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The Government have always said that the decision to renew a patient’s detention should involve the multidisciplinary team of professionals concerned with the patient’s care. The legislation already requires that, before furnishing a renewal report, a patient’s responsible clinician has to consult at least one other person on the multidisciplinary team. On Monday, the noble Baroness Murphy laid an amendment whereby the responsible clinician has to secure the agreement of a person who
must be of a different profession from his own. That provision would apply to all responsible clinicians of whatever professional background.
We considered that amendment carefully and we believe that this approach provides a sensible solution. The approach is compatible with multidisciplinary assessment and has the renewal decision made by professionals who actually know the patient. It is for the responsible clinician to decide whether their patient’s detention should be renewed, but it is not unreasonable to expect that they have formal support from at least one other member of the multidisciplinary team.
Let me deal now with the Lords amendments on supervised community treatment. The introduction of SCT is one of the most important features of the Bill. It is about allowing people with serious mental health problems to be cared for in the community when appropriate by having the right systems in place to help to avoid deterioration in their condition and thereby to protect them and others from harm.
Both here and in the other place, SCT has been a source of heated and considerable debate. While we agree that there must be safeguards to ensure that people are not inappropriately put or kept on SCT, we are clear that the criteria must not be so restrictive that people who might benefit from its use are denied it. In particular, we could not accept the requirement that a patient should be ill enough to require two detentions prior to its use, because SCT might well help to prevent from relapse some patients who have been detained only once. We cannot accept a situation whereby clinicians and families have to stand by and watch a patient discharged from hospital relapse before SCT becomes an option for them. Delays in treatment inevitably worsen prognosis in the longer term.
The Government are happy, however, to accept the Lords amendments that make clear the factors that clinicians should consider when making a community treatment order. The responsible clinician, in assessing the appropriateness or otherwise of SCT, must consider the risk of deterioration and, in so doing, must reflect on the patient’s history.
It has been a long road to this stage of the Bill, and I should like to pay tribute to everyone who has made it all possible. I should also like to make it clear that we have much work ahead to ensure that we get the secondary legislation, codes of practice and implementation right. We want to work with all interested stakeholders in a genuinely authentic partnership. In spite of past disagreements, we have the same aim as those who have debated every step of the legislation with us: the timely and effective treatment of all who need that treatment. To realise that goal, we need to work together in the interests of patients, their families and carers, the professionals involved and the entire community.
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Tim Loughton (East Worthing and Shoreham) (Con):
Well, here we are again, and I hope that this will be the last time. I welcome the Minister to his new mental health brief. He is the last man standing in the Department of Health Front-Bench team, and he has joined one of the most challenging pieces of legislation ever to go through his Department at the very last corner. He has done well on his timing there. I should also like to pay
tribute to his predecessor, the right hon. Member for Doncaster, Central (Ms Winterton), who was with the Bill almost as long as I have been with it, and to my colleague in the House of Lords, the noble Earl Howe, who has an equally longstanding association with the Bill and with the whole issue of mental health.
The fact that we are considering amendments that were agreed by all sides in the Lords shows that the Opposition were right to say on Second Reading and on Report that although a lot of progress had been made—we welcomed the amendments that the Government agreed to on youth-appropriate treatment, the treatability test and advocacy—there was a little further to go. The Lords have demonstrated that there were further concessions to be wrung out of the Government, so we were right not to give the Bill our full endorsement at that stage. We can now scrutinise these further amendments. This has been a worthwhile, if elongated, exercise over what now amounts to about eight years.
We still have doubts as to whether the amendments to which the Government have agreed go far enough. We would like to have seen the impaired decision making amendments that were placed in the Bill in the Lords retained. To quote my noble Friend, Earl Howe:
“To have acknowledged in law that there is a place for the wishes and feelings of patients who are capable of making their own choices would have been a profoundly far-sighted and beneficial change.”—[ Official Report, House of Lords, 2 July 2004; Vol. 693, c. 826.]
I welcome the Minister’s opening comment that one of his missions in his new brief was to root out stigma, but we believe that the provisions on impaired decision making might have played an important part in achieving that.
Mr. Boswell: Does my hon. Friend agree that it is an essential and important principle that we should not discriminate, that we should treat people fairly, and that we should not impose conditions on them unless there is a manifest need to do so? That has been the principle behind mental health legislation as our culture and knowledge have evolved over more than a century. We have made some progress in taking this forward, but perhaps not quite enough.
Tim Loughton: I completely agree with my hon. Friend. Those who want to see mental health being dealt with on a level playing field alongside any other physical health matters think that the Bill could have gone further towards achieving that. Before you rule me out of order, Madam Deputy Speaker, that brings me to the first of the amendments and the issue of exclusions—I hope that I got away with that one.
We have had a long-running debate on the exclusions that we think should be added to the Bill. The matters that particularly exercised us, and the Lords, related to religious, cultural and political beliefs. The amendment that was proposed in the upper House by Baroness Barker mentions
“respect for diversity generally including, in particular, diversity of religion, culture and sexual orientation (within the meaning of section 35 of the Equality Act 2006)”.
It is useful that that reference has now been placed in the Bill, because we do not have principles set out in the Bill, which we believe to be a weakness.
We challenge the Government over whether exclusions could be incorporated in the Bill, as they were in the 1983 Act. Indeed, exclusions stronger and more precise
than those now being proposed have worked perfectly well in New South Wales, Victoria, New Zealand and, most recently, Scotland and have not, as the Minister’s predecessor warned, been the subject of legal challenges. Exclusions in the 1983 Act have been subject to only four legal challenges. We therefore believe that further tightening of exclusions would be a correct and appropriate counterbalance to the Bill’s widening of the definitions of mental illness and its absence of principles.
Concern remains most markedly about the impact on the black and minority ethnic community. The most recent submissions of the Commission for Racial Equality challenge the Government’s race equality impact assessment, describing it as
“at best flawed and at worst highly misleading. The Race Equality Impact Assessment cannot be taken as an accurate indication that the provisions of the Bill will not adversely impact on particular ethnic groups when the legislation is implemented.”
Given the apparent absence of rigorous internal consideration of the impact of the proposals prior to the introduction of race equality impact assessments, it would be useful if the Minister said how the Government are monitoring the impact of the Bill’s watered-down exclusions on the BME community. There is no need to repeat the figures: we are all aware of the disproportionate number of members of the BME community, especially black African men, who are sectioned and subject to restraint and powerful drugs in hospital. I should be grateful if the Minister gave some undertakings on that.
Mr. Boswell: Is my hon. Friend concerned about the possibility of community treatment orders being applied disproportionately to certain groups in society, rather than being applied evenly?
Tim Loughton: My hon. Friend is absolutely right, and I shall deal with that in a minute. The BME community, and certain parts of it, seem to be affected disproportionately by the Bill’s provisions on compulsory treatment, so we need more research to understand that and see how it can be overcome.
We believe that the criteria for renewing a sectioning order should be no less rigorous than the Bill’s criteria on the initial issuing of an order—it is as important for a patient as the initial detention. We therefore welcome the amendments proposing that two clinicians be involved in a patient’s treatment. We are still concerned, however, about the medical expertise of the professionals issuing renewals notices. As we said in Committee and on Report, we do not want to introduce some form of hierarchy, but we do not understand why the Government have introduced inconsistencies between the original section and the renewal, and the renewal and the provisions of the Mental Capacity Act 2005. Those inconsistencies could give rise to future problems.
We have another concern about these amendments. Which of the professionals now tasked with providing the renewal order do the Government envisage will give the objective medical expertise on mental disorder that has been determined by the European Court of Human Rights? The Minister will know that we have serious qualms about how the legislation as previously framed, and even as amended by the Lords amendments, will fare under ECHR legislation.
We are also concerned about the fact that the primary professional now responsible could get his or her colleague in the multidisciplinary team simply to rubber-stamp the decision on a renewal of detention.
We need to ensure that the second person reaches a separate and independent decision. I would like some further clarification, and guarantees from the Minister that that is what the Government envisage. Without that, the role of the second professional, and the assurances provided by having a second professional as part of the process, are rather worthless. There must be a proper, independent and rigorous check.
I turn to community treatment orders and the amendments tabled in the name of Lord Patel of Bradford in another place, which are supported by my colleague the noble Lord Howe and Cross Benchers and Liberal Democrats. We welcome the changes that were made on Report to CTOs. We have never been against the principle of CTOs, but because they are very powerful devices, we want them to be applied to a closely defined group of persons—real revolving-door patients—in closely defined circumstances as laid down by the pre-legislative scrutiny committee, of which I was a member.
We were therefore particularly keen on and welcomed the change to proposed new section 17 B (3)(e), which the Minister will have at the tip of his tongue. It added a very coercive measure to the exercise of CTOs:
“a condition that the patient abstain from particular conduct.”
That gave rise to CTOs being dubbed psychiatric ASBOs. The Government dropped that, which was welcome. The new condition is that CTOs must relate to what is necessary for beneficial medical treatment, but what constitutes medical treatment is still a broad definition within the Bill. It is also a shame that an end-date was not set on CTOs. Why does the Minister still not think that appropriate? We should consider the lobster-pot scenario that Professor Genevra Richardson described many years ago in her expert committee. We can easily see how people can now be subject to CTOs and other parts of sectioning. It is difficult to see how they can get out of that system, which is why we propose a three-year cap on the operation of the initial CTOs, and a right of appeal against the conditions attached to them.
If a CTO involves giving treatment that is harmful to a patient—for example, a drug that has severe side-effects on that patient, and which he would prefer not to take—in whose interests are we actually acting? I should be grateful if the Minister commented on that. In the debate in the Lords on Monday, his colleague Lord Hunt acknowledged
“concerns that supervised community treatment could be used too readily and that it could be used as a failsafe option without true justification.”—[ Official Report, House of Lords, 2 July 2007; Vol. 693, c. 843.]
Lord Patel went on to say that CTOs could even become part of the normal discharge process that detains patients generally, as a kind of safety net for risk-averse mental health service staff and managers. As my hon. Friend the Member for Daventry (Mr. Boswell) said, that might apply disproportionately to members of the black and minority ethnic community. The early experience in Scotland has certainly been that a much larger number of people have been put on CTOs than was originally envisaged. Of course, that also has great resourcing implications. A lot of finances will have to go into resourcing CTOs, which will surely be to the disbenefit of other parts of the mental health service. I would like some guarantees that, under the amendments, the Minister does not think that CTOs will gobble up a disproportionate part of the resources, causing problems elsewhere.
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The Government originally introduced CTOs to deal with revolving-door patients, and we would like further clarification as to how the amendments apply to such patients, because there is some woolly terminology. The amendment refers to having to take account not only of the patient’s history of mental disorder, but of “any other relevant factors.” What does that mean? What situations will be considered? For example, if a person had been a voluntary patient, as well as being under compulsion, would that be considered? What exactly in the patient’s history of mental illness are the Government going to take into account under the amendment? We, and the Government, support the amendment, but it is not nearly as detailed and specific, or as prescriptive, as the amendments that the Lords put into the Bill, which the Government took out and we tried to restore on Report.
If the purpose of CTOs, even with the amendment, is no more than to get a patient to take his medication, we are saying that medication should be forced on a patient even if it is doing him no good and even if it may lead to harm. That brings into question the whole attitude of Ministers: that CTOs have to be with the agreement of the patient. If the patients are agreeing to treatment, why do we need compulsory treatment orders in the first place? That is a clear anomaly. I would like some assurance that the code of practice, perhaps, will be clear as to the ultimate purpose of a CTO and that compulsory medication should not be used as a substitute for adequate mental health care in the community. We need some assurance that the code of practice will work as it relates to the amendments.
Finally, we welcome the progress that has been made with the amendments, but we still do not think that they have gone far enough. This is a great missed opportunity in many respects to have a Bill that could serious challenge the problem of stigma. In the not too distant future, when we are in government and in a position to look at mental health legislation, we will want to review some of the provisions of this Bill. I hope that the Minister will give an undertaking to review some of these radical and innovative—but unproven and untried—measures, particularly regarding CTOs and the impact they are having on the BME community and some of our most vulnerable patients. If he does not review it, we certainly will want to and we shall monitor this legislation closely. We want to be sure that, after eight years in gestation, the Bill works for the benefit of vulnerable people.
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Dr. John Pugh (Southport) (LD): In considering the passage of this Bill—Lords, Commons, Commons, Lords—I am reminded of the nice cop, nasty cop routine. Their lordships savaged the Bill menacingly, and this House sought collectively to cajole the Government to mend their ways. In part, I think they did. Genuinely, it has not been a bad double act. The Bill has been improved, although not to universal satisfaction. I have referred to the remarks made by Baroness Murphy and Lord Alderdice in the Lords, which were full of dark foreboding, largely about the use to which psychiatrists might put the Bill. I have suggested that the Bill could be called the Mental Health (Fear of Psychiatrists) Bill.
With that in mind, we would do well to accept the Lords amendments, particularly relating to the powers
of the responsible clinicians, the exceptions and the additional conditions on CTOs. With regard to the exceptions, I pointed out on Report that it was restrictive, as the Government have said, but innocuous, judging by international comparisons and the way the law pans out elsewhere. However, it also sends out powerful signals about cultural, religious and social sensitivity. Some of the same effect could also be achieved, if people wished, by a statement of principles.
Baroness Barker’s excellent amendment produces a kind of cross between those two solutions. It was Lord Hunt who called the attempt declaratory, and declaration has a place in legislation. It is a good amendment and sends important signals.
Lord Patel’s amendments are more genuinely substantive and equally welcome. The residual question is whether enough has been done to allay the fears of Lord Patel, Lord Alderdice and Baroness Murphy, which were expressed by Lord Patel when he asked how we can be assured that this legislation will not massively increase the legal coercion of psychiatric patients. When the Government have been pressed on the question of whether more people will be under coercion as a result of this legislation, they have been shy of saying that no more people will be affected.
Our question now is whether we should do more, without going so far as to frustrate the objectives of the Act. I do not know whether we can, or whether, if we are tempted to do that, we could deliver it politically. The legislation has been improved by forensic criticism on one side, and by a listening Minister. I pay tribute to the right hon. Member for Doncaster, Central (Ms Winterton), who as a Health Minister played a conspicuous part in seeing this legislation through.
It would have been good if the other place, notwithstanding their disappointments and amid their lordly back-slapping, had recognised that the House of Commons has played some part in making progress on this legislation. For example, Baroness Barker said:
“Some of the debates in another place were disappointing in that they were conducted by people who had clearly forgotten some of the many abuses in the mental health services in this country, where there are still people who were subjected in the past to wrongful application of compulsory mental health treatment. I meet some of them in the course of my work...although they are now very old”.—[ Official Report, House of Lords, 2 July 2007; Vol. 693, c. 816.]
I do not think that she was talking about events since the 1983 Act or—I hope—about events consequent on its amendment here. Only time and a serious review—which we badly need—will tell. It seems to me that though the business today will be concluded, it is, as the Minister has implied, far from finished.
Mr. Boswell: Like other hon. Members who have spoken, I commend the amendments to the House, although I do so without total and unqualified approval. It would be churlish to fail to acknowledge my delight that the Minister has come among us to discuss this important subject. He has been very involved in health matters, and only 24 hours ago he and I were in the same room together discussing them. He will bring a sensitive touch to the issue, by which I mean no disrespect to his colleague who carried the brunt of the consideration of the Bill in Committee.
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