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Of transferred remand prisoners, as with remand prisoners generally, it is not always the case that they are destined for custodial disposal, even to hospital. Although statistics do not tell us what happens to these patients, we can see that, once they have their day in court, something like one quarter of remand prisoners who are transferred to hospital under the Act’s powers end up with some form of community disposal. In such a context, I am sure that the Minister will agree that all measures that might encourage the courts to avail themselves of the least restrictive option consonant with justice and public safety ought to be adopted. It would be helpful for the courts to survey the mental health legislation and see, among the options for mentally disordered offenders or accused persons, an option to remand on bail under the Mental Health Act 1983.

Lord Mackay of Clashfern: I have always been conscious of the difficulties that the criminal justice system faces in relation to people with mental incapacity and disorder. This seems a practical suggestion, and it is interesting that it appears to have been included in the two draft Bills already mentioned. I was wondering why the Government have dropped it from this measure.

Lord Hunt of Kings Heath: This has been a short introduction to the next group. Clearly there are important issues in relation to the mental health of people who fall within the criminal justice system. It is important to deal with people in the most effective way possible, including what happens in court and the relationship between prisoners and the mental health service. We shall debate some of those wider issues in the next group.

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Members of the Committee have commented that the amendment comes from the original 2004 Bill, and the noble and learned Lord asked why that provision is not in this Bill. The 2004 draft Bill contained a comprehensive chapter consolidating court powers to remand. This is but one aspect of that consolidating chapter. The Government took the decision in the light of the extraordinary public debate and the work done by the scrutiny committee, so ably led by the noble Lord, Lord Carlile, that we would not bring forward a comprehensive Bill, as proposed, but would focus on a number of issues amending the 1983 Act. It is worth saying that the 2004 Bill exercised many people’s minds, but one of the messages that came from stakeholders was concern about its length and complexity. We ultimately decided to introduce a much shorter Bill, which has inevitably meant that some desirable aspects of the original Bill—although, as the noble Lord, Lord Patel, said, not every aspect commended itself to noble Lords—are not in this Bill. I know that noble Lords have cherry picked some amendments from the 2004 draft Bill, but that is essentially why this provision does not appear.

There are two issues: first, what the law currently allows; and, secondly, what can be done to improve good practice. We have heard of instances where the system is not working and falls down, and there are clearly lessons to be learnt on how to improve it. The noble Lord referred to better case management, which seems an excellent way to describe it. As so often in mental health services, however, the solution is to improve management: to ensure that things are better organised and resources better deployed.

The amendment would make explicit provision for the courts to require a medical report when remanding a defendant on bail. It would apply where the court had medical evidence suggesting a defendant was mentally disordered. This is unnecessary because the court is already required to take account of a defendant’s mental state before sentencing, under Section 157 of the Criminal Justice Act 2003. It will often wish to order the defendant’s admission to hospital to ensure that a report on their condition can be completed. Sometimes a court will be satisfied that a report can be effectively prepared with the defendant simply remanded on bail. That can already be done. Under the Bail Act 1976, a court may remand a defendant on bail and require his co-operation with any inquiry intended to inform the trial process. Courts do that, on occasion, when they need to obtain medical reports.

The combined effect of the Bail Act and the 1983 Act is that courts have a wide range of powers to obtain medical reports on defendants, either following admission to hospital or on bail. There is also a problem in singling out this provision from the 2004 draft Bill, and confusion as to why that power would be moved from the Bail Act when we are not otherwise amending court powers to remand.

I was interested in the views of the noble Lord, Lord Carlile, on how the system operates and case management. I am certainly prepared to look at this matter, not so much in terms of legislation but to see

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what can be done to improve the situation, if the noble Lord would care to communicate with me further.

Lord Carlile of Berriew: I am astonished and wretchedly depressed by the Minister’s answer. As the noble Earl, Lord Howe, pointed out, legislation has twice been drafted including a provision of this kind.

I do not see that a meeting with the Minister will ram this point home any further, but the amendment was introduced because it is clear that case management can be achieved only if the toolkit given to the judge contains the requisite tools. The Government are effectively saying precisely what judges find unattractive: fiddle your way around the edges of various provisions such as the Bail Act, and you may be able to find something into which we can fit a direction for a medical report of roughly this kind to be provided. That is not a good case management tool; it is like asking one to put in a screw with one’s teeth.

I simply do not understand why the Government are so reluctant to adopt a simple measure that they have twice thought necessary. The whole point, which I tried to point out but which the Minister did not answer, is that, because of new sentencing provisions, issues of risk and dangerousness are now at the top of the agenda in a huge number of cases in which they never featured before. This amendment—probably unchanged, as it appears to me to be very full—would enable the judge, without fiddling around the corners of the Bail Act, to ensure that such reports as were necessary could be made available.

I appeal to the Minister—and I welcome his willingness to take another look at this—to examine the issue again, because it seems to me and to others who have been dealing with this point, and indeed to the Joint Committee, that it cannot be dealt with without legislation. So with a sense of frustration that I had hoped to avoid so early in the afternoon as this, and with the fervent hope that the Minister will have another look at the matter, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carlile of Berriew moved Amendment No. 29:

The noble Lord said: This amendment, with which we are considering Amendment No. 30—and I have got that right this time—deals with common

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situations that arise in courts. It is a very common experience, and one that causes massive frustration and anger to judges, that disputes can arise as to which hospital an offender or person held on remand should be sent. Typically, as the committee commented at paragraph 263 about whether medium or maximum security is required, if the parties cannot reach agreement, in particular if the medical people involved and the hospitals cannot reach agreement, there is currently no means of resolving the matter.

In the era when the celebrated Crown Court judge Sir Robin David QC was the senior judge on the Cheshire part of the Wales and Chester circuit of blessed memory, of which my noble friend Lord Hooson used to be a very distinguished leader, that judge used to refuse time and time again to pass sentence on a person appearing before him because he demanded that someone should decide who was going to provide the medical report. But sometimes Sir Robin and other judges—and I cite him only as a very distinguished example—used to be driven into the situation in which they were forced to make what they regarded as an inappropriate disposal, particularly by sentencing someone to imprisonment.

The Joint Committee recommended that where a court wishes to send an offender or person on remand with a mental disorder to a hospital and hospital trusts cannot agree to which hospital the person should be sent, the Bill should contain the sort of statutory duty that Amendment No. 29 provides. This, therefore, is another case management issue. It is one in which the system is broke, it needs fixing and it is a simple measure to fix it. I hope, though I am beginning to doubt it, that there may be a chink of light shown in the door when the Minister comes to reply.

Perhaps I may say a word about Amendment No. 30, although I am sure that the noble Earl, Lord Howe, will speak to that too. The 2004 draft Bill considered by the committee had as Clause 137 a clause that broadly replicated an existing provision—Section 47 of the Mental Health Act 1983. It is a well known provision that allows the Home Secretary to make a direction to transfer a prisoner or person on remand with a mental disorder to hospital for treatment. It is exercised too rarely in the judgment of people like me who visit prisons from time to time and become aware of the number of people in prison who might well justify such a transfer, but it is a very important power. The person concerned has to meet a number of conditions and the Secretary of State, who is not a medical practitioner generally, has to be of the opinion that it is in the public interest to make such a direction. The aim of this exercise is to ensure that a person who meets the relevant medical conditions should be transferred to hospital and that that transfer should be a duty on the Home Secretary.

When I have discussed the matter with various people and stakeholders, the issue of resources has always arisen. I suspect that the provision is probably resource-neutral. The cost of keeping a mentally disordered person in prison is extremely high and is usually disruptive to the prison concerned because it involves moving staff away from their normal duties

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to deal with the prisoner. Hospitals are obviously more used to dealing with people with mental disorders of the general nature under discussion. I believe that the worst one could say about resources is that moving these people to hospitals, though it might require some shift of resources, would be resource-neutral. I beg to move.

4 pm

Earl Howe: My name is attached to Amendments Nos. 29 and 30 and I associate myself fully with the remarks of the noble Lord, Lord Carlile. I want to speak in particular to Amendment No. 30. It reflects the widely held concern that prisoners with mental health problems are not receiving the specialist treatment that they need. On the Government’s own figures, quoted last year by the Home Office Minister Fiona Mactaggart, 90 per cent of prisoners have at least one mental health disorder, including personality disorder, psychosis and neurosis. Most have common mental health problems such as depression and anxiety. A smaller proportion—although much bigger than average—have more severe problems such as schizophrenia or a personality disorder. Many have a combination of things wrong with them.

Over many years, there has been a consistent policy of diverting mentally disordered offenders from prison to hospital. Despite that policy, we are still seeing persistently high numbers of offenders languishing in the prison system with their mental health needs unmet. The annual report of the Chief Inspector of Prisons in 2003 estimated that 41 per cent of prisoners in healthcare centres should have been in secure NHS accommodation. In 2004, it was discovered that at any one time at least 40 prisoners assessed as needing a transfer to hospital had been waiting more than three months for it to take place.

There is a basic problem. The ethos and culture of prisons are not about health and therapy; they are primarily about containment. In many prisons, although not all, healthcare is not top of the list or anywhere near it. The bottom line is that prisons are not the place for people with mental health problems because they are unable to provide appropriate care. That cannot be right. Surely we believe that everyone in this country with a mental health problem, wherever they are—whether they are in the community or in the criminal justice system—deserves the same standard and quality of care.

Let us imagine a prisoner suffering from a mental illness that is sufficiently serious to warrant a transfer to hospital. Under the 1983 Act the decision to transfer a patient lies with the Home Secretary. Section 47 states that the Home Secretary,

transferred to a specified hospital. The problem with this provision is that it is very broadly worded. The courts have found that the Secretary of State is never obliged to act, even if he thinks that the necessary preconditions have been fulfilled.

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The fact is that Section 47 has not proved an effective mechanism for transferring prisoners with mental health problems to hospital for specialist care. It needs amending to something much tighter if the difficulties to which I have referred are to be overcome. So the amendment is proposing that where two responsible clinicians agree that a transfer to hospital is needed, the Home Secretary should be under a duty to order the patient’s transfer. That was in fact a recommendation of the joint scrutiny committee chaired by the noble Lord.

Up to now the Government have opposed the reform on the grounds that it would require the Home Secretary to direct a transfer irrespective of the merits of the individual case or the public interest. I am sorry that they take that view. I see in that argument the signs of exactly the problem to which I referred a minute ago: that where we have an administrative arm of the state—in this case the Home Office mental health unit, the main focus of which is on public protection rather than clinical matters—the whole thing becomes an exercise in how to maintain security and we get, typically, security overkill. The inevitable result is long delay, and, alongside that, the local PCT has to be strongly persuaded that it wants to spend its money on what it sees as an inappropriate admission. I suspect that the Minister has a note in his brief urging him to resist the amendment. I simply ask that he take a fresh look at it in the light of the problems that I have been talking about; not the least of which is that the law as we currently have it is letting down large numbers of individuals with sometimes acute and serious mental health needs.

Lord Patel of Bradford: My Lords, I speak to Amendment No. 29 and shall be extremely brief. Home Office circular 66/90 exhibits misplaced optimism in stating:

for providing a bed for remanded patients. There is indeed scope for disputes, and we are informed that they are frustrating the smooth working of the Act as a diversionary mechanism for mentally disordered offenders. To set a precedent in other legislation for the Secretary of State to arbitrate or, rather, rule over disputes between authorities about responsibility for individuals, the Government should take such powers here and put an end to such disputes. I support the amendment wholeheartedly.

Lord Hunt of Kings Heath: My Lords, this interesting debate has been short but extremely important. I do not underestimate the challenges with the current system nor the challenges that will be faced in the future. My dividing line with the noble Earl and the noble Lord is that many of the problems they have identified are problems of case management and practice, as the noble Lord suggested. A number of such amendments are seeking to include in the Bill issues that come down to effective management and provision of services at local level. I also believe that it is impractical to take away the Secretary of State’s discretion, as is proposed, for example, in

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Amendment No. 30. The Secretary of State has to have discretion to consider all the matters involved, including those raised by the noble Earl, as well as the question of what facilities are available.

I believe that finding the right hospital placement, which is extremely important, depends on good practice and local arrangements. I am doubtful about whether it would be wise to establish a mechanism whereby central government through the Secretary of State intervened in those decisions. Of course I understand that there are frustrations in the current system, but I say to noble Lords—and it is disappointing that this has not been remarked on—that there have been and are taking place considerable improvements in the health services provided to prisoners and the facilities for patients who are so transferred. The Government are working very hard with local health service commissioners and providers to ensure that the right facilities are available. There has been a significant increase in the availability of medium secure beds, from 2,380 in 2001 to 3,330 last year. We hope that that will ensure that beds can be found more easily for remand prisoners who are likely to need secure beds.

I understand that there will be situations where there may be discussions and disagreements about whether a named hospital could provide the right level of security as well as the right treatment. I say in defence of those hospitals that they have to resist taking responsibility for patients for whom they do not believe they have a safe and appropriate service. But in the end, this matter has to be resolved through discussion at a local level.

I invite the noble Lord to consider that if, because of the direction power he wishes to give the Secretary of State, the risk is that in these difficult situations it is possible that local health services will seek not to resolve issues as they do now but refer more and more decisions up to the Secretary of State, that would be very unsatisfactory. It is much better to engage with local health service providers, encourage the continued development of services that we are seeing and do everything we can to make sure there is the closest possible co-operation between the courts and the health service. I do not think that relying on a direction power of the Secretary of State is really a sensible way to resolve the problem.

Amendment No. 30 is concerned with the treatment of offenders who have been sentenced to prison and then need to be transferred to hospital for specialist treatment. The noble Earl, Lord Howe, referred to Home Office figures showing that 90 per cent of people have a history of mental health and/or substance misuse problems. That is a huge challenge for the Prison Service and the health service. The Government have sought to meet that challenge by improving the state of the health services available to prisoners and the involvement of the health service in prison health services. The more we can do for prisoners’ health within prison, the better the outcome will be when they leave prison, and problems can be dealt with much more quickly than has previously been the case.

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We have set up 102 mental health inreach teams in prisons. This year, for the first time, all prisons should have access to these services. There are 360 more whole-time equivalent staff employed on mental health inreach provision, exceeding the NHS planned commitment for 300 in post by the end of 2004. Money has been spent on investing over three years on mental health awareness training for prison officers. We are making nearly £20 million a year available for mental health inreach services.

People who are mentally ill and too disturbed to remain in prison should ordinarily be transferred to hospital as soon as possible. Once a prison has notified the Home Secretary that a prisoner requires treatment in a mental hospital in which he may be detained, the Home Secretary is under a duty expeditiously to take steps to obtain medical advice and, if that advice supports transfer, to take reasonable steps to effect it. But he would not be required to act against evidence that no appropriate hospital place was available or that public safety or public confidence would be put at risk. That perfectly sensible, reasonable discretion has to be given to the Home Secretary.

4.15 pm

The role of medical practitioners, of course, is fundamental to determining the suitability of a prisoner for transfer to hospital, but the amendment would give any qualified medical practitioners the final say in directing the transfer of prisoners. That would not be sensible in the best interests of public protection and potential patients, or in the allocation of NHS resources. Surely it would be nonsensical if a doctor specified a hospital that does not have the capacity to receive the patient or was unable to do so without endangering other patients.

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