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We all agree that advance wishes are important in determining the best treatment for a patient, stressing that importance in guidance, but the amendment is not the right way to do that. There are legitimate reasons why the advance decisions in the Mental Capacity Act do not apply where the person is subject to Part 4 of the Mental Health Act. The circumstances under the Mental Health Act in which a patient with a mental disorder can be treated without consent to protect them or others are very distinct.
Baroness Murphy: I thank the Minister for that careful reply. I must confess to being puzzled why it is possible in so many jurisdictions of the world to respect the autonomy of patients in expressing a view in advance—especially when they have already had a breakdown and make the effort to sit down with clinicians to say what has been helpful to them—and to have their wishes respected. It seems that that is perfectly possible north of the Border, and I remain disappointed that there is such opposition to the idea being accepted in this country.
For the moment, I shall go away to think about that. I recognise that there may be some difficulties with the drafting of the amendment. I hope that we will find some way to recognise that mental health patients should have their wishes respected, especially when they are well. Perhaps we shall come back with an amendment at Report but, meanwhile, I beg leave to withdraw the amendment.
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Amendment, by leave, withdrawn.
Clause 13 [Amendments to other provisions of 1983 Act]:
9.15 pm
Lord Patel of Bradford moved Amendment No. 22:
“( ) In section 45 (general interpretation), in subsection (1), insert the following definition at the appropriate place—
““care plan” means a structured plan which sets out timescales, responsibilities and services required to meet a patient’s assessed mental health needs;”.”
The noble Lord said: I shall also speak to Amendments Nos. 42 and 46. These three amendments are grouped because they each concern care planning. Amendment No. 22 seeks to provide a clear definition of what constitutes a care plan because it is not presently referred to in statute. This is necessary to ensure it is clear. Amendments Nos. 42 and 46 are intended to strengthen the statutory duty for the use of care planning both for community treatment orders, if the Chamber approves that provision, and for all detained patients, not just following discharge but from the outset of the order or section.
I intend to speak to the main intent behind these amendments rather than address each in turn, and should make clear that in common usage a care programme approach, or CPA as it is known, is the term used to describe care planning. CPA is the process that should produce a care plan, but the purpose of these amendments is to make care planning itself statutory.
As well as being chairman of the Mental Health Act Commission, I have also had a range of roles over many years in the areas of mental health and black and minority ethnic communities. I am not talking about minority ethnic communities today, although they will be among some of the main beneficiaries of these amendments. I am talking about the main practice standards.
Care planning is a fundamental component of good mental health care. I am sure your Lordships will agree that good practice dictates that all detained patients should have a care plan as a reciprocal requirement of detention. The care programme approach, developed and promoted by the Department of Health, is the basis of effective care planning. As the noble Earl, Lord Howe, said in his eloquent speech at Second Reading on the principles that should underpin a modern Mental Health Act,
- “service users should be involved with their own assessment and care”.—[Official Report, 8/1/07; cols. 13-14.]
One would think that that was a simple enough requirement.
One of the stated intentions of the Bill’s drafters is not only that patients should be subject to compulsion under the Act if there is appropriate medical treatment available to meet their assessed needs, but also that the CPA should ensure this takes place routinely, that appropriate treatment is available and that a care plan is drawn up for each patient as
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Unfortunately, despite the Government’s intentions, there remain serious problems in providing patients with robust and appropriate care plans. Quite frankly, it is not happening nearly well enough. Recent research evidence, for example the 2005 report Back on Track by the Mental Health Act Commission and the Sainsbury Centre for Mental Health, demonstrates that implementation of the CPA nationally is at best patchy. Many patients do not have a care plan, or, if a care plan is available in the patient’s record, it is not followed.
It is a significant matter for public concern that, although the CPA has been in existence since 1990, care planning is not at present done well. This directly results in the severest of consequences, such as suicide and homicide. Most worryingly, National Confidential Inquiry into Suicide and Homicide by People with Mental Illness, published only last month, found that 71 per cent of preventable homicides and 45 per cent of preventable suicides were by patients who were not subject to appropriate CPA plans. This is despite clear evidence of severe mental illness, previous violence, self-harm or admission under the Mental Health Act. The report emphasised the importance of ensuring that CPA is properly used for high-risk groups.
Many homicide inquiry reports have found similar evidence of incomplete or ineffective implementation of CPA leading to the most severe outcomes. An example from one of the most recent of these is the MN inquiry. MN stabbed and killed an elderly woman he did not know in her own home. The report concludes that the lack of CPA for MN was a contributory factor to the death of this elderly woman. It concludes,
- “even though MN was subject to s3 and on s17 leave this did not ensure he received care according to the basic standards of CPA”.
“It is expected that the Government will introduce compulsory ... treatment in the community, through amended ... legislation. We cannot emphasise too strongly that this must be backed up by an effective framework for community care”.
Where a tribunal hears any application concerning a patient,
Similarly, the inquiry into the John Barrett case, published in late 2006, shows once again the need for good risk assessment and properly drawn up and implemented care plans in managing potentially violent or disturbed patients. Gillian Downham, barrister and the chairman of several of the homicide inquiries, including the inquiry into the MN case, was concerned enough about the repeated failings of CPA to commission an examination of CPA nationally. That was followed by a seminar that I chaired and which involved some of the leading people in the health, social care and legal professions to advise on the future of CPA. This resulted in specific national
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Recommendations from the full range of inquiries have consistently included calls for practice to be driven by care planning and review. Most of these reports stress the importance of fully involving patients, service users and carers in care planning, and that this should include adequate risk assessment so that care planning can contribute to the prevention of incidents and ensure patient and public safety. In the Mental Health Act Commission’s most recent biennial report, which is to be laid before this House, we wrote:
“Patients’ care plans under the Care Programme Approach are supposed to anticipate crises, and should take account of patients’ preferences in interventions. If care plans can specify actions on the part of the patient or services that will intervene in the early stages of any crisis and possibly avert it, the need to override the patient’s choices through compulsory admission may be avoided altogether”.
Of course, one of the most significant drivers for the Bill has been many people’s concern about public safety. In essence, this means the assessment and management of risk to ensure that people receive the best possible care and treatment. I would be the first to argue that the Mental Health Act should be concerned predominantly with patient care, and I, along with many others in this House, remain concerned to ensure the right balance between the objectives of patient care and public safety. I strongly argue that care planning is central to achieving that balance.
Good patient care based on care planning requires that clinicians follow a robust process of assessment and review, with appropriate treatment, care and support identified for the patient, especially on discharge. Care planning, however, does not define a specific intervention or set of interventions; it is a process, and as such it lends itself well to statutory regulation. And although the clear benefit for patients and the public that would result should be enough on its own to recommend these amendments, it would also underpin the community treatment order if the House approves that part of the Bill. Moreover, tribunals would be in a position to check the existence of care plans, ensuring that patients subject to the Mental Health Act in the community are being provided with a service and thus reassuring the public of their safety.
The Department of Health has recently issued a consultation document on ways of improving CPA. The current proposals are unlikely to deal with what appears to be one of the main problems: the unwillingness, whether intentional or not, of some services and clinicians to give care planning the importance it deserves. One improvement must be to encourage greater clinical involvement, but I am forced to draw the conclusion, based on the evidence and the continuing spate of inquiries into homicides and suicides that I have highlighted, that effective implementation will be achieved only by giving the process statutory force and by ensuring that good practice is adhered to. After 16 years of Department
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As I have already stated, I would be the first to argue that the Mental Health Act should be concerned predominantly with providing the best possible care for the patient, and we in this House are right to be concerned that some of the provisions of the Bill may not have achieved the correct balance between the objectives of patient care and public safety. Yet a very straightforward opportunity to tighten up the present system has been missed. These amendments would provide a straightforward opportunity to address this. Making care planning a statutory requirement would improve care for patients, ensure the safety of patients, and contribute significantly to improving wider public safety. I beg to move.
Earl Howe: The noble Lord, Lord Patel of Bradford, has very ably articulated the case for the principle of reciprocity and I support all that he said. One could put his case a slightly different way by saying that just because patients are subject to compulsion, they should not have to put up with poor services. By including a measure that places care planning for detained patients on a statutory footing, I believe that the Government could send a clear signal to patients and mental health professionals that this Bill is not just about coercing people into treatment; it is also about ensuring that necessary psychiatric coercion will be effective and will help a patient to regain and retain the freedoms that need to be temporarily taken away.
The amendment is designed to provide some reciprocal benefit to people subject to compulsory powers. Of course, this does not amount to a guarantee of specific treatment, irrespective of available resources; rather, just as with the current statutory requirements for after-care planning under Section 117, it would require services to assess requirements and then meet them to the best of their ability. The sanction against services that failed to do this would be the ability, but not the duty, of the tribunal to discharge a patient from detention where a care plan is not being implemented. Effective care planning is also key to ensuring patient involvement and encouraging the exercise of patient choice, even if this is within the limited parameters of coercion. There is good and bad practice in this area. There are hospitals where care planning for detained patients is rudimentary at best, so a statutory duty of care planning would be a marvellous lever for use by monitoring bodies, such as the Mental Health Act Commission, as well as patients themselves and their advocates, to ensure that the failing services prioritise this aspect of mental health care.
The noble Lord, Lord Patel, rightly mentioned the MN case, which shows that care planning is not only about the quality of service to the patient; it can also be an important factor in the safety of the public. Although the specific consequences of the failings in the care programme approach were extreme in that instance, we need to bear in mind that the Mental
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Finally, as I mentioned, under Section 117, there is a statutory requirement for after-care planning of patients who are detained under compulsory powers. Despite the understandable emphasis that the noble Lord, Lord Patel, places on the care which a patient receives on discharge from hospital, it is an irony of the current law that a statutory duty to provide such care as is assessed to be appropriate under a care plan takes effect only when the patient ceases to be detained. Amendment No. 46 seeks to extend that statutory duty to the period when the detention is in effect. I cannot help feeling that this would be an ideal lever to enable the Government’s policy in relation to the care programme approach to be better achieved.
Baroness Barker: I added my name to this amendment for a particular reason. The Joint Scrutiny Committee was regularly presented with very powerful evidence from users on just how little care plans are implemented. I remember one witness talking powerfully about the number of people detained on wards who did not have their care plans implemented and the sheer frustration, and boredom, that that gave rise to on their part, as well as frustration for staff. Many witnesses supported the idea that the care plan approach should be put on a statutory basis, but the Joint Scrutiny Committee did not agree. We disagreed because we thought that it perhaps ought to be left as a matter of practice, which would be easier to change.
However, the Joint Scrutiny Committee made two recommendations. It recommended that,
- “the Bill include a requirement on tribunals, when they are examining care plans, to consider wider concerns and considerations than purely medical matters—for example, social and housing needs”.
That is not in the Bill; it is buried deep within the code of practice, so deep that I doubt that it would emerge to see the light of day. The committee went on to
- “recommend that the codes of practice contain guiding principles for drawing up care plans which will govern the treatment and, for example, the privacy, safety and dignity of the patient”.
At the very end of the code of practice there is a simple restatement of the law on data sharing, but nothing that would amount to a statement of principles about privacy, dignity and security. What has been included in the code of practice falls so far short of what was recommended by the Joint Scrutiny Committee that it is unlikely that it would make a great deal of difference in practice. Therefore I support the noble Lord, Lord Patel of Bradford, in his attempt to highlight this issue from another angle. Much of what he said underlines not just treatment for those who present no problem whatever, but for those patients whom the Government have said all along they are concerned about, those who may become dangerous and violent. That is because a lack of implementation of care planning has often led to a build-up of tension in such patients which manifests itself in violence. That is why I have added my name to this amendment.
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9.30 pm
Lord Warner: I have a good deal of sympathy with the sentiments behind this group of amendments. Certainly no one seriously involved in this area can be opposed to the production of care plans and a care planning approach. I would be the last person to oppose them. But speaking more as a former director of social services than as a former Minister, I have considerable doubts about enshrining this approach in legislation as these amendments seek to do.
I recognise that the 2004 draft Bill provided for a care plan that related to compulsory treatments under the Act. Personally, I am not convinced that that was a wise route to take and I am glad that the Government have decided to change course. In my view, care planning for people with mental disorders needs to cover both health and social care needs and not be restricted just to the compulsory treatment elements.
I remain somewhat sceptical, as a former manager, of how much operational sense it makes to provide for this in legislation. It is a matter for guidance, training and codes of practice, and it is certainly one to be emphasised in national service frameworks. Alongside this, if you are trying to manage a good service, you would use staff appraisal and performance management techniques to drive up quality. For some of us who have managed in this area, these approaches are likely to be more effective than crafting words in legislation. The bad news is that passing legislation which tries to change behaviour in professionals does not always achieve its objectives, and there are tomes of evidence to show this. In any case, what constitutes good care planning is itself likely to change. What we say about this area today is very different from what we would have said in 1983. That is why I think these are very much matters for guidance and training.
I do not delude myself that all is right in the world in this particular area of care planning. It is right that the Government are conducting a review of the care planning approach and have been seeking views on it. That is the right approach. I find myself therefore strongly supporting the view of the joint scrutiny committee in its report that the care planning approach is important and needs to be comprehensive, but is not something to be enshrined in law.
I sympathise with the views expressed by the noble Baroness, Lady Barker. As I understood her point, the code of practice is not quite up to snuff in this area. It might be wise if the Government thought a little more carefully about how they deal with the care planning approach in the code of practice and in guidance. I suspect that that is what they would do after completing this review, for that seems the appropriate way to deal with this important subject, rather than enshrining it in legislation.
Baroness Royall of Blaisdon: I am grateful to your Lordships for raising this important subject. As noble Lords have said, it is of the utmost importance to ensure that care planning is robustly and consistently undertaken for every SCT patient, while ensuring that
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I agree entirely with the noble Lord, Lord Patel of Bradford, that the care programme approach must underpin supervised community treatment, and that it is a fundamental part of care planning. It should and will do that, but I do not agree that giving statutory force to the care planning process, as proposed by the amendment, is the best way to achieve that. Indeed, giving the CPA statutory force would require legislation to be so widely drafted as to be meaningless.
The draft illustrative code of practice that we have published sets out the process through which practitioners should work in preparing a patient’s discharge from hospital on to SCT, and recommends that the CPA is worked through for every patient. It makes clear, among other things, that the patient—and, where appropriate, their nearest relative and carers—should be closely involved in the care planning process. Officials in the Welsh Assembly Government have indicated that the code of practice for Wales will cover similar matters.
I heard what the noble Baroness, Lady Barker, said about the code of practice. I raised those very issues with officials this morning, as it is not clear and not adequate at the moment. Yet we must remember that the code of practice is itself up for consultation, so this is a good opportunity for the noble Baroness and other noble Lords concerned about the issue to discuss with officials how the code of practice can be improved by taking their concerns into consideration.
I entirely understand the concern expressed by the noble Lord, Lord Patel, that the CPA is sometimes not consistently applied—for every patient, that is—as that can have serious outcomes. However, I do not believe that creating a statutory care planning process is the best way to achieve improvement. It would add little to the quality of application in care planning, which, as my noble friend suggested, is the real issue here. The Government are reviewing CPA in England to look at how patients with the highest needs—as those cases highlighted in the MN review and other inquiries mentioned—can best be targeted. The review will aim to streamline the current care planning process and give patients more control over their care and treatment. Consultation is under way and due for completion in February.
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