible. At the end of the day, we need to retain the ability to use police stations if necessary, and we have problems with the sort of test that the noble Earl has suggested by stipulating exceptional circumstances, which may well be over-restrictive. I was not aware of the ambiguity in the law that he suggested, and I would be happy to take that issue away and look at it.
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- Earl HoweConservative
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- In welcoming the latter assurance, as I certainly do, I must express my disappointment with the bulk of the Minister’s reply. I do not accept his explanation. If one reads the amendment, it is clear that I do not propose removing police stations altogether from Section 136. I am quite consciously not doing so; there is a clear exception built into the wording of the amendment. I accept entirely that there are situations where there is no other option than for somebody to be in a police station—for example, in rural areas or when somebody is very violent.
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- Lord Hunt of Kings HeathLabour
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- I do not want to delay the Committee, but the problem is the definition of exceptional circumstances and how they will operate. Clearly, we want to see a reduction in the use of police stations as places of safety, but I fear that the terms used in the amendment would not give enough discretion.
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- Earl HoweConservative
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- It would be defined initially both by case law and by the code of practice, I suppose. I know that the Minister has resisted this, but I do not feel that this is something that can simply lie totally within the code of practice; there has to be something in the Bill. I wonder if the Minister could look at this amendment to see whether it could be made more acceptable. I do not say that every aspect of it is perfect. It would be extremely welcome and would avoid our bringing the matter back at the next stage if the Minister could undertake to have a second look.
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- Lord Hunt of Kings HeathLabour
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- I have said that I will have a look at the ambiguity mentioned by the noble Earl. I can also consider the terms of the debate. However, I would not want to give him undue hope; it would be unfair to do so.
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- Earl HoweConservative
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- I understand. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendment No. 55 not moved.]
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Baroness MurphyCrossbench- Quote
- moved Amendment No. 56:
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- Lord Hunt of Kings HeathLabour
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- I have considerable sympathy with the points raised by the noble Baroness and would be happy to take this back for consideration.
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- Baroness MurphyCrossbench
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- I was so surprised by the Minister’s response that I almost did not rise again. I thank the Minister for that very swift response. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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Baroness WilkinsLabour- Quote
- moved Amendment No. 57:
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Baroness BarkerLiberal Democrat- Quote
- I have said on many occasions that I believe that, if there are no other good reasons for the existence of this House, it is to speak up for those who cannot speak for themselves. On this occasion, I merely wish to congratulate the noble Baroness, Lady Wilkins, on providing a service to Members of another place who clearly are in that position.
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- Earl HoweConservative
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- I, too, congratulate the noble Baroness. Section 141 is about the most blatant piece of discrimination against mental illness as it is possible to imagine in statute. What message would be sent out if it were ever invoked? The message would be that mental illness is equivalent to gross misconduct, on which the Speaker would have no alternative but to take drastic disciplinary action. It would be equivalent to saying that being mentally ill makes you unfit to work and unfit to represent your constituency. I cannot believe that that is what we want the law to require the Speaker in the other place to do, so I very much hope that the Government will think again about Section 141.
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- Lord Hunt of Kings HeathLabour
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- I am grateful to noble Lords for raising this issue. However, the Committee may consider it better for the other place to have a go at this before we come to consider it again. The Government are not persuaded that we should change the legislation at the moment. When the Speaker is notified that a Member is suffering from a mental disorder, as the noble Baroness intimated, he arranges for the Member to be examined by independent registered medical practitioners experienced in mental disorders—appointed by no less than the august person of the president of the Royal College of Psychiatrists, to whom we owe much in relation to our debate today. I know that the provision reads as if it is stigmatising and discriminatory, because legislators suffering from serious physical illnesses are not covered by similar provisions in other legislation. I think that a case can be made for it in the sense that the nature of mental disorder could affect whether a Member thinks he can still adequately do his job. We are also talking about cases where the individual is not being treated informally with their valid consent but compulsorily. The individual is being treated in hospital, so their freedom of movement is reliant on their being granted leave. Their ability to come to the legislature, or to be brought there to participate and vote, is therefore not in their own hands. That is rather distinct from the type of physical illness that the noble Baroness mentioned. It is true that Section 141 has not, to our knowledge, been used since the Act became law. However, if a legislator is still detained at the end of six months, it is not entirely wrong to suggest that their constituents—and we should think of the public interest; no one has mentioned the electorate or those whom the Member of Parliament is there to serve—should have the right to seek alternative representation. That could not be done without the legislator’s seat being vacated. Overall, however, I think it is a matter for the other place.
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- Baroness WilkinsLabour
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- I thank noble Lords for their support for this amendment and the Minister for his response—which was extremely disappointing. I should like to reflect on the matter, and I am sure that the other place will equally reflect on it. In the mean time, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendment No. 58 had been withdrawn from the Marshalled List.]
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- Earl HoweConservative
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- moved Amendment No. 58A:
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- Lord Hunt of Kings HeathLabour
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- I apologise to the noble Earl. The reason I went off is that I thought when he moved Amendment No. 54 that he referred also to the content of Amendment No. 58A. Perhaps I could write to him in view of what he said.
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- Earl HoweConservative
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- I am grateful to the Minister and beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 38 [Mental Capacity Act 2005: deprivation of liberty]: [Amendment No. 59 not moved.] Clause 38 agreed to. Schedule 6 [Mental Capacity Act 2005: new Schedule A1]:
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- Baroness BarkerLiberal Democrat
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- moved Amendment No. 60:
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- Baroness Ashton of UphollandLabour
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- I am grateful to the noble Baroness for giving us some of the background and for setting out the reasons why we are debating this issue. I urge noble Lords to take themselves back to those fabulous days when we debated at enormous length an important piece of legislation which I was very proud to take through your Lordships’ House and pay tribute to the noble Baroness, Lady Barker, and the noble Earl, Lord Howe, for the work they did in helping us to do that as effectively as we did. Other noble Lords know the part they played in this regard and I want to pay particular tribute to Lord Carter for the work that he did. Without him I am sure we would not have ended up with such an important piece of legislation. I am very sorry the noble Lord, Lord Rix, is not with us. I know he is in hospital and doing well. I am sure noble Lords will join me in wishing him well and hoping he will be with us soon, certainly for Report stage, as I need to hear his voice in this debate. We are in the Mental Capacity Act. The reason we are taking these clauses in the Mental Health Act is because, as noble Lords will recall, we were trying to find a solution that drew a consensus that dealt with the particular case, as the noble Baroness has said, of the Bournewood Hospital which kept someone described as an informal patient in hospital against the wishes of his carers. The European Court of Human Rights found that there had been a deprivation of his liberty in contravention of Article 5(1) and Article 5(4) of the European Convention on Human Rights. As a consequence the Government has moved to seek to address this problem in the most appropriate way. Adults have the right to make their own decisions; in some cases they are not able to do so. The Mental Capacity Act set out some critically important principles about the issues to do with capacity and what we should do if a person lacks the capacity to take the decision themselves. We recognise that some people who lack capacity to consent—and I will return to this—need to be deprived of liberty but are not detained under the Mental Health Act. Additional safeguards are needed to protect the human rights of these people. They must be protected from arbitrary detention and given speedy access to the courts. This is not about taking new powers to detain people. It is about giving safeguards to the most vulnerable in care homes and hospitals who need to have their liberty curtailed and considered and who, in some cases, need to be deprived of aspects of their liberty in order to keep them safe and protected and to provide the highest quality care. That is a fundamental issue which we need to address. The noble Baroness, Lady Barker, rightly says that we have not tried to define it, but I want to say what I believe she is looking for in terms of what the European Court of Human Rights has identified in judgments in cases to date as contributing to the deprivation of liberty. Briefly, they are: restraint was used, including sedation, to admit a person who is resisting; professionals exercised complete and effective control over care and movement for a significant period; professionals exercised control over assessments, treatments, contacts and residence; the person would be prevented from leaving if they made a meaningful attempt to do so; a request by carers for the person to be discharged from their care was refused; the person was unable to maintain social contacts because of restrictions placed on access to other people; and the person lost autonomy because they were under continuous supervision and control. I hope that that sets out some of the areas, but we have determined that ultimately this is for the courts to decide. I have made it clear that this is not about punishment and not about a deprivation in the wrong context. Looking at who should pay should be in the context of the well established principle of means testing, from which the Government have no intention of moving away. I know that noble Lords from other parties take a different view and we can debate at length the resources in the health service and the Government as a whole. Means testing has been a long-established principle. Therefore I do not have the sympathy for the amendment which the noble Baroness would have wished me to have. Hand in hand with it, there is a suggestion that the deprivation of liberty is negative; somehow being perceived as taking away from someone something that they would prefer to have. The whole basis of the Bournewood principle is that people are deprived of their liberty because they need to be made safe and secure and given high-quality care. I see no reason therefore to suggest that the means-testing element should be disapplied. If one accepts—and I do—the principle of means testing in these cases, it is in order to provide high-quality care. The principles behind the Bournewood provisions are precisely that. Furthermore, I do not accept the care plan approach, although I understand why the noble Baroness is raising it. Indeed, I had the privilege of meeting stakeholders this morning when we talked around this issue. While it is important to ensure that the highest quality care plan approach is taken by those working with individuals who lack capacity, I do not think you would necessarily get that or get to the point of saying, “We won’t deprive them of their liberty because if we do we have to pay”. That is not the right way to approach this issue. I accept that the underlying issue is to ensure that the decisions and the approach to the deprivation of liberty should be made only where it is in the right and proper interest of the individual and the best interests assessor will have the responsibility for so doing. But it would be wrong to take the approach that says, “If you’ve got to pay for it, perhaps it is an incentive not to do it”. It is precisely in order to support and care for such people that we wish to do it. I do not accept that as a principle and therefore would reject the amendment and hope that the noble Baroness will withdraw it. However, I understand the issues underlying it and hope that within the code of practice we can ensure that the highest quality care is always provided in order to support people who lack capacity and who for reasons of good high quality care need to have a deprivation of liberty to some degree or other. I hope that on that basis the noble Baroness will withdraw her amendment.
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- Baroness BarkerLiberal Democrat
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- The noble Baroness replied with her customary fullness of detail and consideration and I thank her for that. One aspect that ought to be stressed is the different ways in which care for older people in residential homes is paid for. The difference between self-funders and those who have their care commissioned by local authorities is an important factor in all this. Perhaps the Minister’s reply underestimates the forces that might be at work in any case, depending on who is paying for the person’s care. That may be a big consideration in whether an authorisation is triggered in the first place. That is an important consideration. It is important to say that detention and deprivation of liberty is more than a mere technicality. Just because people lack capacity—
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- Baroness Ashton of UphollandLabour
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- I did not suggest for a minute that it was a technicality—I know that the noble Baroness is not accusing me of that. It is a critically important issue. The point I was making was that it is done in order to provide high quality safe care for someone, not as either some kind of punishment or detriment to their life. It is a necessity to keep them safe and secure to provide high quality care.
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- Baroness BarkerLiberal Democrat
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- I fully accept that point and I apologise if I misrepresented what the Minister said, but she might concede that where there is a deprivation of liberty that is an evident indication that there is something wrong with someone’s care—
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- Baroness Ashton of UphollandLabour
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- I do not accept that because if we think about some of the circumstances of care that one is providing for individuals, the deprivation of liberty might be in order to ensure that they are secure and safe—one can think not only of elderly patients who may suffer from dementia but also, for example, those with severe learning difficulties perhaps on the extreme end of the autistic spectrum—and be classified in a range of ways: to ensure that they are able to socialise; to eat effectively; to be able to go outside properly; and so on. I do not think that it is about the quality of the care being negative but about ensuring that patients obtain the highest quality care.
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- Baroness BarkerLiberal Democrat
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- There we have a difference because I believe that it is likely to indicate that there is something inappropriate about the care being received. We have not yet discussed that the amendment as proposed would cover independent care homes. That is an important point that will need to be considered at any future stage. I fear that at this hour, no matter how long I bowl on this important point, I am not going to get anywhere. I thank the Minister for her consideration and I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- Earl HoweConservative
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- moved Amendment No. 61:
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- Baroness MurphyCrossbench
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- I know that my noble friend Lord Rix wished to make a point about the case that generated all this controversy. It resulted from the carers in the Bournewood case drawing it to the attention of the hospital that they did not feel that the patient should be detained. Unless we accept the amendment and changes in the safeguards, the Bournewood problem will not be solved.
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- Baroness Ashton of UphollandLabour
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- I am grateful to the noble Earl and the noble Baroness. I had a very useful discussion this morning with a number of stakeholders, including representatives from the care home sector and other organisations, who made the very point that the noble Baroness made on behalf of the noble Lord, Lord Rix. The care homes were equally concerned to make sure that we did not move to a point where it was not clear who had the statutory duty and where the responsibility lay. I hesitate to say it, but requests could be made in an almost vexatious way, with people constantly asking questions. They wanted clarity. In statute, we must be clear that we are putting a duty on one body to identify anyone at risk of deprivation of liberty and to apply for authorisation. I do not say that to dismiss the concerns, but we must make sure that we have one body applying for authorisation and that we minimise the potential risks for individuals not to receive the safeguards to which they are entitled. That is why we have put it this way in the framework of the legislation. Where families are concerned that an authorisation should have been applied for, they will draw that to the attention of the care home or the hospital. It is important to recognise the reality of legal redress; therefore, a request should not be taken lightly. Families can take action through the complaints procedure, but if the question cannot be resolved, there is the opportunity to apply to the Court of Protection. There is a package of measures available but, having said that, I have been thinking about this quite a lot today. I am happy to go away and think whether there are any further steps I can take that would allay concerns, not least those of the family in the Bournewood case. I begin from the principle that one body needs to have statutory responsibility; it is a question of how best we can make sure that families, carers, and others are able to raise their concerns without muddying the waters in a way that would not help. I hope that on that basis the noble Earl will feel able to withdraw the amendment.
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- Earl HoweConservative
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- That was a very welcome assurance; I could not have asked the noble Baroness to do more. I hope that we can have constructive discussions between now and the next stage of the Bill. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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The Countess of MarCrossbench- Quote
- As it is nearly 10.50 pm, we have seven groups of amendments left and we have to go to bed by 11 o’clock, may I propose that the House do now resume?
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Lord GrocottLabour- Quote
- I am a little startled to have had this proposed without any notice whatever, particularly from a senior Deputy Speaker. If that is the determination, the noble Countess will have to move this to a Division. She knows perfectly well that if she moves a Motion and we have a Division on it, that takes another quarter of an hour, whatever happens. I request that the noble Countess does not do that at this stage. I have no intention, nor does anyone else, of going on ad infinitum, but we certainly have time to debate another group. I respectfully suggest that the noble Countess does not move a Motion to resume the House at this stage.
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- The Countess of MarCrossbench
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- Can the Chief Whip assure me that the next group will not exceed the unusual retiring time of 11 o’clock on a Wednesday evening when the staff have to come to work at 11 o’clock tomorrow morning and there is still business to continue? Why do we not continue the next page on the next day?
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- Lord GrocottLabour
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- I really do not think that we can negotiate the business of the House—it is already taking time to do so. I will say to the noble Countess—and it is farther than I would normally go—that I will talk to other members of the usual channels, including the Convenor of the Cross-Bench Peers, in the normal way. However, I strongly appeal to her to let us get on with this now and see where we get to.
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- Baroness BarkerLiberal Democrat
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- moved Amendment No. 61A:
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- Earl HoweConservative
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- I shall speak very briefly to Amendment No. 65, which is designed to ensure that where the supervisory body refuses to authorise a deprivation of liberty, but believes that an unauthorised deprivation of liberty is taking place, it informs the relevant people, including the police and the relevant inspection body. I have tabled the amendment more as a means of probing the Government than anything else. Once a deprivation of liberty has been identified but not authorised, it is important to know what steps would be taken next. It seems essential that where an unauthorised deprivation of liberty is taking place steps are taken as soon as possible to ensure that it stops. I see that in paragraph 44 of Schedule 6 there is provision to ensure that where it appears to the best interests assessor that there is an unauthorised deprivation of liberty and that the relevant person does not meet the best interests requirement then he must include a statement to that effect in his assessment, but it does not give any indication that that information should be communicated to the various people, listed in paragraph 58, who have to be given notice of any decision not to grant a standard authorisation. In any case, the list in paragraph 58 does not contain any inspection agencies. Once again, I hope the Minister will agree to look again at this point, which has been brought to my notice by the Making Decisions Alliance.
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- Baroness Ashton of UphollandLabour
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- The noble Earl is right to point out the role of the best interests assessor, who has to give reasons in the report of his assessment for his conclusion that deprivation of liberty is not in the person’s best interests. We think that that is the best way for that to be dealt with because he, rather than the supervisory body, will be in close contact with the person, his family, friends and carers and with care homes and hospital staff and will be best able to advise on how deprivation of liberty should be avoided. The way that Schedule 6 is drafted provides for the person concerned or anyone with an interest consulted by the best interests assessor and any independent mental capacity advocate to be told that the authorisation has not been granted. They will therefore be aware that the deprivation of liberty is unnecessary and will be expecting changes to take place in the care plan that has been established. I share the ambition to ensure that appropriate action is taken when unnecessary deprivation of liberty is identified. We think we can achieve that through the arrangements that we are making for the assessor to recommend how the deprivation of liberty can be avoided and through the code of practice. I am inevitably happy to think further about whether we can do more to strengthen that in the context of the code of practice and whether we have this right in the Bill.
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- Baroness BarkerLiberal Democrat
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- I thank the Minister for that reply. She will understand the strength of feeling that lies behind this and the need to plug the gap. I am heartened by her comments and I look forward to her department coming forward with proposals. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- Baroness Royall of BlaisdonLabour
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- I beg to move that the House do now resume. Moved accordingly, and, on Question, Motion agreed to. House resumed. House adjourned at 10.55 pm.
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