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Amendments Nos. 84 and 85 are a simple attempt to include consultation in the Bill. They aim to make sure that those who are involved or likely to be involved in supporting or caring for patients in the community—but not as professionals—are included in the consultation process. That is particularly important for children, as it
will ensure that they benefit both from the skill of professionals and the informed support of those closest to them.
It is best practice to involve carers, but, over the years, many have complained that they are excluded from the care plan process, which means that the care plan often does not take into account the knowledge and skills of those closest to the patient. Imposing some types of condition on a patient may also have an impact on others living in the same household. From the point of view of the long-term success of the treatment, the provision seems particularly important. In addition, the rights of parents or carers could be affected.
In many cases, patient confidentiality is cited as the reason for not sharing information. That is a strange argument for a blanket refusal to consult, however, as the people denied information are often the very ones who will assist and support the patient. If part of a care plan is to treat a young person at home, it is important that the other people in the household, and possibly the patient, have some understanding of the condition. They do not necessarily have to know all the medical evidence, but there ought to be a process by which their needs can be taken into account.
Amendment No. 86 provides a similar provision for consultation when non-emergency treatment is proposed for a child community patient—a child under 16 who has been assessed as lacking competence to consent to treatment. If a person over 16 lacks capacity, or a person under 16 lacks competence, treatment can be given if certain conditions are met. The amendment provides greater safeguards for child community patients.
The Minister has suggested that for all practical purposes a CTO cannot be put in place for a child under 16 if parents do not consent to the treatment plan and its conditions. The amendment would ensure, however, that the rights of the parents are also enshrined in law, so that there is no ambiguity whatever when a CTO is set up. Parents of a hospitalised child for whom a CTO has been suggested need to understand what their rights are, with regard to saying yes or no to conditions that may be set to allow a young person home after treatment. A CTO for a child under 16, with conditions, places the whole family within the framework of those conditions. Parents should be consulted fully in that respect.
Tim Loughton: The preceding speeches proved to be rather like a series of wind-up speeches. I am sure that the Minister will carry on in the same way on probably the most contentious part of the Bill, which was debated long and hard in another place and in Committee.
The reference by the hon. Member for Hackney, South and Shoreditch (Meg Hillier) to another mental health Bill coming along was rather alarming. We have not had a mental health Bill for 24 years, but if we are not careful a couple are going to come along together—rather like double-decker buses. We are, however, almost at the end of the gestation of this Bill.
The Bill’s provisions on community treatment orders are contentious. I shall talk primarily to amendment No. 96, as my hon. Friend the Member for Tiverton
and Honiton (Angela Browning) skilfully expounded the virtues of new clauses 13 and 14, which we tabled. The amendment goes to the heart of objections about how CTOs have been placed in the Bill. We intend to put the amendment to a vote at the appropriate time.
We welcome the Government’s climbdown on some of the most objectionable aspects of CTOs, especially on proposed new section 17B(3)(e), which contains the criteria whereby those under a CTO could be directed to “abstain from particular conduct.” That would have been one of the most coercive pieces of mental health legislation in any jurisdiction. It would also have been wholly counterproductive and unworkable. I am glad that the Minister has seen that and withdrawn that part of the clause.
I am also pleased, to an extent, that the Minister has sought to rewrite the conditions of CTOs so that they must have a medical treatment benefit. That is welcome, but it does not go far enough, so we have tabled amendment No. 96, which is a reworking of the amendment that received overwhelming support across all parties in another place. We have listened to the debate and to some of the objections that the Minister and her colleagues made, and have adapted the amendment, we think, to make it more acceptable in dealing with the problems that she flagged up.
We do not want to dismiss CTOs out of hand, because they have a place. I was a member of the pre-legislative scrutiny Committee, which considered CTOs in great detail. It said that they have a place, but that they should be used for a closely defined set of “revolving door patients”, as they are called, in closely defined circumstances. We have taken that line all along. However, the definitions that the Government have left in the clause are still far too broad, will capture too many people, leave too many unanswered questions, and are too open-ended. The amendment defines the criteria for CTOs in limited circumstances, which are not to include criminal proceedings, that are deemed to be necessary to protect the public, which we all agree with, and to protect the person, him or herself. That meets the Minister’s concern that we were ignoring the plight of those with suicidal tendencies. That was never the intention. In any case, they are covered by other parts of the Bill.
A concern was also expressed in another place that we could end up issuing a lot more CTOs to people who could be deemed to be suicidal. That would overload the system and many more people would be under CTOs, with limited, and certainly questionable, benefit. We have responded to what the Minister said and have added to the definitions where it is necessary to protect somebody.
We have also adapted part of the amendment so that a person may have a CTO imposed on them
“if he has refused to accept medical treatment for a mental disorder”
in the previous five years—effectively, somebody who has form. The second time that he comes under compulsion in the system, the responsible clinician may decide that a CTO would be appropriate.
We believe that there are good grounds for the five-year period. The wording is based on the New
South Wales Mental Health Act 1990. Australia is one of the countries that operate a form of CTOs. There has recently been an extensive review of the Act, focusing particularly on CTOs, and there was no push to change the wording in the new Bill published last week. What we are suggesting has not been conjured up out of the air; it has precedents in parts of the world with experience of CTOs that are very different from the coercive variety that the Government are trying to introduce.
Our second criterion is that a CTO should be permissible when refusal of medical treatment has led to a significant relapse justifying a compulsory admission, whether or not an admission subsequently took place. The Minister suggested that someone might not have been admitted despite qualifying for admission, and that in such circumstances there would not be grounds for a CTO. Our view is that if compulsory admission was justified, that should count towards a CTO. The final criterion is for subsequent medical treatment to have alleviated the patient’s condition.
We have thought a great deal about how CTO criteria can be honed to ensure that they affect a closely defined set of people in a closely defined set of circumstances and take account of many of the potential loopholes identified by the Minister, although I believe that most of her suggestions were unjustified. There is no empirical evidence for the efficacy of CTOs where they exist overseas. They exist in some 52 jurisdictions in Australia, New Zealand, Canada, the United States, Scotland and Israel. In 51 of those jurisdictions the scope is narrower than that of our own law: the definitions are narrower—as is the case in New South Wales—the criteria are narrower, or both. In North America, for example, the scope is substantially narrower. Typically in the United States, imminent serious harm to self or others is required before the powers can be used.
The long-awaited Churchill report, which the Government commissioned from the Institute of Psychiatry and were then reluctant to publish until the House of Lords had finished its deliberations, followed examination of no fewer than 72 reviews of the workings of CTOs in those six countries. It is the most comprehensive research ever conducted on CTOs. The first key point is that
“It is not possible to state whether community treatments orders...are beneficial or harmful to patients.”
The Government have been proceeding with a new measure, pioneering new ground affecting new classes of patients, without being able to provide evidence that this arrangement works anywhere in the world where there is an equivalent system. On that basis, it is surely incumbent on them to make the merits of their case categorically and without doubt. We believe that they have failed to do that, which is why we have been keen to ensure that if CTOs are to be used, the circumstances are defined very narrowly. We need to know exactly who will be affected by them, and exactly how people get into and out of them. I shall say more about that when dealing with another amendment in this group. We support the principle of CTOs, but want them to work justifiably in practice. We want a restricted regime.
According to one body of thought—this is not scaremongering, as some have suggested—CTOs could
be counterproductive. That is clear from some of the criteria in briefings received by all Members of the Committee. They state that there is a potential for harm to patients and to service provision for voluntary patients, which should not be discounted, and that
“CTOs interfere with a person’s Article 8(1) rights to private and family life and need to be proportionate under Article 8(2). CTOs increase the numbers of people under compulsion. This brings bureaucratic burdens and adds to the public expenditure.”
Given the comments we have heard about the resourcing of mental health services, there is a genuine fear that CTOs could eat up a substantial and disproportionate part of the mental health budget, to the detriment of other people who require the system on other levels.
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The briefing goes on to state that
“In the ‘blame’ culture in which mental health professionals work there is a strong incentive to use extra coercive powers even where they might not be needed or desirable”,
on the basis that if somebody who could have been subjected to a CTO subsequently goes out and commits an atrocity, the flak will hit the professional concerned and he will be asked, “Why wasn’t that person put under a CTO? It is available.”
“There is no enthusiasm for the Government’s proposals from any other professional group and they are feared by service users.”
The hon. Member for Hackney, South and Shoreditch said that the Royal College of Nursing was in favour of CTOs. It is not. The RCN has questioned some of the criteria, but it is not a great advocate and proponent of CTOs. It and members of the Mental Health Alliance base their position primarily on the responsible clinician criteria, not on CTOs. Regardless of whether there are 75 or 80 members of the MHA, the vast majority of professionals, mental health charities, service users and others still have serious reservations about community treatment orders.
Meg Hillier: It is my good fortune that I have in front of me the question MH 54 that was submitted to the Committee. It is entitled “Further Memorandum submitted by the Royal College of Nursing”. It says that
“the RCN is not supportive of the Lords amendment that requires at least 2 in-patient admissions prior to commencement of compulsory treatment.”
Under the subheading “Criteria for Compulsion”, it adds:
“The RCN is clear that any treatment must be of therapeutic benefit to the individual or prevent deterioration of his/her condition.”
I am sure no Member would disagree with that. That is what the RCN says; perhaps I should have quoted it in my speech, but I have done so now.
Tim Loughton: That is not a ringing endorsement of CTOs, nor does it endorse the Government position.
I do not want us to return to the situation that arose in Committee, when the Minister read out a brief that she had received but which no one else had, and it
turned out to be a rather interesting misinterpretation of the position of certain groups. The fact is that she has been unable to produce any ringing endorsement of CTOs from any members of the MHA or any respected professional body, and neither has she been able to cite any reviews conducted anywhere else in the world that have found that they are efficacious.
Professor Thorneycroft of the Institute of Psychiatry was one of the co-authors of the Churchill report. He said:
“There are real risks not just of the unamended Bill having neutral effects but causing actual harm. The key such areas of harm, would be increased treatment avoidance by people with mental health problems, perpetuation, at least, of current disparities with respect to people from black and ethnic minorities who, as you know, are much more likely to be detained, and huge transaction costs from the implementation of CTOs. Without the evidence that CTOs work, not only would the money be ill-spent, but the opportunity to invest the relevant funds wisely in effective services would be lost.”
We are all greatly concerned about the impact on black and minority ethnic communities. The hon. Member for Hackney, South and Shoreditch has greater experience of that than many of us because of the particular problems in her constituency among the BME community. A recent letter from the director of policy and public sector of the Commission for Racial Equality does not pull its punches. He says that the concerns it has
“primarily relate to the widening of the definition of ‘mental illness’, the impact of supervised Community Treatment Orders and the role of Approved Mental Health Professionals. It is our view that in each instance there is the potential for negative impact”
for mental health users from different ethnic minority communities. Interestingly, he also mentions in that letter the Minister’s selective use of available research. We have certainly seen instances of that.
My hon. Friend the Member for Tiverton and Honiton mentioned existing section 25A powers and section 17 supervised discharge powers. Section 17 leave of absence powers allow a compulsory patient to leave hospital and live back in the community, while still being subject to the powers of the Act. A section 17 patient can be recalled any time a clinician wishes, without the need for formal re-sectioning and the imposition of compulsory treatment. The provision is widely used. As the King’s Fund said, this raises the question of whether a better understanding of section 17 powers might negate the need for supervised community treatment. So the point is that many existing powers are not being used. We should be investigating why they are not being used first, before bringing in a whole raft of new powers that are potentially very off-putting to people coming to the mental health service.
Angela Browning: My hon. Friend was present when I asked about the application of section 25A orders. If it has been the case for many years that the police do not co-operate with them, one would have thought that an inquiry into the matter would have been undertaken. However, the problem seems simply to have fallen on deaf ears.
Tim Loughton:
That is right, and at no stage have we had an explanation of why these orders are not working as they should, and as they can do under the powers already granted. They have been dismissed with
the observation, “Oh well—these things aren’t used. The clinicians don’t like them.” Why not? Surely we need to find out why the existing powers for professionals are not being used properly and are not working as they should, before the Government introduce new proposals for which there is no empirical evidence that they would be any better, let alone that they would work at all.
Meg Hillier: I thank the hon. Gentleman for being generous in giving way again. On speaking to consultant psychiatrists about the powers of release under compulsion, they made it clear that that point was reached through successive instances of case law and through pushing at the edges of what is possible within the current law. The two main psychiatrists to whom I spoke, and others, expressed the view that putting such a provision in the new Bill will make it clearer and make it easier for clinicians to use it; it would also make the situation for patients, including their rights, clearer. Perhaps that goes some way toward answering the hon. Gentleman’s question.
Tim Loughton: If there was a very real need to achieve what these measures are trying to achieve, there would have been greater pressure to make the existing laws work before going down a new, untried and untested route.
There is a very real fear, which has also been raised, regarding the number of people who will be covered by these provisions. The Bill will inevitably lead to an increase in the use of compulsory powers, thus exacerbating a trend that was not anticipated back in 1983. By definition, those on CTOs cannot be detained in hospital—they are a different group. The Government assume that in the first year, 2 per cent. of detained section 3 patients in England and Wales might be discharged as CTOs. However, if the experience of Scotland is replicated—the point that my hon. Friend the Member for Tiverton and Honiton may have been getting at—whereby in the first six months, 23 per cent. of all hospital-based orders were varied upon patient discharge to a CTO, this will be a significant underestimate.
Dr. Doug Naysmith (Bristol, North-West) (Lab/Co-op): I thank the hon. Gentleman for giving way; he is being very generous. I rise to back up what my hon. Friend the Member for Hackney, South and Shoreditch (Meg Hillier) said earlier. The existing powers do not enable us properly to do what we are doing through community treatment orders. They are being pushed to their limits, and many psychiatrists—I have discussed this issue on more than one occasion with psychiatrists—know that they are not really intended for the purpose that they are using them for. CTOs will give them that tool and that power, which will be used sparingly by professionals to do something that they know may well help them to treat their patients better.
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