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The Minister addressed that point a moment ago without answering it, or at least, she answered it completely the wrong way. She said that the Government agreed with those concerns, and that that was why tribunals that they had intended to establish under the draft Mental Health Bill of 2004 would have had power to step in after 28 days. This is nothing to do with cost-effectiveness, or with our practical complaints that people were not available to man the tribunals. The principle was that the conditions should be examined after 28 days. Our complaint was that the mechanics would not be practicable. If the principle was right then, why are the Government reverting to a three-month period? That is the question that the Minister has not answered.

In Committee, the Minister said that the system would be too bureaucratic and might involve up to 8,000 more SOAD hours. There would be a big cost and resource implication. Mat Kinton is undertaking further research for the MHAC, which is not yet finished but is soon to be published. We have been given permission to quote from it. Mr. Kinton conducted a survey of the 14,574 patients detained at 31 March 2006, just over a year ago. He was able to examine just over 81 per cent. of them in detail. Working on the Government’s figures, he established that if the three-month rule had been a two-month rule, 3,598 patients, or 30.5 per cent. of the total number admitted to hospital under Mental Health Act powers, could have received a second opinion. That is an additional 337 opinions and an increase in second-opinion activity of slightly over 10 per cent., which amounts to nothing like 8,000 additional SOAD hours.

I believe that the Government’s estimates are woefully wrong. I am surprised that the Minister has not been contacted the MHAC, given the serious
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concerns that it has raised on a number of occasions. The Minister’s figures are wrong; but, more importantly, the principle that someone should not be forced to wait for three months on medication that may not be appropriate—regardless of the physical, let alone the mental effect—is fundamentally wrong.

Our suggestion is not radical; it is a compromise solution—to reduce the period from three months to two months. Many people think that the period should be shorter than that. It is a practical suggestion and, more importantly, it addresses the principle of respecting the wishes of people with mental illness. It makes sure that they are engaged properly in their treatment, rather than potentially cut adrift from having any say in it for three months until a SOAD is appointed. On that basis, I am minded to press our new clause to a Division at the appropriate time, rather than to withdraw it as the Minister requested.


Mr. Kidney: In speaking on advocacy, I should declare an interest. I am honorary president of the Advocacy Services in Staffordshire, or ASIST.

I warmly congratulate the Minister on the work she has done on advocacy between the Committee and Report stages. She gave an assurance in Committee that she would bring this matter back to the House and she has done so; that is welcome. I said in Committee that it was untenable for us not to have a system of advocacy for mental health patients when we have now accepted advocacy for mental capacity cases. The wording of the new clause closely follows the wording on advocates in the Mental Capacity Act 2005, which shows that synergy. My earlier intervention on the Minister was intended to be helpful. I said that there might be common standards, training and systems of maintaining advocates in order to keep the costs of both systems at a reasonable level.

Advocacy is to be welcomed because patients can find it disempowering enough to have to face the panoply of the mental health system when in need of help, but when faced with professionals such as a consultant psychiatrist or a range of people with other mental health expertise—perhaps social workers, too—it can also seem that the balance of power is wrong. The beauty of the advocacy system is that it enables someone to stand shoulder to shoulder with the patient in putting their case. It can enable the patients themselves to say exactly what they want, and if they are unable to do so it enables the advocate to speak up on their behalf and to make sure that their voice is heard in deliberations and planning.

Dr. Ian Gibson (Norwich, North) (Lab): Does my hon. Friend agree that advocacy is not just about helping the patient from a health point of view, but that there might also be legal implications which it is important that somebody present addresses in order to prevent the patient from ending up unprotected in a court situation?

Mr. Kidney: I agree, but as we found in debating and amending Acts such as the original 1983 Act, legal issues can be difficult and complex. The advocates we are talking about are citizens’ advocates rather than lawyers, who are advocates who understand the law.
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Sometimes, an important part of an advocate’s role is to make sure that the legal interests of a patient are presented and studied by an independent lawyer.

I especially welcome the Minister saying that when the advocacy system is in place there will be full information for patients about the availability of the scheme, and full training on advocacy for staff in mental institutions and in the community who provide mental health services so that they can make sure that people receive their entitlements and rights.

This is such an important change from the Bill in its original form that I hope that it will also help us to overcome some of the objections raised in the other place about other parts of the Bill. When we are sure that patients are as protected as possible by a system of advocacy, some of the objections debated in the other place can fall away.

My right hon. Friend the Minister said that she was not minded to agree to amendments to new clause 3 to do with children and advocacy. That is disappointing, and I hope that the Minister will say that she will at least keep the door open for that to happen later.

On another area of law, I chair the all-party group on looked-after children and care leavers, and I know just how vital it is for those vulnerable children to have access to advocacy. They do not yet have universal access—access is provided only in certain specified circumstances—and I want to argue for their having it. Similarly, children who are patients in the mental health system are particularly vulnerable, and I hope that they, too, can have universal access to advocacy.

Dr. Gibson: Does my hon. Friend agree that many of the people who suffer from anorexia and bulimia are often quite young and need support, which has not been forthcoming? We should therefore consider them just as seriously, because this is a somewhat new area of endeavour.

Mr. Kidney: Indeed, and as I explained on Second Reading, a hospital in my constituency specialises in eating disorder cases, and some of the children who attend it are extremely young. In Committee, we debated age-appropriate facilities for children, and learned of a child as young as 10 who was in very inappropriate accommodation when receiving in-patient hospital treatment. So yes, those children can be very young and very vulnerable.

I want to say a little about nearest relatives and carers. Between consideration in Committee and today, my right hon. Friend the Minister and I corresponded on this subject, and I am disappointed at not having made any progress. There is one issue that I would like to bring to the head of my wish list: I want the Minister at least to look again at the definition of a carer. At the moment, we are reliant on the 1983 Act, which says that a carer is somebody who has been caring for five years, which then gets them on to the nearest relative list. If they are living with the patient at the time that such services are required, they can go to the top of that list. However, the position of carers has moved on a long way since 1983. Since then, there has been a Labour Government—since 1997—and we have the country’s first ever national strategy for carers and the first dedicated funding for carers, rather than for the people whom they care for. We have also
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established for the first time an entitlement for a carer to have an assessment of their needs, rather than of the person whom they care for.

So the definition of a carer today is very different from simply being someone who has lived with a person for five years. Of course, many carers do not live with the person whom they care for, even though they are their full-time carer, so I would argue that we still need to look at the definition of carer. I understand why my right hon. Friend the Minister is not attracted to new clause 17, but it does at least bring up to date the definition of a carer, in line with the legislation introduced in 2000, which is the latest to deal with carers.

I turn to my final point on the ability to nominate someone to be the nearest relative. I have read the correspondence that my right hon. Friend sent to me and I accept all the arguments, but I ask whether there is one last option—one quite similar to that given in a briefing that we received from the Law Society. Here, I should declare another interest as a non-practising solicitor. If the person in question could nominate from a closed list, rather than an open one, would that get round the problems associated with the European convention on human rights that my right hon. Friend mentioned? If the closed list could simply be the nearest relative list with an updated definition of a carer included, could not the person in question—when they are not subject to the powers under the 1983 Act—at least nominate somebody from that list in order to bring them to the top of it, rather than somebody who is completely outside that list? That is my last suggestion for the Minister, and I hope that it is of some help.

Sandra Gidley (Romsey) (LD): It would be churlish of me not to welcome the Government new clauses and amendments. As the Minister suspected, amendments (a) to (c) to new clause 3 are an attempt to see whether she can be pushed just a little further. I take on board the points made about resources. Indeed, a briefing from the NHS Confederation, which most Members present today will have received, raises concerns about the resourcing of this service, and points out that patients have to know about its availability. So I take on board the point that we should see how things progress and then potentially go further.

I shall briefly outline why it was important to table the amendments. I am sure that the Minister is aware that a disproportionate number of black and minority ethnic people are sectioned. It is a particular problem for the Afro-Caribbean community, which experiences more instances of over-medication, misdiagnosis and control and restraint. They are more likely to be detained as long-term patients, which increases the need for access to advocates before sectioning. That is the driver behind amendments (a) and (c).

In Committee, the Minister glossed over my comments about a race equality impact assessment for the Bill. It is not enough to assume that all will be treated equally under the Bill, because that does not happen at the moment and there is nothing in the Bill to suggest that it will change matters. If one section of society has different outcomes, that is a problem that
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needs to be addressed in some shape or form and the amendments are an attempt to address it.

There has been a history of misunderstanding and discrimination against black and minority ethnic people, resulting in the death of several Afro-Caribbean service users under the care of the mental health system. The most famous case is that of David “Rocky” Bennett, which was the subject of an independent inquiry by Norfolk, Suffolk and Cambridgeshire health authority. The inquiry’s report made 22 recommendations. The key underpinning theme of those recommendations was that there should be ministerial acknowledgement of the presence of institutional racism in the mental health services and a commitment to eliminate it. It is never pleasant to have to admit something like that, but the figures speak for themselves.

A study has also found that there are circles of fear that stop black people from engaging with services. They do not access help early because they are concerned about what will happen to them. The study found that Afro-Caribbeans were often not treated with respect and the services were not accessible, welcoming, relevant or well integrated with the community. The way in which Afro-Caribbean people enter mental health services is problematic and influences the nature and outcomes of treatment.

Most importantly, different models of description of mental illness and other people’s philosophies or world views are not understood or even acknowledged. That is a double-edged sword, because the flipside is that the concept of culture has been used to attempt to address some of those issues, but it can also divert professionals from looking at the patient as an individual, with their own characteristics, history and needs. Assumptions can be made on the basis of race, and that is wrong.

Those and other findings were supported by the “Inside Outside” report and the “Breaking the Circles of Fear” report. A recent Mental Health Act Commission census also backed them up. The amendments attempt to address some of the problems, because if advocacy is available at the beginning of the process, an appropriate advocate could be found who could ensure fairer treatment.

The Minister was concerned about the overall financial impact of the amendments, but if she is serious about addressing the problems of racism, she could consider a pilot scheme in a relevant area to see whether structured access to advocacy services and greater cultural awareness help to break down some of the barriers and reduce the statistics. I hope that the Minister will look into that—

Dr. Gibson: As the hon. Lady will know, Rocky Bennett was in a certain unit in my constituency. How would advocacy have helped in the situation on that Saturday night?

Sandra Gidley: I do not want to go into individual cases. The example that I cited was not the best example of the effect of a lack of advocacy services at the beginning because there was clearly a mental health problem in that case. I raised that case, however, because of the report that highlighted the problems experienced by many service users. It is fair to say that several Afro-Caribbeans would not be sectioned or subjected to electro-convulsive therapy if there was more understanding of their culture and needs.

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5.15 pm

I will not press amendments (a) and (c) to new clause 3 to a Division because of the wider implications, but I hope that the Minister will take on board the nature of the specific problem and bring something forward to move us in a fairer direction in the longer term.

Amendment (b) to Government new clause 3 would do something similar for children by extending the terms of the measure to make mental health advocacy available for all children who are voluntary patients, rather than just children liable to detention, or for whom ECT is being contemplated. I do not buy into the Minister’s argument about resources because estimates show that the measure would probably affect only 650 children a year, or one in each constituency. The numbers are not high, yet we should provide an extra safeguard for those children. It must be terrifying for a child to be admitted to an in-patient unit, especially, as is frequently the case, if their relationship with their parents has broken down. An advocate would be someone other than a parent, carer or clinician who could not only communicate with the child, but communicate that child’s interests and ensure that there was a right of appeal.

Children can overturn parental responsibility only through a court order, so the system is completely stacked against them. We are talking about only a small number of people, yet they are vulnerable and at a crucial time of their lives, so although the Bill does much to improve conditions for children, I urge the Minister to think again on this matter. Given that I have heard supportive comments from Labour Members, I am minded to press amendment (b) to new clause 3 to a Division.

Lynne Jones (Birmingham, Selly Oak) (Lab): Like everyone who has spoken, I warmly welcome the Government new clauses and amendments and the increased safeguards for vulnerable people that will be introduced through the arrangements for advocacy. The new clause and amendments that I have tabled would improve the arrangements by which the nearest relative could be displaced, if necessary. The Bill contains a measure that allows for that, but it is problematic because it requires a patient to go to court and due to the grounds set out on which a nearest relative may be displaced.

New clause 17 is based on an amendment tabled in Committee by my hon. Friend the Member for Stafford (Mr. Kidney). It would avoid court proceedings by allowing a patient to give an advance directive of the name of the nearest relative. As my right hon. Friend the Minister said, the appointment of the nearest relative is extremely important. However, as my hon. Friend the Member for Stafford pointed out in Committee, there is all too often no nearest relative who is willing to perform that role. If someone suitable is available, it is thus important that it is as easy as possible for a patient to appoint that person as the nearest relative.

My new clause differs somewhat from the original measure tabled by my hon. Friend because I have attempted to address several concerns expressed by the Government. I realise that it would not be appropriate to allow frivolous changes or appointments of the
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nearest relative, so my amendment would confine the appointment or changed appointment as the nearest relative to the carer. As my hon. Friend the Member for Stafford pointed out, a carer is someone who is not living with the patient, but who has their best interests at heart, spends a great deal of time with them and knows their case, and is someone whom the patient can trust.

At various meetings, we have had put to us examples of people who have no contact whatever with their relatives, but who would find the prospect of a court process to displace them somewhat daunting. I am disappointed that the Government cannot find a way to make provision that enables the nearest relative to be changed without going to court, although I am pleased by the Minister’s assurance that she intends to make the system as user friendly as possible. Of course, it is not necessary for the patient to take the action themselves; they can be supported in doing so, or the process can be carried out on their behalf.

Amendments Nos. 104 and 105 are designed to make it possible to seek displacement on broader grounds than the Bill allows. The Joint Committee on Human Rights has criticised the provisions of the Bill and the associated code of practice, saying that they are too narrow to enable the nearest relative to be displaced unless there is some undercurrent of abuse. That important point must be addressed, and I am grateful that the Minister is willing to consider the code of practice and to discuss further whether those concerns can be properly dealt with.

As the relative of someone who has been very ill and undergone the process of sectioning, I am well aware of the concern of nearest relatives that they should not easily be set aside. I know that, at times of crisis, patients can turn against family members—the people who are most concerned about them. I therefore understand the Government’s concerns, but I hope that they will do all they can to address the worry that lies behind new clause 17 and amendments Nos. 104 and 105.

Angela Browning: My name does not often appear on amendments alongside that of the Secretary of State for Health, but I am pleased to support new clause 3.

I intervened to ask the Minister of State about advocates having the right to see patients in private. The right hon. Lady suggested that she was not prepared to put that on a statutory basis, but referred yet again to the code of practice.

Mr. Kidney: Will the hon. Lady give way?

Angela Browning: Let me just finish this point.

When the code of practice is drawn up, it is important that the Government identify, not so much the crises, but what I would describe as the pinch points in the process of dealing with someone who is under a section order or who is detained, including those who might be detained in a police cell under a section 136 order, for example. At such points, it is important that they have access to advocacy.

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