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4.30 pm

In some of the earlier discussions on this Bill, and on previous Bills, we talked about nominated representatives, but carers groups expressed concerns particularly about the displacement of a nearest relative, which could have an effect on carers that many of us know all too well. When a person becomes extremely ill and feels that the nearest relative has the power to block detention or to discharge, it becomes too easy for that person to think that that is precisely what they should be doing. That can put many people in a difficult position. We need to realise that this is a sensitive issue.

Chris Bryant (Rhondda) (Lab): I hope that the Minister realises that the issue is also very sensitive in the other direction. Many “revolving-door” patients of mental health institutions—that is not a very nice term, but it is one that we grew used to in Committee—sometimes feel that they want to change their nearest relative without having to go to the court and give lengthy and complex arguments why they should be able to do so. I hope that the Minister understands that, too.

Ms Winterton: Of course I understand that, and I know that my hon. Friend is concerned about this particular issue. As I said, I examined it very closely and asked my officials to see whether there was a way of trying to accommodate that development. Let me set out some of the reasons why we decided that there was a real difficulty with such a provision.

If we allowed an automatic right to appoint the nearest relative in advance, to comply with the European convention on human rights it would be necessary to set up a system by which nominations could be ratified by an independent process with a suitable mechanism for appealing decisions. There is no existing body that could do that; we would have to set up a new body, whereas at the moment we take such issues to the county courts. We would still need a process by which to make that happen. For example, we would need to be able to allow a nearest relative who was being displaced to appeal if they felt that it was the wrong approach.

I understand the argument that it would be possible for someone to nominate a person in advance when they were not subject to the legislation—that is, when they were not in a detained situation—in anticipation of being detained, but for ECHR compliance it would be difficult to have one system for people who were not detained and a completely different system, under which people had no access to that right, when they were being detained. Restricting the provisions to carers alone would also have particular problems.

Amendment No. 105 would add another ground on which applications could be made to displace the nearest relative—

and would also amend ground (e) in clause 23(5). I understand the concerns expressed about the Bill’s new
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ground of being “not suitable”. For the first time, patients can apply on those grounds and say that they believe that their current nearest relative is not suitable. Concerns have been expressed about whether the provision would cover situations where patients have no real relationship with their nearest relative. Although it is important that the courts look at each case on its merits, we intend the idea of unsuitability to cover situations where there is no effective relationship between the patient and their nearest relative, or where the relationship has broken down irretrievably.

Given the other changes that we are making, we believe that our proposals cover some of the problems highlighted by my hon. Friend the Member for Birmingham, Selly Oak in amendments Nos. 104 and 105. We shall continue to hold consultations about the code of practice and I am happy to include my hon. Friend in them, as I know she is particularly concerned.

Angela Browning: Will the right hon. Lady give way?

Ms Winterton: I will in a second.

The changes we are making to the Bill give patients a new right to apply to the court for displacement. They will then be free to nominate anyone they want as their replacement nearest relative. As long as the court finds that person suitable and they are willing to act, they will be appointed. As well as that new right, we have provided that the involvement of carers and others with the patient must be addressed as part of the fundamental principles. That meets the fear that people might be excluded. Based on the principles, the code will make it absolutely clear that the nearest relative is not meant to replace the patient’s next of kin, so their appointment does not prevent other people nominated by the patient from being contacted or appropriately involved in decisions about care and treatment.

The Mental Health Act 1983 provides that hospital managers have a duty to advise patients of their rights, including providing all patients with information about how to apply to the county court. I think that my hon. Friend the Member for Birmingham, Selly Oak, and some members of the Committee, were concerned that people would have to go through a cumbersome process, so we shall ensure that patients are advised of their rights and training is given to ensure that those who inform and advise patients understand the new rights properly. In our meetings with the new mental health coalition, concerns were raised about the provisions, so we have looked at matters closely and considered production of a user-friendly guide to applying to the county court.

New clause 15 relates to the three-month rule under section 58 of the Mental Health Act 1983, and would reduce to two months the period after which the section applies. The section requires that if a patient refuses consent, or cannot give consent, a SOAD—second opinion appointed doctor—should certify that the treatment is appropriate and should be given. My noble friend Lord Hunt said in the other place, and I reiterated in Committee, that we continue to believe that the three-month period remains appropriate. The 1983 Act contains a power, in section 58(2), to reduce the period by order, so we can already go forward on
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that basis. However, we feel it would be more appropriate to do so after consultation, so that we can proceed based on evidence, and at a manageable and sustainable pace. At this stage, we do not think it right to change that existing power without undertaking proper consultation and without ensuring that we can deliver on it.

Tim Loughton (East Worthing and Shoreham) (Con): To pre-empt the new clause that I shall propose in a minute, may I ask the Minister: has not the power to vary the term been in the Act since 1983? The Government said that they would look at it, but nothing has been done for 24 years. Why is the Minister so convinced that the three-month term remains appropriate? She has not made the case.

Ms Winterton: There is no evidence to support the proposition that the period is too long. Of course, I am aware of comments made by the Mental Health Act Commission and the Joint Committee on Human Rights, but those opinions do not constitute evidence that three months is not the most appropriate period for the SOAD to assess a patient’s medication for the first time and, with the approved clinician in charge of treatment, to identify whether changes should be made to the ongoing treatment plan. As I said in Committee, the High Court has recently refused leave for a judicial review of the compatibility of the three-month period with the European convention on human rights, so it is not outside the ECHR. We do not believe that there is evidence for changing the period, and that is why we do not accept the need to do so.

Most of all, the power exists already, and we would use it only after proper consultation with clinicians and others to decide whether it was an appropriate time to use it. Otherwise, it could become a completely unmanageable and unsustainable change.

Tim Loughton Will the Minister give way?

Ms Winterton: I will give way to the hon. Gentleman, but I am sure that we will hear his arguments in full before too long.

Tim Loughton: Absolutely, and I shall try to make them brief.

If the Minister is to be consistent, why was it appropriate in the 2004 draft Bill to set up the tribunal system, which has now been dropped, which would have reviewed the case after not three months or two months, but 28 days?

Ms Winterton: As the hon. Gentleman knows, a number of changes were suggested in the draft Bill, but it was rather heavily criticised by the pre-legislative scrutiny Committee, of which he was a member, for being lengthy and complex, and for making many commitments that would involve financial considerations that could not necessarily have been delivered. We responded to many of the Committee’s points by introducing a short amending Bill to amend the 1983 Act.

If the hon. Gentleman is happy to enter such a commitment, involving a number of changes and commitments, both managerial and financial, I am sure that his Front Bench will be behind him. However, I
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urge him, when talking to his shadow Chancellor and the rest of the gang, to make it clear what such a commitment would mean. I also urge him to ensure that he is absolutely convinced that the right evidence exists to make such a commitment. We do not believe that it does.

John Bercow (Buckingham) (Con): I apologise to the right hon. Lady that I was not here for the start of her remarks. I have no wish to be curmudgeonly or uncharitable, but I am conscious that new clause 3(2) and (7) refer to the order-making power and the different regulations that will flow from that. Can the right hon. Lady assure me that we will have sight of at least a draft of the intended regulations before the ultimate passage of the Bill? Otherwise, with the best will in the world, we are being asked to opt for, and to be content with, a pig in a poke. We need to see the detail before we vote for the legislation.

Ms Winterton: I am astonished that the hon. Gentleman refers to our Bill, which has been through such distinguished discussions, as a pig in a poke. I am sure that his Front Bench will have something stern to say about that. I hope that I can reassure him that we will continue to consult fully on the Bill, particularly on some of the regulation-making powers, not only through the procedures of the House but with clinicians and others who have shown an interest. We are anxious that the implementation be effective, so we will continue to discuss that.

4.45 pm

I stress that the advocacy amendments were tabled by the Government very much in response to points made in the other place, in Committee and by a number of organisations about this important issue. I am glad that we have been able to debate those as part of the first group of amendments, and I urge the House to support them.

I ask the hon. Member for Romsey not to press her amendments, because it is important that we consider where our resources are best used, and her proposals would not be practical. My hon. Friend the Member for Birmingham, Selly Oak is right to raise the issues that she does, as they are important, but to try to make some of the changes proposed would involve real problems. I undertake, however, to consider some of the issues in relation to the code of practice, and I hope to address the concerns raised. I urge the hon. Member for East Worthing and Shoreham (Tim Loughton) to withdraw his new clause, for the reasons that I have outlined.

Tim Loughton: I want to comment on two aspects of this group. First, I want to pose some questions to the Minister about advocacy. Clearly, that part of the Bill is completely new. It is a welcome new addition, but it is a reappearance, because advocacy services were promised by the Government in the 2004 draft. That was very much welcomed by the pre-legislative scrutiny Committee, which raised practical questions with the Minister about it. She has now included the provision, but it could have been included in the first place, which would have enabled the Committee to consider the finer print, and saved us further debate here.

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Advocacy is essential in three main areas: to ensure a statutory right to an independent mental health advocate for all patients subject to compulsory powers; to make patients aware of that right, which the Minister has touched on; and to ensure, as my hon. Friend the Member for Tiverton and Honiton (Angela Browning) pointed out, that patients have a right to meet their advocate in private. Those are fundamental human rights that should be made available as part of the service.

The advocates will be essential, providing support to vulnerable people in exercising their rights to appeal against decisions made for their treatment or confinement: for example, as a way of communicating their interests when they may lack capacity to do so for themselves. That service should be provided, particularly for the most vulnerable patients, and prioritised at the point of crisis. The issue of the availability of culturally competent advocacy has also been raised. In particular, the black and minority ethnic mental health communities have pointed to the importance of suitable advocacy for their members.

The pre-legislative scrutiny Committee questioned the Minister’s estimated costings. The regulatory impact assessment estimated the whole-time equivalent of 140 advocates at a cost of approximately £5 million. We seriously questioned whether the Minister had made a very conservative and inadequate estimate. We need to be convinced that the service will be workable, viable and sustainable, not just a token effort to make available a few—but not nearly enough—advocates. Has the Minister reviewed the costings?

Mr. Kidney: I raised the issue of common advocacy standards, training and arrangements with independent mental capacity advocates because I hoped that that would enable us to ensure that the costs were proportionate and affordable.

Tim Loughton: The hon. Gentleman has raised that issue before, and has been a big advocate of advocates for some time. The point he makes is right. It also touches on how the advocates should be overseen and quality-controlled. Again, the pre-legislative scrutiny Committee suggested that the Mental Health Act Commission should be engaged to set the standard for the advocates. If we are to have advocates, we need to ensure that they know what they are doing, and are of a sufficient standard to do what can be a technical job dealing with technical parts of the law, as all of us who have been involved with the Bill for some years, and on the Committee for the past few weeks, know.

What has been learned from the Mental Capacity Act 2005 about the use of advocates? I know, from when the Minister and I discussed a statutory instrument to extend the pilot for advocates provided under that Act, that they have gone down well. At that time I raised the great inconsistency: if they worked well for people covered by that Act, why on earth were we not having them in this legislation—as we now are? I should like to hear some comments on that. We support what the Government are introducing, and merely question whether the measure is sufficiently resourced and structured for it to be as successful as we all want it to be. However, I certainly commend the Government for introducing it.

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The Minister pre-empted some of my comments on new clause 15, although she did not answer my questions about it, which I fear was also the case when we raised the subject in Committee. This is important because it is all about respecting the wishes of vulnerable patients and considering the effect of treatment on them, giving them an opportunity to engage in their treatment, and ensuring that there are thorough checks and balances so that people with serious medical conditions get the right medical treatment. Given the serious effects of medication and the possibility of patients being given too high a dose without their consent, even despite their active opposition to medication, we must ensure that we get it right.

As the Minister said, the new clause would amend section 58 of the Mental Health Act 1983 by reducing from three months to two the time before a second medical opinion is required for medication. The Joint Committee on Human Rights—its Chairman is not in the Chamber, but I am sure that he will be joining our deliberations because he has tabled later amendments—proposed that the time should be reduced from three months to one. We are proposing a compromise, as we did in Committee, to reduce it from three months to two months in stages. The Joint Committee had serious concerns, which again the Minister has not allayed.

The second opinion appointed doctor will assess types of medication, the doses of medication and the combination of different medications. We are talking about powerful chemical cocktails. They have the capacity to bring about serious side effects, such as obesity, diabetes, impotence and movement disorders. It is essential that we take the patient’s feelings into account and ensure that we have good practice.

We also made the case in Committee that patients in that condition should be subject to more regular physical health checks for their own benefit, simply because of the physical effects that many of the powerful drugs have on them. We are joined in that request by the Mental Health Act Commission, which has raised on several occasions, and in at least two of its reports, its concerns about how the period of three months works in practice. In its last biennial report, for 2003-05, it said:

It is not good for patients’ therapy or recovery to feel excluded in that way.

The MHAC says that when visiting hospitals it has found that medical treatment is a key issue for patients, and it often receives complaints about it. In its most recent report it listed complaints about, for instance,

As the Minister knows, a patient’s diagnosis is not straightforward and may change several times over a
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period of detention. We think that three months of being treated without consent, or with a lack of capacity to consent to treatments that may be causing harm, is simply too long. In 2004-05, 18 per cent. of patients’ plans were changed as a result of SOAD intervention, but as the MHAC reported, that is not an accurate indicator of the importance of the role.

There is an extra incentive for doctors to get it right. As the MHAC says,

—“RMO” stands for “registered medical officer—

The Minister has already taken up my point that the 1983 Act provides a power, under order, to vary the time. We have had 24 years in which to do that, but it has not been done. The MHAC says

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