Report stage in the Lords
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- moved Amendment No. 55:
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Lord Patel of BlackburnLabour- Quote
- My Lords, Amendments Nos. 56A and 58A relate to the authority for treating patients who are made subject to community treatment orders or returned to hospital under such an order. They would replace Clauses 28 and 29, which establish the Government’s proposals on these matters. My main concern about those proposals is illustrated by the professional slang that has started to be used to refer to second-opinion appointed doctors—commonly known as SOADs—in the context of their proposed role in relation to community patients. The new term is “super-SOADs”, from which we can infer that we are talking about a SOAD with special powers. The special powers in question are indeed remarkable, and include the ability to see into the future. Under the Bill, at some point during an initial period of at least one month, a community patient will receive a visit from a SOAD. The SOAD will examine the patient and authorise whatever treatment he or she thinks is appropriate at the time according to criteria set out in the Act, but he will also be able to anticipate and authorise the treatments to be imposed on the patient should he or she be recalled to hospital. This, I suggest, is where the Bill requires a SOAD to be not only a psychiatrist but also a person with paranormal powers. In short, it anticipates that a SOAD, whose role should be to safeguard against unnecessary or unsafe compulsory treatment, will authorise the forced application of medication in circumstances that he or she cannot foresee at some unpredictable point in the future. The SOAD can have no way of anticipating the circumstances whereby a community patient might be recalled to hospital or what physical or indeed mental condition that patient would be in upon such a recall. A patient who has developed dangerous and possibly irreversible side effects might have them worsened by the further imposition of medication on the authority of the SOAD. A patient with a heart condition might be killed by the imposition of medication authorised in good faith by the SOAD. Alternatively, the patient may have become pregnant, in which case some medications might be dangerous to her or her unborn child. The Minister may argue that I am ignoring the obvious fact that the responsible clinician or whoever is involved in actually giving the treatment to the recalled patient will of course have a duty of care and will not endanger their health or life recklessly in these ways. But if the only safeguard against a SOAD’s authorisation being used recklessly in a context other than that in which it was given is the professional judgment of the treating doctor, or even nurse, we have negated the point of the SOAD role. It is important to preserve the role of the SOAD in considering what treatment should be given on the basis of the actual presentation of the patient at the time of their examination. This is the protection that SOADs can offer patients. The Minister may also argue that SOADs already authorise some treatments in advance of their being given, which of course is true, particularly with medication that is authorised on a ‘PRN’ or as-required basis; but they do so on the basis of the patient’s presentation and situation at the time of their visit, having examined the patient and consulted two other members of staff who have professional involvement with the patient’s care. The SOAD is not acting as if he or she can predict the future. I should make it clear that I have an interest as chairman of the Mental Health Act Commission, which is responsible for the administration of second opinions. One of the commission’s roles is to appoint and train SOADs, and this means that it must provide advice on second-opinion procedure. The Mental Health Act Commission will be likely to advise SOADs to be extremely cautious when considering whether or not to authorise treatments to be given in an unforeseeable situation at an unidentified point in the future. Indeed, even putting the issue in this way makes me wonder whether the discretion that the Bill allows SOADs in this respect will actually be taken up by this body of responsible psychiatrists. I have to say that I hope it will not. The Bill’s proposals for SOADs raise another ethical issue. According to the Bill and the draft code of practice, a SOAD who certifies that a community patient consents to treatment would also be enabled to certify what treatments can be imposed on the patient if he or she withdraws consent and is recalled to hospital. I realise that the possibility of coercion hangs over the heads of many psychiatric patients, but this truly is a sword of Damocles. At the very least it would appear to breach the principle underlying true consent as set out in the Mental Health Act code of practice, which at paragraph 15.13 states: “Permission given under any unfair or undue pressure is not ‘consent’”. This brings me to my alternative model, set out in these amendments. The key difference between my model and the Bill is that any certification of the treatment of a community patient cannot authorise treatment upon recall. This means that the forcible imposition of treatment to a recalled community patient would find authority only in the urgent treatment provisions set out in Section 62 unless and until a further second opinion is requested to consider treatment in the new context of detention. The amendment would not extend the three-month rule. Under the Bill, the requirement for a certificate authorising treatment takes effect only after the CTO has been in place for at least one month, and may be longer. A patient discharged to a CTO during his three-month period as an in-patient would have to wait until all of the unspent part of the three months had run its course before having the safeguard of a second opinion. Indeed, when an in-patient’s three-month period is but a distant memory, if that patient is discharged on to a CTO he or she will be subject to a new one-month period where the safeguards over his or her treatment as an in-patient will be suspended. I think patients will perceive that to be simply unjust. My alternative proposal, where the three-month period still has some time left to run when the CTO is made, is to require certification no later than one month from the start of that order. Therefore, if the three-month period had expired within the first month, it would not be extended at all. If it were extended for more than one month from the start of the CTO, it would expire exactly one month from the start of that order. For in-patients whose three-month period has expired at the point when a community treatment order is made, I would require certification from the start of the order. Let us remember that drug treatment in the community is inherently less safe than such treatment under 24-hour medical care in hospital. We should be increasing the safeguards for community patients, not lessening them. To enable the certification from the start of CTOs, part of the preparation for discharging a patient on to a CTO would be for incapable patients to be visited by a SOAD, and for a capable patient to have a consent discussion with a clinician responsible for the treatment. It would be permissible to complete certificates prior to the patient’s discharge that would only take effect once they become a community patient. There is a precedent for that in the fact that all detained patients who are currently coming to the end of their three-month period will have Section 58 certificates completed for them, with such certificates taking effect only when the period has actually expired. Such an approach seems to be both more of a safeguard for patients and more practical for the administration of the SOAD system. One of the great unknowns in the Government’s proposals is how the second-opinion system might work with community-based patients. My proposals would allow for many SOAD visits in relation to the new powers to be undertaken before the patient ceases to be resident in hospital. At the very least, such a system would ensure that we knew where the patients were when they were due to be examined by a SOAD. I have some concerns that under the Government’s proposals a great many clinicians would be faced with the dilemma of whether to recall a patient to hospital simply because they do not attend appointments to meet a SOAD. Nothing in my proposed arrangements contradicts my objections to SOADs anticipating patients recalling their authorisations. Certification, as a part of the discharge package, would of course take place where a patient’s situation and mental or physical state were quite apparent to the certifying doctor. My amendment would reduce the complexity of the Bill; it uses the existing framework of Section 58 as its basis. We have heard from the Minister many times during our debates about the limitations of an amending Bill, and that we are not writing new mental health legislation from scratch. In that spirit, I offer this amendment on the basis that it makes only the most necessary changes to the current statute to set out the effects of community treatment orders under Part 4 of the 1983 Act. My amendments, in contrast to the Bill’s provisions, would result in simpler and more practical arrangements for authorising treatment in these circumstances. Moreover, they would preserve the role of the SOAD, they would be safer for patients and more acceptable in ethical terms for the professionals who operate the Act. I hope the Minister will give them full consideration.
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Lord Hunt of Kings HeathLabour- Quote
- My Lords, I am grateful to the noble Lord for allowing us to debate what is undoubtedly an important matter. However, the Government disagree with him. I shall explain. When a patient on supervised community treatment is recalled, it will be because he needs treatment in hospital to avert a risk to himself or others. He may have failed to comply with the medication authorised in the certificate, and it is simply the lack of compliance that engenders a risk. In that case, the treatment he needs would be the same as he has been receiving in the community. Alternatively, the patient’s condition may have deteriorated to the point where some additional different treatment is needed to restore his stability. I am advised that it is possible to foresee the possibility that such deterioration might occur, and to determine what medication would be needed to deal with it. SOADs make that kind of assessment quite regularly when they authorise treatment to be given as required. That is simply the kind of judgment we are proposing clinicians might make when completing a Part 4A certificate. It is interesting to note that, under the Mental Health Care and Treatment (Scotland) Act, which we have discussed on a number of occasions, it is possible to authorise treatment given on recall, just as we propose. I understand that this has caused no particular problems.
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Baroness BarkerLiberal Democrat- Quote
- My Lords, before the Minister sits down, perhaps he will help me. Am I right in believing that the doctors who will be judging the effects of non-compliance with regard to medication are the same doctors whom the Government believe cannot predict the therapeutic benefit of a treatment for a patient? That is a problem for me. There is a hole in the Government’s logic and expectations.
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- Lord Hunt of Kings HeathLabour
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- My Lords, if there is a hole in the Government’s logic, I guess there is one in the noble Baroness’s logic, too. She is trying to argue it both ways. It is a different scale of order in relation to treatability more generally and to medication. This is a safeguard for patients. On Question, amendment agreed to.
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- Lord Hunt of Kings HeathLabour
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- moved Amendment No. 56:
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The Lord Speaker (Baroness Hayman)Crossbench- Quote
- My Lords, Amendment No. 56A has been discussed in the group with Amendment No. 55. It is up to the noble Lord, Lord Patel of Bradford, whether he chooses not to move it; but, as it is now in its correct place on the Order Paper, he is free to move it now if he wishes to debate it further.
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Lord Patel of BradfordNon-affiliated- Quote
- had given notice of his intention to move Amendment No. 56A:
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Lord Williamson of HortonCrossbench- Quote
- moved Amendment No. 57:
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Baroness MeacherCrossbench- Quote
- My Lords, needless to say, I will speak extremely briefly. This amendment seeks to deal with the prejudice against those with mental health problems which is reflected throughout the NHS. If we look at NHS budgets, I believe it is true to say that some 30 per cent of patients suffer with mental health problems, but only 13 per cent of the NHS budget is devoted to people with those problems. It is argued that physical treatments cost a great deal more than mental health treatments, but that situation is very far from straightforward. A complex care bed in a psychiatric hospital, particularly in the private sector, can cost £250,000 a year. Of course, some people remain for that time or a good deal longer. A bed in an intensive care ward can cost £90,000 a year. How many physically ill patients have treatment regimes that cost anything like that amount? The principal argument behind this amendment has been that a quarter of people seeking assessment and help with their mental health problems are turned away. The likelihood is that a good proportion of those people will finish up needing these very expensive in-patient psychiatric admissions. The reality is that within the mental health budget, funding is heavily focused on those services directly affected by the Mental Health Act—for example, special hospitals, medium secure units and intensive care units where detained patients tend to be looked after. If someone really wants mental health services, believe me, they need to have a thorough-going psychiatric breakdown and get themselves detained under the Act. If you do not do that, you have not got much chance of anything like adequate care and treatment. I really do not believe that the Government want to be responsible for a service with that extreme imbalance in the allocation of resources. This amendment would over time encourage more resources to be focused on prevention. This would support the Government’s welfare reform strategy, of which the Minister is much more aware than probably any of the rest of us. Early assessment and evidence-based therapy would prevent people losing their jobs and help others back to work. This amendment would thus also help to fulfil the Government’s social inclusion agenda—all sorts of government agendas are being talked about in this very short debate. I am sure that none of us supporting this amendment wants a section in the Act which would leave the Government open to endless litigation. This amendment avoids that problem and keeps the House within its legitimate boundaries by not requiring additional resources, so long as reasons are given for an inability to respond to a request. The aim would be, through increased awareness of need as a result of an assessment being done, that appropriate treatment would in time become available. I hope that the Minister will give us some assurance that a way forward can be found to ensure that people suffering crippling mental health symptoms can be assured of an assessment, exactly as any patient with comparable physical symptoms could take for granted.
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- Lord Hunt of Kings HeathLabour
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- My Lords, this has been a short but important debate. The argument between us, if it is such, is that we believe that there are sufficient existing duties providing for the assessment of patients and the provision of services in legislative provision at the moment, which makes the amendment unnecessary. However, I fully accept that noble Lords have raised issues in relation to the provision of adequate assessment, which deserves every consideration. The Government readily acknowledge that the issues that they have raised are real and that there are people who experience issues in accessing assessment and services. Noble Lords gave examples of problems in Committee and at this stage. Because we believe that existing statutory duties cover the point, the issue is how to ensure that statutory services ensure that the kind of problems that they have raised do not occur in practice. We have to build on the progress that we have made in recent years. The national service framework has laid the foundation for the kind of service that we want in mental health care. We have seen many more resources put in, with more people employed, and services such as assertive outreach, which we have discussed in the context of supervised community treatment. One hundred and nine early intervention teams have been formed, as well as 343 crisis intervention teams and 262 outreach teams. I am not at all complacent. I realise that there is more to do and that, if the noble Baroness is right and there is no level playing field in practice between physical and mental services, we need to ensure that in statute there is a level playing field. The issue is how to ensure that there is one with regard to services on the ground. I am afraid—because I know that noble Lords may find this answer tedious—that we will not achieve that through legislation. We have to achieve it through determination to continue improvements to ensure that people do not slip through the net and that when assessment and services are needed they are provided. But there is no moving away from the hard graft that needs to be done on the ground to ensure that that happens.
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- Lord Williamson of HortonCrossbench
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- My Lords, I thank the Minister for his reply. The issue is important and I am strengthened by the convincing arguments presented by my noble friend Lady Meacher, which I thought were very much to the point. I am grateful for the Minister’s acknowledgement of the importance of the issue and his determination to build on the progress that we have already made. Since he has promised us hard graft, I shall look to him for hard graft in future. On that basis, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 29 [Authority to treat]:
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- Lord Hunt of Kings HeathLabour
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- moved Amendment No. 58:
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Earl HoweConservative- Quote
- moved Amendment No. 59:
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- Earl HoweConservative
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- moved Amendment No. 60:
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The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland)Labour- Quote
- My Lords, I am very grateful to the noble Earl for introducing his amendment. My background briefing says that this is a very clever amendment, so I pay tribute to him for that. I, too, was struck by what the noble and learned Baroness, Lady Hale, said in responding to this. The critical part of what she said was about being practical and effective in what we did in terms of the amendment. I thought very carefully about the issue that the noble Earl has rightly raised. I reiterate what I said in Committee: I have no difficulty with the principle behind what the noble Earl is seeking to achieve; the discussion between us is how we get there. There is a difficulty in placing this in the Bill, because we run into two possible problems. One is the inflexibility that primary legislation can offer us sometimes, which could be a difficulty. Secondly, I hope that the amendment is unnecessary, for two reasons. First, in the draft code of practice we have been very clear. It states: “If the patient’s case has not already been considered by the MHRT—or a significant period has passed since that hearing—Hospital Managers should consider making a request as soon as the detention is extended. A failure to do so could result in a breach of the patient’s rights under the Human Rights Act 1998”. That raises my second point, which is that under either the ECHR or the Human Rights Act we have very clear guidance and understanding in the public bodies that they have a right and a duty to comply with the Human Rights Act. I am happy to commit to look again at the code of practice to see whether we can strengthen this aspect of it to address the reasonable concerns expressed by the noble Earl to make sure that this actually happens when it should happen. I hope that in so doing, although I am not committing to putting this in the Bill, I will be able to demonstrate as the Bill passes to another place that I have addressed the concern that is reasonably raised in the amendment. To do so would make sure that the combination of ECHR/Human Rights Act compliance and the requirements under the code of practice addresses the concerns that the noble Earl raises. On that basis, I hope that he is able to withdraw his amendment.
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- Earl HoweConservative
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- My Lords, I am very grateful to the Minister for that helpful and positive reply, and I accept her offer with gratitude. I am grateful to her for giving such serious thought to the proposals that I put forward. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 33 [Cross-border arrangements]:
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- Lord Hunt of Kings HeathLabour
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- moved Amendment No. 61:
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- Lord Hunt of Kings HeathLabour
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- moved Amendments Nos. 62 to 66:
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- Lord Hunt of Kings HeathLabour
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- moved Amendment No. 67:
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- Earl HoweConservative
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- My Lords, perhaps I may say how very much I welcome the amendment tabled by the Government, which undoubtedly goes a long way to address some of the concerns voiced in Committee about consent to treatment for minors. Unfortunately, and at the risk of appearing to be a latter-day Oliver Twist asking for more, I wonder whether the amendment goes far enough. It could be said that it sets up an anomaly. If the amendment is made to the Bill in the form in which it has been tabled, the rights of a 16 or 17 year-old are protected, but those of a Gillick-competent child are not. That discrepancy is unsatisfactory and potentially confusing. Amendment No. 71, which stands in my name and that of other noble Lords, would provide an explicit statutory provision that those with parental responsibility could not over-ride the competent refusal of a child or young person for treatment for a mental disorder. Perhaps I could briefly set out why this is an issue. It has commonly been accepted that the refusal of a Gillick-competent child or a mentally capable 16 or 17 year-old to accept medical treatment can be over-ridden by a person with parental responsibility for that child or young person. That principle was established in a 1992 case, In Re W. In the area of mental health, this led to uncertainty: should a professional rely on parental consent in the face of the child or young person refusing, or should he use the powers of compulsion under the Mental Health Act 1983? That uncertainty typically causes delay in making appropriate arrangements for the child or young person, which is highly unsatisfactory. The Department of Health initially cited case law as giving greater autonomy to children and young people; the Minister referred to that in Committee. However, the case law in question, the Axon case, is not conclusive. It relates to the duty of confidentiality. It considered how medical professionals should deal with young people who are Gillick competent and want advice on sexual matters but who cannot be persuaded to inform their parents or to permit the medical professionals to inform their parents. It does not, therefore, address the issue of a competent child’s refusal of medical treatment. Indeed, the case of In Re W is not mentioned in Axon. In Committee, the Minister referred to changes to the code of practice. In fact, the draft illustrative code of practice removes references to the refusal of a Gillick-competent child or a capable 16 or 17 year-old being over-ridden by a person with parental responsibility. However, it cites no case law to support that view, nor is there any explanation for the change in approach. There is confusion here. The department’s 2001 guidance, Reference Guide to Consent for Examination or Treatment, refers to parental consent over-riding the refusal of a competent child or young person and suggests that this power should be used only rarely. But the guidance then states that, “no definitive guidance has been given as to when it is appropriate to over-rule a competent young person’s refusal”. So the cause for concern is not simply that there is a need for guidance in the form of a code of practice, or whatever, to resolve the confusion among practitioners; the amendment is needed because the current law is unclear. I believe that it can be made unambiguous only by including a provision on the face of the Bill. I hope that the Minister will agree to look at this issue very carefully.
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Baroness WalmsleyLiberal Democrat- Quote
- My Lords, I support the noble Earl, Lord Howe, and thank the Minister for his letter to me explaining the position that he took at that time and for his change of heart. We very much welcome the amendment, although it does not quite go far enough. The concept of the Gillick-competent child is quite well understood. It works very well in relation to sexual advice. If you were dealing with a large number of children—in a school, for example—it might be practically difficult to use the concept of a Gillick-competent child in making decisions. The cases we are talking about involve individual children whom the professionals have had every opportunity to get to know and to assess whether they are competent to make the decision. In that situation, I suggest to the Minister that, practically speaking, it is very reasonable to ask the Government to include not just 16 and 17 year-olds but also those children who can demonstrate their competence to decide on these matters.
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- Lord Hunt of Kings HeathLabour
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- My Lords, I am grateful for the noble Baroness’s helpful comments. This is clearly a complex area. I begin by saying that I should be very happy to institute discussions between now and further stages of the Bill. I give no commitment but it is important that there is an opportunity to discuss a complex area. I am happy to accept the invitation that noble Lords have given to enable that to happen. The Family Law Reform Act provided that 16 should be the age at which the consent to treatment should be treated as though that person were an adult and the consent of a person with parental responsibility should not be required. The Mental Capacity Act, as I have already said, also provided that in general none of the measures in it would apply to persons under 16. The position of under-16s is more complex; there is likely to be far more variation. That is why our initial thinking is that guidance is able to go into much greater detail in this difficult area. That is our preference. Where the child is Gillick-competent—that is, it is deemed that they understand what they are consenting to and the consequences of that consent—and the child consents, the draft code plainly says that he can be admitted informally on that basis. I reiterate for the noble Earl, Lord Howe, that that is very much a draft code and is work in progress. Comments made during the passage of this Bill will undoubtedly be fed into the code. Where a Gillick-competent child refuses, our guidance will state that it would be unwise to rely on the consent of a person with parental responsibility, and to detain a Gillick-competent child against his wishes might be in breach of Article 5 of the ECHR. The code will suggest that detention under the Mental Health Act should be considered, although again there is the possibility of an application to the court. But, for under-16s, every case will be different and depend on the specific facts of that case. That is why we think that it is right to leave under-16s to the code. This is a developing area of law; that is why we think it better to put this guidance in the code. I accept what the noble Earl said about clarity in the law but the problem with the amendment is that it requires children to be treated as adults as a blanket rule; we think that for those under 16 every case will need to be looked at individually and had regard to a range of factors that will be explained in the guidance. For example, where the child is not Gillick-competent to make such a decision, if the decision falls within the zone of parental responsibility, a person with parental responsibility will be able to give consent and the child can be admitted informally on the basis of that consent. Guidance as to what is within what is known as the zone of parental responsibility will be given in the code. Again, this is a developing area, and we think it more helpful to give detailed advice in the code, which can be updated from time to time. It is, however, basically about the kind of decisions that our society thinks it proper for a person with parental responsibility to be able to take. Where the child is not Gillick-competent and either it is not considered that the child could be admitted informally on the basis of the consent of a person with parental responsibility, or no person with parental responsibility is prepared to consent, consideration should be given to the use of compulsion or, occasionally, an application to the court. As I said, the Family Law Reform Act sets 16 as the benchmark for a young person to give consent to treatment as though he were an adult. We think that our approach is in line with that. I should be happy to enable further discussions to take place on this important matter but our default position is that, because of the complexity, we think that the code of practice is the best place to deal with it. On Question, amendment agreed to.
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- Lord Hunt of Kings HeathLabour
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- moved Amendment No. 68:
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The Deputy Speaker (Baroness Gould of Potternewton)Labour- Quote
- My Lords, I do not think that the noble Lord has spoken to this amendment.
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- Lord Hunt of Kings HeathLabour
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- My Lords, I apologise to the House. I am not used to moving amendments at the start of a group. No wonder the noble Lord, Lord Patel, and I got mixed up last time. It may be helpful if I speak briefly to my amendment. The noble Earl, Lord Howe, and the noble Baroness, Lady Neuberger, may then like to speak to their amendment and I shall respond to that. Amendment No. 68 is a response to some of the concerns raised in Committee. It would enable a person detained at a place of safety under either Sections 135 or 136 of the Act to be moved from one place of safety to another. I beg to move.
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- Earl HoweConservative
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- My Lords, I am extremely grateful to the Minister for having tabled the government amendment. It is most welcome and responds to the concerns expressed from around the Chamber in Committee that the law as it stands is inappropriately rigid. A permissive power to move a mentally disordered person from a police cell to another place of safety without necessarily waiting for 72 hours to elapse is a sensible and humane provision. However, perhaps I may bring us back to our Committee debates. I confess to a measure of disappointment that the Government have not felt able to pick up some of the other concerns that I and others raised on that occasion. The amendment in my name grouped here is designed to go somewhat further than Amendment No. 68. Everyone agrees that a police cell is not a therapeutic environment for someone who may have reached a mental crisis point and may even be suicidal. It is simply, if you like, an expediency. I do not propose to repeat everything that I said in Committee, but putting someone in a police cell when they are in an excited or depressed state of mind is neither good for the person nor fair on the police. We have to recognise that police cells should be available as a last resort, but that is not what the Act says. It places police cells on an equal footing with other places of safety as though all had equal validity. Amendment No. 69A therefore says that a police cell should be used only if it is impracticable to use a therapeutic environment. It also proposes that the period of 72 hours allowed for in the Act for someone with mental health problems to be detained by the police is too long and that it should be reduced to 24 hours. I still think that the case for making this change is extremely strong, and it is supported fully by the Police Federation and the Independent Police Complaints Commission. In fact, new research from the IPCC shows that the average amount of time that those detained under Section 136 are held in custody is 10 hours. The vast majority of detainees—95 per cent, in fact—leave police custody after 18 hours. That suggests very strongly that making an amendment to the Act to reduce the maximum period of police custody to 24 hours would not represent an unduly onerous requirement. Indeed, it is fair to say that it is only the absence of suitably trained specialist staff to carry out assessments that prevents police in some areas of the country discharging mentally disordered detainees even more quickly. With that thought in mind, the amendment would also put in the Act a duty to ensure that, where someone is detained in a cell, he must be assessed by mental health professionals or transferred to a psychiatric hospital within the shortest possible time. I realise that the Minister is unlikely to warm to the amendment or at least to the parts of it that do not chime in with Amendment No. 68. In view of the widespread concerns expressed on these issues, both from the police and the mental health community, I ask him whether he will agree once more to take these various points away with him and give them further thought. If he cannot agree to the amendment, it would be extremely welcome if the Minister were able to give a commitment to monitor the use of police cells as places of safety and publish the figures regularly. At least that would help to establish the extent of the problem and the particular areas in which police cells are over-used. At the moment, there are no official national statistics or monitoring of the use of police stations as places of safety. I understand that the Police Federation does not believe that that would be an unnecessary administrative burden. Most police authorities already have a computer system that allows them to log in when a patient is brought in under Section 136. However, according to the IPCC research, currently there are wide variations in the way in which that data are recorded, which makes it difficult to establish accurate numbers of people detained in police cells.
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- Lord Hunt of Kings HeathLabour
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- My Lords, I seem to be forever destined to disappoint the noble Earl, Lord Howe, even when I bring forward government amendments in response to issues that he raised at previous stages of the Bill. Of course, I recognise that there is a great deal of concern about the use of police cells for the detention of mentally ill people. As I said in Committee, I accept that a police station is not an ideal place in which to detain such a person. I also accept that 72 hours may seem to some people to be a long time. It should be borne in mind that that is an upper limit. Recently published emerging evidence from a study being undertaken by the Independent Police Complaints Commission suggests that the average amount of time in police custody under Section 136 is 10 hours and that the majority of detainees leave police custody within 18 hours. That is reassuring, although from this evidence it is clear that some people need to be detained for longer than 24 hours. I well understand why the noble Earl has returned to this matter, but there are some issues of practicality. For example, in the case of a person removed from a public place, it would require the police and local agencies to try to identify an appropriate place of safety other than a police station. If none is available, it would be necessary to convey the person to a police station and to arrange for the person to be examined and interviewed urgently at the police station. If that is not possible, it would be necessary to transfer him to another place of safety and to arrange for him to be interviewed and examined there. It may not be possible to do all that within 24 hours. As I said in Committee, I do not think that imposing statutory restrictions is the way to address the concerns of the noble Earl. The right way forward is to try to limit the use of police stations by facilitating good practice. The Government are allocating a considerable amount of money to the NHS in England to improve the NHS estate and £130 million is being made available this year and next year. That money will help to facilitate an increase in hospital-based places of safety and improvement in existing facilities. Therefore, it will help to reduce reliance on police stations. I also re-emphasise that we are planning to reinforce our approach to encouraging good practice by strengthening the guidance in the new code of practice for England along the lines of the noble Earl's amendment. The current code states that police stations should not generally be used. In the revised version of the code, we intend to stress that police stations should be used only as a last resort; for example, only if nowhere more suitable is immediately available and even then only if such use is compatible with local agreements on the use of places of safety. We also intend to stress in the revised code that assessment should be completed as soon as possible. Of course, we shall consult widely on that. I understand that similar arrangements will be made for the code of practice in Wales. There is clearly more that we can do. The amendments that I have tabled also deal with an issue that was raised in Committee—a very good issue—and we now amend the Bill so that patients can be moved from one place of safety to another. Clearly, it is not appropriate for vulnerable, mentally ill people to have to remain at, say, a police station, so that a doctor and an approved mental health professional can assess and interview when a more suitable setting is available. On monitoring and the views of the Police Federation, my right honourable friend Mrs Rosie Winterton, the Minister responsible, recently met with representatives of the federation. There was a good, useful and constructive discussion. We are not convinced that there is a need to require the Home Secretary to monitor and report on the use of police stations as a place of safety. However, I shall take the more general issue of monitoring back to see what can be done. As the noble Earl will know, we intend to create a new single regulator in England to replace the Mental Health Act Commission, the Healthcare Commission and the Commission for Social Care Inspection. We will want to look at monitoring responsibility. In that context, I certainly undertake to look at the issues that the noble Earl has raised.
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- 21:15
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- Earl HoweConservative
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- My Lords, before the Minister sits down, I should say that I am by no means unappreciative of the government amendment. Nor am I unappreciative of the proposal he just kindly just made, which I welcome. On Question, amendment agreed to. [Amendment No. 69 had been withdrawn from the Marshalled List.] [Amendment No. 69A not moved.]
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Baroness MurphyCrossbench- Quote
- moved Amendment No. 70:
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- Lord Hunt of Kings HeathLabour
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- My Lords, I welcome the amendment of the noble Baroness, Lady Murphy. As she says, although it may not have been used, the fact that the amendment raises the offences seems an important signal. The Government are glad to support it.
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- Baroness MurphyCrossbench
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- My Lords, I am very grateful to the Minister indeed. On Question, amendment agreed to. [Amendment No. 71 not moved.]
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Baroness NeubergerCrossbench- Quote
- moved Amendment No. 71A:
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- Lord Patel of BradfordNon-affiliated
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- My Lords, I am grateful to the noble Baronesses, Lady Neuberger and Lady Barker, for raising this issue following the Joint Committee’s recommendation. I agree with the general thrust of this amendment, and I hope that serious consideration will be given to it. I certainly believe that there should be regulation of the use of seclusion. As the noble Baroness said, the Mental Health Act Commission, of which I am the chairman, called for this in several of its reports, including the most recent, the 11th biennial report. That was published before the abandonment of the draft Bill of 2004, in which the Government, rather to the horror of the Mental Health Act Commission, proposed regulation of a sort using the mechanisms of Part 4 of the Act. The Minister may have read the discussion of seclusion in chapter 4 of the commission’s report, but if not, I hope that he will do so, paying particular attention to the section entitled “The Perils of Medicalisation”. I am pleased that this amendment refers to the management of disturbed behaviour rather than to its treatment. Let us not fall into the trap of assuming that these are simply matters for clinical discretion, but recognise that they engage rather wider issues of keeping order within hospitals. I note that this amendment prescribes the circumstances in which seclusion or other types of serious restraint may be used. I sense that the response from the Minister may be that it could be dangerous to fetter services in such ways, but I hope that such arguments will not close off deeper consideration of how such regulations might be formed. While we must not establish quasi-clinical criteria for the act of isolating a patient from others, it does not seem impossible to me that we could have regulations that set out what seclusion can and cannot be for, rather in the way that Section 62 sets out when certain treatments can and cannot be given. Just as importantly, we need a statutory definition of seclusion that will prevent services claiming never to seclude a patient when all they really do is operate seclusion under some euphemistic term. If we can prevent hospitals euphemising seclusion away, we should certainly require them to keep records of the practice that would be available to monitoring bodies and their own internal auditing procedures. This amendment provides regulatory powers to enable all these things. The Minister’s brief on this amendment no doubt suggests that he should repeat the mantra that these matters are appropriate for a code of practice, not statute. I hope that he will pause before doing so and reflect upon the point raised by the noble Baroness, Lady Neuberger, about the way in which the code’s guidance on seclusion was at the centre of the judicial ruling in Munjaz. That ruling effectively tells services that they can write their own codes of practice on seclusion so long as they do nothing in breach of the European convention. It is a shame that the Department of Health, although nominally the co-sponsor of the code, argued in submissions to the court that services should be free to disregard it. We have not yet finished debating the status of the code and I will not pre-empt that discussion, but I ask the Minister to remember that services already have guidance on seclusion in a code of practice that many of them do not follow, and which some of them openly disregard. Just as the dissenting judgment of the noble and learned Lord, Lord Steyn, in Munjaz warned of a free-for-all, the use of the code in this area has led to something of a Wild West in practice. The Mental Health Act Commission cannot even collect meaningful seclusion data across the high-security sector because hospitals—or rather one in particular, Ashworth Hospital—operate incompatible, or at least incomparable, systems of seclusion. Patients transferred from one hospital to another, not just in the high-security sector, may now find arbitrary differences in how hospital regimes operate seclusion, despite the European convention requirement for transparency and predictability in matters that potentially engage the rights that it establishes. I suggest to the Minister that this is not good enough, and that more stringent regulation is needed.
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- Lord Hunt of Kings HeathLabour
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- My Lords, I am grateful to noble Lords. I certainly do not want to close down the options for discussion and I am sorry if my applause for the code is seen as a mantra. It is important. We have debated—no doubt, later this evening we shall further debate—the code of practice, but the two go very much together. There are very good reasons why some matters are left to the code and are not in legislation or regulations. Essentially, we think it unnecessary and undesirably inflexible to regulate seclusion, restraint and other similar interventions in the way proposed by the amendment. It is true that the amendment leaves the details to regulations, which is certainly preferable to trying to codify rules in primary legislation, but we still foresee difficulties finding sufficiently clear definitions for regulations. Such definitions should not, on the one hand, encroach on what may be thought of as routine clinical interventions, rather than crisis responses. On the other hand, I very much agree that we should not encourage people to use less appropriate techniques to avoid the bureaucracy of the regulations—the risk of the perverse incentive—or because what they believe to be the best in the circumstances is not permitted. There is genuine concern that we may unwittingly restrict staff to a limited range of techniques that do not sufficiently recognise the huge variety of scenarios that they may face. Any kind of restrictive regulation invariably runs the risk of inhibiting new innovative techniques for managing difficult behaviour. We accept that there is variation in the use of seclusion and restraint, not all of which represents genuine differences in need. I have no doubt that there are places where practice can be improved. However, we must be wary of defining what hospital staff may or may not do either as part of routine clinical care or as an immediate response to dangerous situations. It is worth remarking on the issue of violence towards NHS staff. A programme is being broadcast at this very moment about it. We need to recognise the situations in which staff find themselves. We have to pay regard to their interests in these matters. Currently we address such issues through guidance to practitioners in the code of practice. The code currently states that hospital managers should have clear written policies on the use of physical and other forms of restraint. Physical restraint should take place only as a last resort, not routinely. Any restraint should also be reasonable in the circumstances, apply the minimum force necessary to prevent harm to the patient or others, be for only as long as necessary and be sensitive to gender and race issues. In preparing the draft illustrative code of practice, I have remained very aware of the deliberations in the Joint Committee on Human Rights and our evidence to it, which concluded that the most appropriate approach to this practice issue is to provide for it through guidance in the code of practice. That remains our position. In preparing the draft illustrative code of practice to accompany the Bill, we revisited and updated the guidance on seclusion and restraint. It will be further developed in the new code to be issued for consultation. I understand that the Assembly Government intend to make a similar provision in the code of practice for Wales. The draft illustrative code of practice reflects the NIMHE 2004 guidance, the Mental Health Policy Implementation Guide. It also advises that the NICE guidelines are also adhered to. The NICE guidelines address the management of aggression and violence, including restraint. The use of seclusion and restraint is often a clinical judgment. Its use should be informed by detailed professional guidance of the sort to which I have just referred. The code of practice provides that such guidance is brought to the attention of practitioners and service providers. We need to be clear about the observation of the Appellate Committee of this House that the requirement that cogent reasons be shown for any departure from the code sets a high standard that is not easily satisfied. We must be clear about that, although I realise that we will probably discuss this a little later on. Section 120 of the Act already enables the Mental Health Act Commission at any reasonable time to visit and interview any detained patient and to inspect any records relating to the detention or treatment of that patient. I know that there are concerns that young men from some black and minority-ethnic groups are over-represented in the use of seclusion and restraint. I understand those concerns: we all have general concerns about how a group of people is treated in the current services. I understand that the 2006 census will show less emphasis in relation to that figure. I must be careful not to speculate, but one can only hope that some of the current publicity and the advice and guidance are beginning to have an impact on service provision and practice activities in the services. We will keep the operation of the Act under review, and we will look for comprehensive information on how it is used, which will help us to monitor better what is happening. Again, as I said about places of safety, when the new combined regulator for health and social care is formed, we will consider how information on the use of seclusion may be reported to the new regulator. I do not seek to undermine anything that the noble Baroness and the noble Lord have said about this. We simply think that it is better to deal with this in the code.
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- 21:45
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- Baroness NeubergerCrossbench
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- My Lords, I am extremely grateful to the Minister for his reply, although I am not wholly content with it. He is obviously not entirely surprised to hear that, either. Let me say just a few things. First, given the very clear recommendation from the Joint Committee on Human Rights, when it said: “We urge the Government to ensure that, whatever method of regulation is adopted, sufficient safeguards are included on the face of the bill”, it is extraordinary for the Government to say yet again that they think that this is better dealt with in the code of practice. I find that really quite worrying, because to some extent they are simply not listening. However, we have heard about the code of practice and will come to that later. Secondly, I fully accept that the guidance on seclusion is the NICE and the NIMHE guidance. I do not think that anyone has any particular quarrel with that, except that what the Minister said to me about wanting to leave it to clinical judgment has come up time and time again. This is not an area that one would normally expect to leave to clinical judgment, because it has nothing to do with treatment: it is being used simply to protect others from significant harm. That is very different from the normal use of clinical judgment in a treatment decision. This is an important point, which the Minister did not pick up. All noble Lords around the House are very concerned about attacks on NHS staff, but it is precisely because seclusion is used to protect others from significant harm that you want to be very clear about where it should be used—to protect staff and others from harm. Given the lateness of the hour, and having voiced some of my objections to some of what the Minister has said, I beg leave to withdraw the amendment. I shall take this away and consider how we might come back, even at the very latest stage of the Bill—at Third Reading. Amendment, by leave, withdrawn. [Amendment No. 72 not moved.]
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- 21:45
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- Baroness MeacherCrossbench
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- moved Amendment No. 72A:
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- 21:45
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Baroness Royall of BlaisdonLabour- Quote
- My Lords, Amendments Nos. 72A and 72B are similar to amendments that were laid in Committee, and I know that they are supported by the British Association of Social Workers—quite understandably, given the comments just made by the noble Baroness. I am aware that in some parts of the country social workers can experience difficulties in accessing the services that they need in order to safely convey and admit patients. I note the figures cited by the noble Baroness and her graphic examples of problems experienced with ASWs. We fully sympathise with their concerns and understand their frustrations, and I note the dangers. However, we are not convinced that these amendments are the way to improve things, although clearly improvements are needed. The amendments seek to put the onus on trusts to sort out difficulties in co-ordinating the services needed to convey and admit patients safely. I understand that approved social workers feel that they as individuals cannot influence the availability of the services and that a trust as an organisation would have more clout. However, approved mental health professionals should be supported by the local social services authorities on whose behalf they are acting. Indeed, it is often the case now that difficulties are escalated within the local social services authority, and the force of the LSSA is brought to bear on the situation. It is crucial that there are effective local arrangements and good ongoing communication between all the bodies involved in conveying and admitting a patient. Amendment No. 72A would put a requirement in legislation for such arrangements to be in place. However, the Mental Health Act code of practice already says that there should be arrangements between the bodies involved in assessing, conveying and admitting patients to hospital. All the code does is state what is self-evidently the job of local bodies to co-operate with one another to put in place effective local services. They do not need guidance from the Government to tell them what is required. In many parts of the country protocols that are in place are working well, but where that is not the case there is no reason to believe that placing the requirements for protocols in legislation would make it any more likely that those protocols would be effective or adhered to. Organisations at a local level need to consider whether the arrangements that they are already expected to have in place are working properly to protect patients and, of course, to protect their staff. That can be done only at a local level. Changing the legislation is not the way forward. We will consider how the code of practice can be used to emphasise further to local bodies what their obligations are, and naturally we would welcome further comments from noble Lords. In addition, I wonder if the increased emphasis on local area agreements in the local government Bill currently being considered in another place will help to ensure that health services and local social services work more closely together so that there really are more effective local arrangements. In addition, I hope that the implementation of the Mental Health Bill will be an excellent opportunity to remind all local agencies of their obligation to work together. We sympathise with the sentiment behind the amendments, but we believe that these issues are better dealt with through interventions at a local level. I therefore urge the noble Baroness, Lady Meacher, not to press her amendments.
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- 22:00
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- Baroness MeacherCrossbench
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- My Lords, I am obviously disappointed at the Minister’s response. I hope that we can negotiate with the Home Office to improve responsibility for the police arriving at these scenes. It seems to a number of people involved that the police are the key here—if they arrive, the ambulances will arrive. If the police see their responsibility as being available for these emergencies, that will be very helpful.
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- 22:00
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- Baroness Royall of BlaisdonLabour
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- My Lords, I note the noble Baroness’s comments. I undertake to explore that issue further; speaking with local police authorities about being more aware of the need to work more closely with the other agencies is a sensible step forward.
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- 22:00
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- Baroness MeacherCrossbench
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- My Lords, I am most grateful to the Minister for that suggestion. On that basis, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendment No. 72B not moved.]
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- 22:00
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- Lord Patel of BradfordNon-affiliated
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- moved Amendment No. 72C:
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- 22:00
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- Baroness Royall of BlaisdonLabour
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- My Lords, I feel enthused and sparked up. In Committee, we said that we would take away the issue of advocacy and consider the best way to make advocacy services available. That is exactly what we have done, but tonight’s deliberations will inform us more and will add spark to that debate. As I said in the previous debate on advocacy for children and young people, this issue demands careful consideration, so we are continuing to develop our proposals on the subject. We will bring them back when the Bill is considered in the other place. In the mean time, we look forward to discussing those proposals with interested noble Lords, and I would ask the noble Lord to withdraw his amendment.
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- 22:00
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- Lord Patel of BradfordNon-affiliated
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- My Lords, I am really pleased that at this late hour I have managed to bring some spark into the House. I am very grateful for the Minister’s comments and, therefore, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendment No. 72D not moved.]
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- 22:00
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- Lord Hunt of Kings HeathLabour
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- My Lords, my spark has all gone and I beg to move that further consideration on Report be now adjourned. Moved accordingly, and, on Question, Motion agreed to. House adjourned at 10.11 pm.
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