Clause
36
References
Tim
Loughton (East Worthing and Shoreham) (Con): I beg to move
amendment No. 58, page 35, line 35, leave out
‘16’ and insert
‘18’.
This
is a rather simpler amendment than the last one, and enormously less
long. It is about the referral to mental health review tribunals.
Again, it reflects our concern about how children and young people are
treated in the Bill. We are trying to ensure that safeguards are put in
place for all children under 18. Its purpose is to ensure that children
under 18 are reviewed at least annually by a tribunal. At present, only
children under 16 are automatically entitled to an annual review. We
think that they should have at least an annual review given the
sensitivity of their position. After all we are talking about very
vulnerable children. Children under 18 but over 16 who have no one to
look after their interests, such as unaccompanied asylum seekers or
those whose parents do not understand the mental health system, might
not be reviewed for three years. Surely, that is far too long in the
life of a young person.
The point of the amendment is
simple. It reinforces the fact that those under 18 are regarded in law
as children, and it would safeguard their rights. Although we are not
talking about an enormous number of children each year, surely it is a
worthwhile safeguard to ensure that children under 18 do not have to
wait for up to three years, as they could in some cases, for a
review of their position——of their continued sectioning or
other treatment——by the mental health review
tribunal.
Ms
Winterton:
Clause 36 provides a safeguard for patients who
do not use their right to apply to the tribunal. It ensures that even
when patients have not applied themselves, hospital managers will
automatically refer them to the tribunal after a certain period. All
patients under 16 who do not apply to the tribunal, other than under
section 2, get referred after the first six months of their detention.
If a year passes without a tribunal, then they will be referred again
by the hospital managers. The amendment seeks to extend the annual
referral to patients under the age of
18.
I sympathise with
the intentions behind the amendment. I would like to look at the
potential financial and particularly operational implications. I agree
with the hon. Member for East Worthing and Shoreham that it is
important to consider very carefully the best ways to ensure that
children’s rights are properly safeguarded. I would like to
consider the amendment further, alongside the commitment made by my
noble Friend Baroness Ashton in the other place. That commitment was
that no child under 18 should appear before the tribunal without having
had some input from a child and adolescent mental health specialist. It
is appropriate to put both considerations together. I invite the hon.
Gentleman to withdraw the amendment so that I can consider it
further.
Mr.
Boswell:
Would the Minister also consider that, if
children under 18 are to appear before the tribunal, they should be
adequately supported in what is bound to be a difficult process? They
should not feel it to be any more difficult than it has to be. The
Minister will be familiar with the many changes to young people giving
evidence. Will she at least ensure that such vulnerable young people do
not feel threatened by the tribunal beyond the bare requirements in
their own
interests?
Ms
Winterton:
I certainly would not want children to feel
threatened by the tribunal. Of course I will look carefully at what the
hon. Gentleman
said.
Tim
Loughton:
That was short and sweet, but we appear to have
made some progress. Perhaps we should keep all our amendments
as short as that and we might get rather further than we have done in
the rest of the
Bill.
I am grateful to
the Minister for saying that she sympathises with the intention and
that her support is conditional upon further investigation into the
financial and operational implications. We do not think that many
children are involved, but it is difficult to tell because the figures
are not collected. Potentially, we are not talking about a big cost
implication at all, if any. If it can be achieved operationally, then I
am happy to withdraw the amendment on the basis that she will come
back, having considered it, and perhaps give us good news on Report.
Therefore, I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
36 ordered to stand part of the Bill.
Clauses 37 and 38 ordered to
stand part of the
Bill.
Schedule
5 agreed
to.
Clause 39
ordered to stand part of the Bill.
Clause
40
Conditionally
discharged patients subject to limitation
directions
Question
proposed, That the clause stand part of the
Bill.
The
Chairman:
With this it will be convenient to discuss the
following:
New clause
17—Removal to hospital of persons serving sentences of
imprisonment——
‘(1)
The 1983 Act is amended as
follows.
(2) In section 47
(Removal to hospital of persons serving sentences of imprisonment, etc)
in subsection (1) leave out from “Secretary of State” to
the end of the subsection and
insert—
“must by
warrant direct that that person be removed and detained in such
hospital as may be specified in the direction: and a direction under
this section shall be known as “a transfer
direction”.’.
Tim
Loughton:
New clause 17 has a little more detail than the
last amendment and deals with the criminal justice system and the duty
to transfer prisoners. Its purpose is to place duties on the Home
Secretary about referral of people in the criminal justice system to a
hospital
environment.
11.15
am
Section
47 of the Mental Health Act 1983 allows the Home Secretary to order the
transfer of a sentenced prisoner to hospital. Any such decision is made
by the Home Secretary, based on reports from two doctors. We are
concerned that prisoners with mental health problems are still not
getting the specialist medical treatment they need. We are all only too
well aware of the enormous problems with mental illness among the
growing——and record——prison population. The
hon. Member for Slough (Fiona Mactaggart) responded to a question about
the state of mental illness in our prisons just over a year ago, when
she was the Parliamentary Under-Secretary of State at the Home Office.
She referred to what she termed the most comprehensive national
assessment to estimate the incidence of mental illness in prison,
published by the Office for National Statistics (ONS) in 1997. The
survey indicated that 90 per cent. of prisoners have at least one
mental health disorder, including personality disorder, psychosis,
neurosis, alcohol misuse and drug dependence. The majority of that
number have common mental health problems, such as depression and
anxiety, much of which may be related to their imprisonment rather than
being a contributing factor to it.
A smaller,
but again much larger than average, proportion of those people have
more severe problems, such as schizophrenia or some form of personality
disorder. We have discussed personality disorder problems and I
mentioned the dangerous severe personality disorder prison population.
I know some of the experiments that are going on in the pilot scheme in
Broadmoor, which I
visited, where prisoners with severe personality disorder have been
transferred for a different sort of treatment and
confinement. Those
figures are slightly out of date but none of us would expect there to
have been a drastic improvement in the mental health state of the
prison population. The annual report of the chief inspector of prisons
in 2002-03 estimated that 41 per cent. of prisoners in health care
centres should have been in secure NHS accommodation. It was discovered
in 2004 that, at any one time, at least 40 prisoners assessed as
needing a transfer to hospital had been waiting over three months for
it to take place.
There is a large divide between
the health care that individuals can receive in the community and what
can be achieved in the prisons, owing to the difference in priority and
limited resources. Surely, prisons are not the place for people with
serious mental health problems as they cannot provide appropriate
levels of care. I know other hon. Members have raised the subject on
the Floor of the House. My hon. Friend the Member for Wealden (Charles
Hendry) introduced a private Member’s Bill last year on the
mental health of the prison population. Many members of the Mental
Health Alliance are concerned that section 47 of the 1983 Act has not
proved to be an effective mechanism for transferring prisoners with
mental health problems to a hospital for specialist care.
In line with the recommendation
of the joint parliamentary scrutiny committee, many people believe
that, where two responsible clinicians agree that the transfer to a
hospital is needed, the Home Secretary should be under a duty to order
his or her transfer. That may help with the burgeoning prison
population. Given that the prison population has gone over 80,000 and
the Government and Home Secretary are now having to look at emergency
provisions such as floating prisons and so forth, taking some of those
people for whom it would be more appropriate to be in some form of
mental health accommodation out of the prison population could come as
something of a bonus to the Home Secretary, whoever he or she may be in
a few weeks’ time.
Chris
Bryant (Rhondda) (Lab): Has the hon. Member had any
conversations with his hon. Friend the Member for Monmouth (David T.C.
Davies), who thinks that the prison population should be
doubled?
Tim
Loughton:
I have not and I do not think that is relevant
to the amendment we are talking about. I saw an interview in the
weekend newspapers with my hon. Friend the Member for Monmouth, who was
wearing a special constable’s
uniform.
Ms
Winterton:
The hon. Gentleman was wearing
it.
Tim
Loughton:
I was not wearing a special constable’s
uniform. I will talk to the Minister about that afterwards.
The proposal
was put forward by the pre-legislative scrutiny Committee. There is a
genuine problem. The problem, as we were told in the pre-legislative
scrutiny Committee, is that corrections and community corrections staff
lack the training and expertise adequately to identify
mental health issues in prisons. In Committee, we were told by the
Department of Health that there are plans to implement a mental health
first aid training package to provide corrections staff with the skills
to recognise symptoms and provide initial assistance and referrals, and
that higher-level training is being considered for key staff, as there
are few specialist mental health staff in the prison system.
In responding
to the new clause, will the Minister comment on what progress has been
made on that? I think that we are all aware that the state of mental
health provision, and of health provision
generally—[
Interruption.
] I am sorry if I
am boring the hon. Member for Stockport, but it is an important
subject. There are many people who are not receiving the treatment they
need, and whose condition is stagnating and worsening in prison
environments where appropriate care is not available. I note the
Government’s earlier references to appropriate treatment.
Appropriate treatment is not available in too many prison
scenarios.
Angela
Browning:
Does my hon. Friend agree that when people who
have been through the criminal justice system await the courts’
determination as to disposal, the courts often face difficulties
finding not only prison places but appropriate places in mental health
secure units? When the Minister replies, will she assist my hon. Friend
by giving us the latest figures and any advice that she has received
from the judiciary regarding its concerns about having to make
inappropriate disposals due to the lack of
facilities?
Tim
Loughton:
My hon. Friend makes a pertinent point, and I
know that the Minister will be keen to give us those figures straight
away. On that basis, I shall sit
down.
Ms
Winterton:
I agree absolutely that we need to ensure that
proper mental health facilities are available in prisons for prisoners
who require treatment, which is why we have created a number of new
prison in-reach teams. It is also important that we have an appropriate
mechanism for transferring prisoners.
I refer Opposition Members back
to our discussions about treatability. One issue, particularly for
women in prison, is that the treatability test has got in the way. As
Jean Corston said in her report, there are far too many women with
personality disorders in prison who are not being treated, which is why
she welcomed the changes that the Government want to make to the Act to
ensure that treatment is available, particularly to the women whom she
highlighted.
I
recently asked for a review of both high security and medium security
facilities. It has not yet been published, but I assure Opposition
Members that due to the number of beds in the NHS and those
commissioned in the independent sector, I am quite satisfied that
provision is adequate, particularly for medium security
prisoners.
Sometimes
the issue is how to handle transfers from prison. The new clause would
address that, as it concerns the treatment of offenders who have been
sentenced to prison and then need to be transferred to hospital for
specialist treatment of a mental disorder. The new clause is
particularly concerned with the
Secretary of State’s power to direct the transfer of prisoners to
hospital, which will occur when the Home Secretary receives reports
from two doctors that a prisoner suffers from a mental disorder that
makes it appropriate to detain the prisoner in hospital for medical
treatment. The Bill provides for appropriate medical treatment for that
prisoner. The
Secretary of State’s current power to direct transfer to
hospital is discretionary. Once a prison has notified the Secretary of
State that a prisoner requires treatment in a mental hospital in which
he may be detained, he is under an expedient duty to take steps to
obtain medical evidence. If medical advice says that a transfer should
be made, the Secretary of State must take reasonable steps to do so,
but, importantly, in taking those steps the discretion enables the Home
Secretary to take account of the situations of hospitals to which a
direction might be made. It does not oblige him to transfer a prisoner
to a hospital regardless of whether appropriate care or facilities are
available there, or whether the hospital has a bed available, or
whether it is able or willing to provide sufficient security for the
public and other patients or for its staff.
The
Opposition’s new clause would remove the Secretary of
State’s discretion and oblige him to direct regardless of
particular circumstances. I completely understand that, when a prisoner
is suffering from a mental disorder making it appropriate for him to be
detained in hospital, there is a need to act as soon as is practicable.
However, I cannot see the value in directing prisoners’
admission to a hospital that has no facilities to provide the treatment
that they might need or that cannot offer the security needed to enable
a prisoner to be treated in conditions of safety. The problem with the
new clause is that it holds out the possibility of both
happening.
Mr.
Boswell:
I am always slightly suspicious when the Minister
gets into caricature territory; my hon. Friend the Member for East
Worthing and Shoreham may attend to that later. Can the Minister make
something clear for the record? She has now twice referred to the Home
Secretary while also referring, variously, to the Secretary of State.
Although I may be wrong, I had understood that under the new
arrangements for the division of the Home Office, the responsibility in
question will devolve to a Minister or Secretary of State for Justice
and not to the Home Secretary. It is important that we get that point
clear.
Ms
Winterton:
That is a fair point.
I want to emphasise some
important security questions here. Obviously, many prisoners would be
in an extremely vulnerable situation, but it is also true that others
may be extremely dangerous. We could be talking about people who have
committed quite serious crimes; any prisoners in such circumstances
would need to be transferred to hospitals with an appropriate level of
security.
I
completely understand that the spirit of the new clause in seeking to
ensure that people get treated quickly. That is why, as I said, we now
have 102 NHS mental health in-reach teams in prisons. This year, for
the first time, all prisoners should have access to those services.
Some 360 more whole-time equivalent staff
are employed on mental health in-reach provision, which actually
exceeded the NHS plan for 300 to be in post by the end of 2004. More
than £60,000 has also been invested over three years on mental
health awareness. The hon. Member for East Worthing and Shoreham talked
about basic training in that area for prison staff, which has commenced
and should be reaching 20 per cent. almost as we
speak. 11.30
am
Tim
Loughton:
Before the Minister rattles off all this stuff,
can I take her back to the safety angle? I am sure that she will be
able to give me the figures, but is it not the case that fewer people
have escaped from high security mental hospitals than from prisons? Her
contention that a mental hospital would in some way be less secure than
a prison for potentially dangerous people therefore does not hold. Is
that not
right?
Ms
Winterton:
No, because I was talking not necessarily about
escapes, but about security levels for staff and other patients in
respect of someone who is potentially quite dangerous. Security is
needed not only for the individual, but for staff, visitors and other
patients.
Tim
Loughton:
If we are not discussing escapes, would not the
Minister agree that the degree of specialism and skill that is
available in high security mental hospitals to deal with someone who
might be dangerous either to himself or to other patients is much
better and more appropriate than in prisons? The reasons are the ones
that have been stated, which are connected with shortage of skills and
facilities. Whether the issue is escape, safety of inmates, public
safety or the safety of the individual, there is better provision in
hospitals than in prisons, so the Minister’s argument does not
stand
up.
Ms
Winterton:
I do not necessarily agree. The whole point of
the new clause is that it would remove any discretion to consider the
type of hospital that might be appropriate. That is exactly the problem
with it, and that is why I have said that retaining the discretion is
important.
It
might reassure the Committee to know that there has been a significant
decrease in the number of people who wait more than 12 weeks for a
transfer from prison. In the quarter ending December 2006, 38 prisoners
had been waiting for that period, compared with a figure of 62 for the
quarter ending June 2005. The figure for December 2006 is obviously
still too high, but I hope that it indicates that the changes that we
have made are working.
The new clause seeks in a sense
to use legislative powers to direct the allocation of NHS resources,
and could almost result in more favourable treatment of prisoners,
because hospitals would be obliged to accept them. That would put the
issue in a rather different perspective—one that would not
necessarily be favoured by the public.
I understand that the
Opposition are trying to highlight the need for people to be
transferred quickly
from prison to hospital, if transfer is appropriate, but there are some
very good reasons why removing discretion from the Secretary of State
would not be appropriate, among which are matters of public safety. I
hope that the hon. Member for East Worthing and Shoreham will therefore
withdraw the amendment.
The
Chairman:
Order. Hon. Members on both sides are making
references to an amendment. We are not discussing an amendment; we are
discussing the matter of clause stand part.
Tim
Loughton:
I was under the impression that we were
discussing new clause 17, Mr.
Cook.
The
Chairman:
The hon. Gentleman has permission to discuss
that new clause, but the Question before us is whether clause 40 should
stand part of the Bill.
Tim
Loughton:
So on the basis that new clause 17 is grouped
with the matter of clause stand part, I have leave to discuss
it.
Tim
Loughton:
Thank you, Mr. Cook. I was a bit
confused by what the Minister said, and I think that she got a bit
confused too. Having said that the issue was not escapes, which
endanger public safety, but behaviour and risk in prisons, where the
public are not present, she ended up by saying that it was all about
public safety. It seems to be a rather circular argument.
Having reeled off a
load of supposed improvements to facilities in prisons and mental
hospitals, the Minister then said that actually there might be a
problem if such facilities are not available in a hospital to which the
Secretary of State for Justice is obliged to make a transfer. Either
things are getting better, in which case the services are available, or
they are not, in which case we must do something about it, but at the
end of the day it is about the health and well-being of patients who
have serious mental health problems that are not properly catered for
in prisons. They are in the logjam that exists in the prison system at
the
moment.
I
do not take the Minister’s point about removing all the
Secretary of State’s discretion. The new clause would place a
duty on the Secretary of State. If given proper, investigated medical
advice that a person should not be in a prison but a hospital
environment, surely the Secretary of State for Justice should pay close
attention to that advice. He or she will not be expert enough to give
opinions on the person’s medical state. Surely there are few if
any grounds on which the Secretary of State for Justice should
challenge a medical opinion given by a person legitimately entitled to
give it. Why, all of a sudden, is the Secretary of State for Justice as
competent to give medical opinions as a highly qualified Secretary of
State for Health would
be?
Ms
Winterton:
But the new clause would specifically remove
the following words:
“the
Secretary of State may, if he is of the opinion having regard to the
public interest and all the circumstances that it is expedient so to
do”.
It would remove the
reference to the public interest and replace it with a provision that
the Secretary of State
“must by warrant direct that that
person be removed and detained in such hospital as may be specified in
the direction”.
There is
no discretion whatever. The new clause would, in particular, remove the
reference to the public interest, which is the
discretion.
Tim
Loughton:
It would remove the discretion to judge whether
that individual has a problem, because the Secretary of State for
Justice is not medically qualified, competent or expected to judge
somebody’s medical condition. That is why we have experts to do
so. That is what the legislation is all about.
As for the discretion, the
Secretary of State
“must
by warrant direct that that person be removed and detained in such
hospital as may be specified in the
direction”.
My
understanding is that the provision does not say exactly which
hospital. It would be inappropriate to dump a prisoner in a mental
hospital that is ill-equipped, unsuitably insecure or otherwise deemed
inappropriate.
Mr.
Boswell:
Does my hon. Friend agree that the
Minister’s reservations about the new clause might well reflect
the fact that, despite her protestations about the adequacy or
improvement of mental health services for prisoners, there might be no
such hospital in the category to which a particular prisoner could be
referred? In other words, there might be a covert agenda whereby the
Secretary of State for Justice is aware that the system is failing a
person’s needs and does not wish to be obliged to make a warrant
for their redirection to
hospital.
Tim
Loughton:
This is a probing new clause, because it clearly
recognises the problems that the Minister acknowledged when she claimed
that improvements were occurring in transfers from prison to hospital.
I do not see any incentive, other than to clear some prison space for
people whom it is more appropriate to be place there, for the Secretary
of State for Justice to do something about it. Does the Minister have
figures for the number of people for whom there was medical
recommendation for transferral to a hospital environment and about whom
the Home Secretary, as it would be at the time, said no for whatever
reason, because he had discretion to do so? What reasons would have
been given that those people should not be transferred? If the reason
was that the alternative was less appropriate, as the right hon. Lady
suggested, were the decisions reviewed after some weeks or months when
a more appropriate placing was available in a high security mental
hospital, for
example?
As it stands,
the Secretary of State for Justice can say no and does not have to do
anything about it. Should there not at the very least be some
conditions whereby if he says no, he must then reconsider the decision
after several months? If the medical determination is still the same,
there should be a greater incentive or compulsion for him to ensure
that an appropriate hospital space can be found by reference to the
Secretary of State for Health, whose system clearly is not providing
the services that are required for that different form of
patient.
Ms
Winterton:
If the medical advice is that the Secretary of
State recommends transfer, he does not question that advice. The
discretionary bit is where the transfer is and that he can wait until
an appropriate hospital is available. As I said, the numbers
waiting for more than three months have decreased by
about 33 per cent., so the discretion is about where and when,
not the medical opinion in the first place. I hope that I have been
helpful.
Tim
Loughton:
I was not challenging that, but it is pointless
unless the Secretary of State for Justice has to do something about it,
such as decide whether to challenge the medical opinion or not to
challenge it and say that a suitable place was not available. The
consequences would be the same, as a person in prison, who should not
be in prison, should be in hospital. That is the key point. What is the
incentive for an appropriate space to be found as soon as possible?
There does not seem to be any
comeback.
The Minister
gave us some indicative figures of how delay has been reduced when she
referred to 12 weeks. Does that cover everyone? Is everyone
automatically obliged to be transferred if the medical opinion is that
they should be transferred, even if it takes three, six, nine or 12
months? Will that recommendation still be live? I do not know how the
system works at the moment, but my reading of the mechanism suggests
that there is a potential problem with having no incentive to get on
with it.
I come back
to the Minister’s point about public safety, and appropriate
security and skill levels in a hospital. Surely, if she has confidence
in the services that her Department is offering to mental health
patients and those in secure mental hospitals who happen to have come
through the criminal justice system as well, she should not be making
the case that, in some way, they might be better off in a prison than a
health environment. That is the clear implication of what she is
arguing, especially by praying in aid public safety, which does not
apply in prisons because there are no members of the public
there.
Angela
Browning:
Let us suppose that it is recognised that there
is a need for someone with a custodial sentence to be referred to a
hospital placement. When that does not take place, there is the obvious
problem of managing the person in the prison. I represent a Devon
constituency and I have visited Dartmoor prison from time to time. It is
my limited experience that mental health patients, which is how I
describe them, are often confined to the medical wing on a
semi-permanent basis because that is the most containable place in
which to manage
them.
If that referral
is never made, however, the prison has to deal with the patient on an
ongoing basis. When that person is discharged from prison, they could
be sent back into the community with no proper contact with mental
health services. They may have contact with the probation service, but
not mental health
services.
11.45
am
Tim
Loughton:
My hon. Friend is right. That is not in
anyone’s interests. It is not in the interests of the prison,
which has its hospital wings jammed up with long-term mental health
sufferers, or of other prisoners who, in
severe cases, may be at some risk from those people. In addition, the
medical qualifications or training of the prison staff may not be
sufficient to deal with such prisoners compared with those in a higher
security hospital, which clearly provides the appropriate
treatment.
We have
raised some legitimate concerns about the mechanics of the transfer
from prison to hospital. I am a little muddled by the Minister’s
logic. I do not think that the amendments are as constrictive as she is
suggesting in terms of taking away all of the discretion of the Home
Secretary—or the Secretary of State for Justice as it is now.
The Minister may want to reflect on some of our
points.
Dr.
Pugh:
Surely the weakness of the Government’s
position as it stands is that it does not preclude the indefinite
absence or postponement of treatment if the case is sufficiently severe
for there to be a public interest. For example, nobody could find a
good hospital for Ronnie Cray, so he was left to fester in prison.
Also, in the case of terrorists, the Government would never find a
public interest case for hospitalising such people even if
hospitalisation is medically recommended. Therefore, the weakness of
the system is that it allows the indefinite absence and postponement of
treatment without any review of that
decision.
| 
