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This has been supported for a number of years by Jones’s Mental Health Act Manual, the established authority on the Mental Health Act for practitioners. It was also encouraged in the first code of practice for the 1983 Act, which I made a contribution to writing. Chapter five of the 1999 revised code of practice gives a rather longer discussion of when Section 2 should be used and when Section 3 could be, and suggests that the frequently admitted patient might come in on a Section 3. Since then, the Mental Health Act Commission has noted an increase in the use of Section 3, but it does rather miss the clinical point about the purpose of assessment and the greater opportunity for an early tribunal.
We cannot get the full impact of a single gateway into the 1983 Act because the role of the tribunal in authorising compulsory treatment has been omitted, but the amendment could get us near enough to doing so. I stress that clinicians consider that what is proposed here is normal best practice, but not all psychiatrists have followed it, and I think they probably should.
It becomes particularly important in the case of any form of supervised community treatment, because in theory someone could be admitted for treatment directly, remain in hospital for one day and then be placed on supervised community treatment. The Government’s response will rightly be that that would be rather bad practice and that we would expect people to behave better. Nevertheless, these very serious decisions, if we are to take them, require considerable in-patient assessment, and if we have a single gateway into care, a patient will be guaranteed a proper and thorough assessment each time. I beg to move.
Earl Howe: The noble Baroness speaks with tremendous authority on this issue, and I can only agree with all that she said. Simply from a practical perspective, we need to focus on how valuable it is for an assessment to be carried out in all cases before there is any question of compulsory powers being exercised. Having listened to psychiatrists talking about this issue, I am convinced that this concept of a single gateway is right. It is sometimes very difficult for a doctor, when confronted by a patient in acute mental distress, to make an accurate diagnosis about that person’s needs in a very limited time. Snap judgments can be wrong. That difficulty can occur even when he knows the patient already. To admit the patient for assessment buys him the necessary time and ensures that the essential preconditions for compulsory admission to hospital are present. Chief among those conditions is that the patient has a mental disorder as opposed to suffering from anything else, such as temporary intoxication or, as the noble Baroness, Lady Finlay, said, a brain tumour, and that compulsory treatment is necessary to avoid significant risk to the patient or to others.
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The noble Baroness was right: we do need to remind ourselves that, for an individual even to put himself in the running for compulsory detention, something very major must have happened that brings him to a state of mental crisis. Even if the doctor has dealt with the patient before, he cannot necessarily prejudge how such a crisis should best be handled. Whatever is the matter with the patient now may be different from whatever was the matter before, and all this argues strongly for this amendment.
The noble Baroness was right again to remind us that the 2004 Bill provided for an automatic assessment period before a care plan is drawn up. I hope that the Minister will not tell us, as she did in response to the last amendment, that this amendment is strictly unnecessary because it accords with best practice. If I were to be cruel about the Minister’s last reply, I would say that she was preaching to us an exercise in cost-cutting in the National Health Service. I hope I do not misjudge her—I am sure that she is not of that frame of mind—but that could be what lies behind the Government’s answers.
I hope that the Government will look positively at trying to replicate in this Bill the idea from the 2004 Bill, because under that Bill the patient would either have been discharged or have had his case considered by a tribunal. The amendment in effect proposes a right for all patients to apply to a tribunal. That is in the spirit of what the Government accepted before as being appropriate, and I am sure that it is right.
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Baroness Neuberger: I support the noble Baroness, Lady Murphy, and the noble Earl, Lord Howe. As many noble Lords know, I spent several years chairing an NHS trust which had a major mental health component. I agree with the noble Earl that we should keep away from saying that best practice means that X or Y will be done. The problem is that in a very stressful ward with staff and bed shortages best practice does not always apply. Any of us who have had much experience of the system would say that at best it applies, at worst it does not apply, and that a lot of the time best practice is somewhere in the middle and is applied some of the time. For that reason, it is important that we go back to the principle accepted in the 2004 Bill, that there is a period of up to an up to 28 days that gives people a breathing space. The noble Baroness, Lady Murphy, was right: in particular, if we move towards compulsory treatment in the community, it is key that people have that breathing space.
I also want to comment on the point made by clinicians who have argued that patients who are already well known to the service should not require this period of up to 28 days because they are revolving-door type patients, have been admitted before on a voluntary basis or, having lacked capacity, have not objected to being there. Those arguments are profoundly wrong. If compulsory powers are to be contemplated, as the noble Baroness and noble Earl have said, the situation has in some quite profound way changed. The patient may now object to being in
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Baroness Meacher: I shall be brief. I do not want to repeat what other noble Lords have said, but I want to register my support for this amendment. Under the current provisions of the 1983 Act, most patients who come under the compulsory regime defined in the legislation are admitted under a Section 2 28-day assessment order. As my noble friend Lady Murphy, mentioned, an increasing number of patients are placed on a Section 3 treatment order for a maximum of six months. One reason for this is that only Section 3 patients have the right to aftercare under Section 117. Psychiatrists have told me that that is why Section 3 is popular. The amendment Bill would perpetuate that state of affairs.
Having been involved in assessments under the Mental Health Act 1983, albeit many years ago, I clearly remember the horror of patients who were placed under a Section 3 treatment order on admission to hospital without the benefit of the initial 28-day assessment order. The horrible trauma of the police, the ambulance, the professionals and so on must feel completely different to being admitted to hospital. When telling a patient “This is a six-month order”, it does not matter how many times you say, “But you may be discharged long before that—maybe after three or four weeks”. They cannot hear that, partly because of their state of mind at that time. All that they really take on board is “I am being banged up for six months”, which is not a small matter for patients. It is horrendous. This sounds like a minor amendment, but for service users/patients it is not.
Noble Lords have mentioned the clinical perspective where, however many times a patient may have been in hospital, there is always a need to look at the circumstances that caused the particular crisis, the symptoms at the time and so on. It may be that after a brief period of assessment within the 28-day order the patient could be discharged and the rather onerous six-month detention order may not need to be considered. The mental health services are increasingly well placed to provide therapy and support, although, as the Minister knows well, much needs to be done to extend that. The legislation should surely reflect the current and future aspirations of the mental health service rather than look back to a more hospital-based and detention-focused service. A further advantage of a single gateway is that a 28-day assessment order gives the patient early access to a tribunal. There is no doubt that that can be onerous for clinicians, but having abandoned the much more extensive role played by tribunals in the 2004 draft Bill, it is perhaps not unreasonable to suggest that this particular safeguard would be a reasonable one.
As has already been mentioned by other noble Lords, the 2004 draft Bill did seek to deal with the issue—I understand that it did so very well—but the major texts and the Royal College of Psychiatrists all support the single gateway as a valuable safeguard. Further, on the point made about Section 117
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Baroness Royall of Blaisdon: As we have heard, Amendment No. 9 would require all civil patients to be detained under Section 2 when first admitted to hospital. Noble Lords have spoken with great expertise and authority on this, and I understand that this is not a minor amendment. However, I should say to the noble Earl, Lord Howe, that this has nothing to do with cost-cutting. What we are talking about in the Bill is the need to ensure that patients receive the best treatment available and that we make the best use of the resources available.
Of course, no patient should ever be detained without the need for detention being assessed first. Similarly, no patient should be treated without an assessment of what treatment they need. However, it does not follow that all patients who need to be detained under the Act need initially to be detained under Section 2. In fact, only around a quarter of those detained under Section 3 have been detained under Section 2 first. Many clinicians believe that Section 3 has a valid purpose as a primary form of detention in its own right. Patients who are known to mental health services and are presenting with the same symptoms as in previous episodes should be detained under the appropriate section. I hear what the noble Baroness says, but if it is known what is wrong with the patient and that “appropriate treatment is available”, Section 3 would be the most appropriate section. The simple fact is that they do not need to be detained for assessment, and arguably the person making the application and the doctors supporting it would be forced to claim something they did not truly believe. However, I recognise and accept the point that people may change between assessments.
We could try to tackle this by making the criteria for Sections 2 and 3 the same, but that would not be right either, because there are people who need to be detained for assessment precisely because it is not clear whether they need to be detained for treatment. It must be remembered that many patients have an ongoing relationship with mental health services, and people see the changes taking place. They stay in contact with services and may admit themselves as informal patients if they feel their mental state is deteriorating. These patients will be assessed and, where necessary, treated in hospital as informal patients. But if something changes and they then require detention under the Act, it may not be necessary for them to be detained for a further assessment under Section 2. In 2004-05 some 37 per cent of detentions under Section 3 were of people already in hospital. All patients detained under the Act are continuously assessed to ensure that the initial diagnosis is still correct and that the treatment remains appropriate. Patients admitted for assessment under Section 2 can still be treated even though there is no requirement to establish that appropriate treatment is available before they are detained.
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Section 2 provides the right to reply to the tribunal in the first 14 days of detention, with a tribunal hearing within seven days. If the real issue behind this amendment is a desire to give all patients earlier access to a mental health review tribunal, this we believe is the wrong way to go about it. The Department for Constitutional Affairs is undertaking a series of programmes to improve the efficiency of mental health review tribunals in England and to shorten the length of time between application and tribunal hearing. In addition, the Bill provides for an order-making power that will enable the Secretary of State and the Welsh Ministers to reduce the period before a patient is referred to the tribunal by the hospital managers. Those safeguards will improve access to the tribunal.
In response to the noble Earl, Lord Howe, all patients detained under Section 3 are entitled to apply to the tribunal and will receive a hearing, on average, within six weeks of applying. The noble Baroness, Lady Murphy, asked whether someone could be placed under SCT after one day in hospital under Section 3. In many ways, she answered the question herself but, of course, someone can be brought under the powers of the Act only if they meet the conditions of Section 3. It is highly unlikely that someone brought into hospital under Section 3 would qualify for that the very next day. We believe, as do many clinicians, that the current admission structure, which enables Sections 2 or 3 to be used, is the most appropriate and I therefore ask the noble Baroness to withdraw this amendment.
Baroness Murphy: I thank the Minister for that careful response. There has been a creeping increase in the use of Section 3 admissions since 1999, which many people—including the Mental Health Alliance and the college—are not convinced is in patients’ best long-term interest. I am a little worried that not allowing double access to the tribunal may be a cost-cutting exercise, because of the state of turmoil that the tribunal has been in over the past few years. That may be an added deterrent for the Government from having any further tribunals right now. I am not very sympathetic to that, but nevertheless I will consider the Minister’s response further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Knight of Collingtree moved Amendment No. 10:
(2) In subsection (1)(b) after “medicine” in the first line insert the words “, but excluding the provision of food and drink,”.
“(3A) Subject to section 62 below, a patient shall be provided with adequate food and drink at all times unless—
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The noble Baroness said: Until recent years, it was always without question that patients in hospitals would be given food and fluids. That was absolutely automatic. Everyone knows perfectly well that, without food and fluids, every living creature will die. If anyone were to be sick in hospital, they would be fed. There was no doubt about that once, but not any more.
We all understand that some conditions and illnesses mean that a patient cannot take food in the normal way through the mouth, but for over 100 years there have been other ways to ensure that patients get the sustenance that keeps them alive, and those ways were adopted. Yet a few years ago—I am not sure when, as it made no headlines at the time—the medical profession decided to reclassify the custom of feeding hospital patients. It was henceforward to be called “medical treatment”.
Plainly, that classification is absurd. Is a mother giving a bottle to her baby giving that child medical treatment? Is a husband taking his wife out to dinner to celebrate an anniversary giving her medical treatment? Do we go to the Long Table in the Dining Room to receive medical treatment? Of course we do not, but the change in classification means that people in hospitals may no longer rely on getting their meals as an automatic part of hospital care. As that is now “medical treatment”, the doctors or other hospital staff decide whether it will be administered. That is a hugely significant change.
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I do not believe for one moment that patients are routinely left unfed or that a large number suffer in this way. For some years now, however, I have become more and more concerned about evidence that is accruing that it is not uncommon for hospital patients to be starved to death, or to die for lack of fluid. I must remind your Lordships that that is a terribly painful way to die. In the latter stages of starvation, people are too weak to put forward any strong demand for food or drink, and they die.
I first drew attention to this situation in a debate reported in Hansard on 12 March 2003. I pointed out that the noble and learned Lord, Lord Mustill, was on record as saying, following the reclassification of feeding as medical treatment, that the law is now left in a morally and intellectually misshapen state. I quoted from an ITV programme that showed patients
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A lady told me that her husband, who was a stroke victim, had all fluids denied him without a word to him or to her. She demanded to see the doctor in charge and that her husband be given something to drink, or at least to moisten his mouth. He began to get better as soon as her insistent demands were met. I am told that later she was able to take him home and look after him there.
Evidence, which I hope the Committee will agree is incontrovertible, came from the other place. A friend and colleague, who was an MP for many years and had some heavy jobs and important responsibilities, has a wife who became very ill. He was taking as much time as he could from his duties to sit by her hospital bed. After three days he thought, “That’s funny. I can’t remember any occasion in the last three days when she has been given any food or liquid”. He asked the staff nurse about this, and she said, “Oh, we’re not feeding her”. He said, “Who on earth agreed to that?”. No one had. His wife was not told, nor was he; she was just denied food and liquid. That actually happened; it was the experience of a colleague.
On the day I spoke of these things in this Chamber I introduced my Patients’ Protection Bill, which would have given some protection to people who were being treated like this. The Government blocked that Bill, but the Minister, the noble Lord, Lord Filkin—who, I am sure, wanted to help; he was utterly sincere—told me not to worry, because the aims of my Bill would be achieved in the 2004-05 Mental Health Bill, which at the time was going through this House. Indeed, that Bill contained some words that might well have ended the appalling practice of starving patients. So I sat back and waited to see whether the noble Lord’s genuine suggestion to me, that it would all be all right in the future, came about. I am sorry to say that it did not. Things, in fact, have got worse.
That is why my amendments are on the Marshalled List. We were told—indeed, it was mentioned in the Queen’s Speech—that this Bill would amend the earlier Bill. Because I was told the necessary changes would happen in the earlier Bill, and this is an amending Bill, I tabled these amendments to this Bill. I would not normally have sought to insert them in a mental health Bill, but anything done by the noble Lord, Lord Filkin, for whom I have enormous respect, is quite good enough precedent for me.
I have listened with great care to almost all the debates on this Bill so far. I take this opportunity to register huge admiration for the level of expertise displayed by those who have contributed. This House and our country are greatly indebted to Peers such as the noble Baronesses, Lady Murphy and Lady Finlay, and the noble Lords, Lord Alderdice and Lord Carlile, who between them have years of hands-on experience of what happens with mental patients and with the law. This House provides the country with a wonderful thing: so much expertise from people who know exactly what they are talking about; and advice from the
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I would not presume to speak in a debate that belongs to those professionals, but I have listened with great care and I have attended several meetings about the Bill. I was on the committee studying the previous one and I understand exactly what this Bill is about. I tabled my amendments not because I judged a mental health Bill to be the right place for them, but because of that precedent.
I am also told that my amendments are unacceptable because one of them would mean that patients who have anorexia could not be helped because they do not wish to be fed, and that the amendment would harm their treatment. That depends on how one reads it. It says that a patient “has not consented”, but it is not a matter of that. In any case, we could argue that one way or another. The two final amendments make quite clear what I am aiming at; they say clearly that the assessment should be changed:
“In section 64(1) of the Mental Capacity Act 2005 in the definition of ‘treatment’, after ‘procedure’ insert ‘but does not include provision of adequate food and drink’”.
It is amply clear that I am trying to protect patients by disallowing doctors to refuse them food or liquids.
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