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This is, of course, a challenge. We are doing better and we will continue to improve in the future. But this situation cannot be resolved by the waving of a magic wand. The acceptance of a new clause will not deal with these problems overnight.

Lord Carlile of Berriew: I am grateful to the Minister for his customarily courteous and full reply to the amendments. As regards his reply to Amendment No. 30, I think the Government are ducking an issue which has faced us for many years. Our already overstuffed prisons are going to contain a higher and higher proportion of people who are mentally ill and we face the prospect that, within a few years, we will be using prisons as a surrogate for psychiatric hospitals. That position is not acceptable to me and my noble friends and, in my view, it ought not to be acceptable to the Government.

Lord Hunt of Kings Heath: Notwithstanding the challenges that we face, does the noble Lord concede that considerable progress has been made in recent years in starting to tackle these issues?

Lord Carlile of Berriew: I certainly accept that progress has been made, the most obvious being the transfer of responsibility for health in prisons to the National Health Service. But that has not produced a

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proportionate result in people who are mentally ill being transferred out of prison into mental health establishments. That is the issue I was addressing earlier and which leads me to the view that prisons will soon be a surrogate for psychiatric hospitals.

In relation to Clause 29, I say, with great respect, that the Minister’s last point was a false one. He is suggesting that if the Government were to accept the amendment, mental health trusts would go running to the Government and effectively pass the responsibility for decision-making to them. That misses the point of the amendment, which is designed to avoid a real situation that—despite whatever improvements there have been—arises in Crown Courts up and down England and Wales on a regular basis, certainly on a weekly basis, possibly on a daily basis.

One of the aims of the amendment is to ensure that mental health trusts would understand clearly that they have a duty to respond to sound case management by judges. On the whole, judges exercise rational decisions about how to progress cases. If a judge requires a particular form of report relating to the mental condition of someone who is appearing before him but finds that that intention is frustrated by no hospital being made available to deal with that intention, then nothing less than compulsion on the National Health Service to answer the judge’s questions is satisfactory. It would make for far better case management.

Lord Hunt of Kings Heath: I hope I can explain a little more why I thought it might lead to a perverse consequence. I would have thought the temptation for the courts would be to seek intervention from the Secretary of State on a large number of cases. The impact of that would be that the Secretary of State would in many cases be directing issues that, in the end, have to be resolved at a local level. I would be concerned about doing anything that took away the actual responsibility of the local mental health services to resolve those issues.

Lord Carlile of Berriew: The noble Lord really has missed the point. The idea that judges would expect any response from a request for intervention from any Secretary of State is, frankly, ridiculous. Judges know perfectly well that if they ask that sort of question, they are likely to receive nothing for a very long time.

The aim of this exercise is that when a judge sees a potential Mental Health Act disposal but is frustrated by services to the extent that no one is prepared to provide the facilities for that disposal, it should be compulsory. I would have thought that was a simple and straightforward point. It is designed to meet what is now called the “overriding objective” in all criminal cases that there should be a just disposal of the case.

I will withdraw the amendment, but in a sense of frustration, and in the hope that the Minister will look at this as a practical and simple question that could be answered without introducing that great swathe of changes to the law in the 2004 Bill in relation to the criminal justice system. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 30 not moved.]

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Earl Howe moved Amendment No. 31:

“(a) may be in need of care or treatment for his mental disorder and is living in any place within the jurisdiction of the justice, (b) access to that place is necessary for the purpose of establishing whether or not he is in need of such care or treatment; and (c) it has not been possible to gain such access without a warrant”.”

The noble Earl said: Amendment No. 31 takes us into some outdated and antique corners of the law. Sometimes it is necessary for the police to obtain a warrant in order to gain access to someone who is believed to be suffering from a mental disorder and to be in need of care and treatment. Section 135 of the 1983 Act is intended to deal with that situation. However, it is quite obvious when you read the first subsection of it that it comes from a bygone age. It is based on the equivalent provisions in the Lunacy Act 1890 and the Mental Deficiency Act 1913, and neither its language nor its criteria reflect the world we live in today. The amendment would remove some pretty stigmatising and inappropriate language and bring the criteria in line with the rest of the Act. It would also make it clear that the provision should be invoked only when attempts to obtain access without a warrant, using non-forcible means, have failed.

Non-forcible entry is the subject of Amendment No. 34, which is grouped here. It seeks to provide a right of non-forcible entry into private premises for an approved mental health worker, doctor, police officer and ambulance personnel where this is necessary in order to effect an assessment for possible compulsory action under the Act.

I believe that the noble Baroness, Lady Barker, will be speaking in greater detail about the amendment. I simply record my full support for it. I beg to move.

Baroness Meacher: I endorse the comments made by the noble Earl, Lord Howe. As I understand it, the only way you can operate Section 135 on the ground is if the magistrates are willing to bend the law. I am sure the Minister would not wish to continue to put magistrates in that position. On that basis, I strongly support this fairly technical amendment.

Baroness Barker: I want to clarify the purpose of Amendment No. 31. As the noble Earl, Lord Howe, said, it concerns giving ASWs, AMHPs, police officers and ambulance crews vital access to carry out assessments. It is assumed that Section 115 of the 1983 Act gives that right, but that section applies only to the inspection of premises in which a person who is already known to be mentally disordered is living. In addition, in recent years it has become obvious that police forces are rather uncertain about their rights of entry into private premises without a warrant when they are requested to accompany an ASW. The comments of the noble Baroness, Lady Meacher, reflected that.

The amendment clarifies the position. It is a small technical amendment which may appear rather

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inconsequential compared with the big issues that we have been debating, but it is probably one of the most important. I have debated this Bill outside the Chamber with many people. One of their biggest fears about mental health legislation is the way in which it plays out practically and, particularly, how it plays out in relation to ASBOs and people in their neighbourhoods who behave dangerously. They see the police being reluctant to take action. Although the amendment is very minor and somewhat technical, it covers an important public safety point that may be misconstrued. Therefore, I hope the Government will look on it with some sympathy.

Lord Patel of Bradford: I support Amendment No. 31. I believe that its merits are self-evident—the Minister should not require my intervention to see them. However, we have heard much in the course of our debates about the stigmatising effect of being made subject to the powers of the Mental Health Act. Here is an opportunity to include a small measure that could ease the stigma of the Act.

The Mental Health Act Commission drew attention to the stigmatising language of Section 135 of the 1983 Act in its last biennial report to Parliament. The amendment seeks to render into modern language the current formulation of the criteria for a warrant, which at the moment contains the unnecessarily offensive notions of “mentally disordered persons” and,

If the Minister is minded to reject the amendment, I ask him what is “proper control” of a person suffering from a mental disorder, and who is entitled to exercise it. It seems to me that the notion of proper control is both outdated and inexact and should be replaced.

As my noble friend Lady Murphy, an eminent historian of the history of psychiatry, knows better than I, and as the noble Earl, Lord Howe, has stated, the origins of many of the 1983 Act’s provisions can be traced back to the Lunacy Acts of the 19th century, if not to older measures. The phrase “proper care and control” can be found in Section 13(3) of the Lunacy Act 1890.

There is nothing necessarily wrong with the continuance of key powers in this way. After all, mental health legislation always serves the same basic purpose of determining rules about coercive interventions. However, it means that we have to be careful that we are not unwittingly perpetuating 19th century attitudes towards mental disorder. Many changes have been made to the wording of provisions as they have been translated from one Act to its successor over the past century. For example, we no longer have,

as the 1890 Act would have them. That is a good example of a piece of Victoriana that now needs to be put aside.

4.30 pm

Baroness Royall of Blaisdon: Amendments Nos. 31 and 34 concern a right of access to individuals in private premises. I shall deal first with Amendment No. 31.

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Under Section 135 of the 1983 Act, a magistrate can issue a warrant based on information supplied by an approved social worker—approved mental health professional—which authorises a police constable to enter premises, using force if necessary, to remove a mentally disordered person to a place of safety for assessment. The purpose of the assessment is to establish whether the person needs to be detained in hospital for assessment or treatment, or whether other arrangements need to be put in place for his treatment or care. When the police constable executes such a warrant, he must be accompanied by a doctor and an approved social worker—approved mental health professional. If the person is removed to a place of safety, he can be kept there for no more than 72 hours.

I have sympathy with the intention of the amendment as outlined by the noble Earl, Lord Howe, which is to update the language of Section 135. I certainly accept that some of the existing wording, as the noble Lord, Lord Patel, described, is outdated, indeed stigmatising. However, the effect of the amendment may not be what noble Lords envisage. On the one hand, it would broaden the group of people to whom Section 135 could potentially apply. This is because it would dispense with the current criteria of neglect, ill-treatment, lack of proper control or an inability to care for oneself, and replace them with a condition that there should simply be an indication that the person was in need of care or treatment for a mental disorder. On the other hand, the amendment would narrow the circumstances in which the intervention of a police constable would be appropriate. This is because it specifically links the need for care or treatment to the person’s mental disorder. Under the existing provision, the ill-treatment, neglect, lack of proper control or inability to care for oneself need not be linked to the existence of the mental disorder from which the person is suffering.

The use of Section 135 involves a considerable interference in the mentally disordered person’s home and family life. The noble Baronesses, Lady Meacher and Lady Barker, spoke about the uncertainty surrounding rights of entry, but I am not aware of any concerns that the Bill operates in such a way as to make it difficult to get help to people who appear to need it. It would not be desirable to amend it unless there is a compelling reason to do so. I am not convinced that Amendment No. 31 would result in an improvement for patients. Indeed, it may have unforeseen repercussions because of its material effect on the wording of Section 135. However, having listened to the views expressed today, I shall take away the amendment for further discussion, although I do not promise to move my position on it. I will discuss it further, because what was said about the wording being stigmatising is important.

Amendment No. 34 would allow an approved mental health professional, and any other person whom they ask to accompany them, to enter any premises to interview a patient before deciding whether an application should be made to admit the patient to hospital under the Act. Section 115 of the 1983 Act already gives an AMHP the power to enter a

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patient’s premises if they have a diagnosed mental disorder. Amendment No. 34 would provide a similar power where it is not clear that the patient has a mental disorder. Section 115 does not allow forcible entry, but nor would the power proposed by the amendments. However, as in the amendment, a person obstructing an AMHP using the power under Section 115 would be committing an offence.

I have real concerns about a power that would allow an AMHP, and any other person that he or she identifies, to have the legal right to enter premises when there is no reliable evidence that the person has a mental disorder. Requiring a person to give entry to their home is a serious matter and it should not be allowed on the basis of insubstantial evidence of its necessity.

If an AMHP needs entry to premises to interview a person without a diagnosed mental disorder, they can ask for permission to enter. This would clearly be the most appropriate and professional way to tackle the problem. If access is refused, and it is necessary to enter premises forcibly, a warrant can be sought from a justice of the peace under Section 135 of the 1983 Act, to which I referred earlier. The provisions of Section 115, in conjunction with those of Section 135, are sufficient to provide AMHPs with the powers that they need to enter premises for the purpose of interviewing a patient, while safeguarding the right to privacy of an individual, who may not even have a mental disorder.

As I mentioned, this amendment would also give a police constable, a doctor or any other person whom the AMHP asks to accompany them the power to enter premises to support the AMHP in interviewing a patient. I recognise that at times an AMHP will need to enter premises where there may be a risk to themselves if they go unaccompanied—for example, when the patient is reported to be acting aggressively. However, there is already provision under Section 17(1)(e) of the Police and Criminal Evidence Act 1984 for a police constable to enter premises without a warrant if such action is required to save “life or limb” or to prevent “serious damage to property”. Alternatively, a warrant could be sought under Section 135.

We must strike a balance between enabling the professionals to carry out their functions in safety and the rights of an individual to privacy and security in their own home. I do not believe that it would be appropriate for a potentially wide range of people to have a right of entry to private premises on the say-so of an AMHP, without any evidence that a person has a mental disorder and without a warrant. I therefore ask noble Lords to reconsider the amendment.

Baroness Masham of Ilton: There is now a system of out-of-hours doctors at nights and weekends. Would the doctor who might be called on in this case, under the amendments, be an out-of-hours doctor?

Baroness Royall of Blaisdon: I shall have to seek guidance on that. It would seem logical, but I really do not know. I shall write to the noble Baroness and copy the letter to all noble Lords present.

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Baroness Masham of Ilton: If that were the case, it should be in the doctor’s contract, if it is not already.

Baroness Royall of Blaisdon: I will certainly take on board that point.

Earl Howe: I am grateful to the Minister for her response on Amendment No. 31. I hope that she will have a careful look at the wording. The noble Lord, Lord Patel, was entirely right to draw attention to that wording, which I did not read out. I am glad that he did, because I genuinely think that this is something that needs changing—if not in the precise way that we propose, then in a similar way.

As for Amendment No. 34, I confess to being disappointed, since in recent years police forces are more and more uncertain about their right to enter private premises without a warrant when they are asked to accompany an approved social worker, either to protect the social worker or anyone else during the assessment, or to assist with an admission at a hospital. If there is confusion of that sort, we surely want to iron it out. It has resulted in a number of instances in which requests for help have been refused or warrants have been issued inappropriately under Section 135. The purpose of the amendment was to clarify the position. The intention was not to extend the rights of the police inappropriately. However, I note what the Minister said. Clearly, this is a matter that we shall need to consider. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Williamson of Horton moved Amendment No. 32:

(a) to apply for admission for assessment under section 11(1) above; (b) to apply for admission for treatment under section 11(1) above; (c) to apply for guardianship under section 11(1) above; (d) to be informed of an admission for assessment under section 11(3) above; (e) to object to an application for admission for treatment or a guardianship application under section 11(4)(a) above; (f) to be consulted before an admission for treatment or guardianship under section 11(4)(b) above; (g) to require a local authority to make arrangements for an approved social worker to consider the patient’s case and to be given written reasons if an application is not made under section 13(4) above; (h) to discharge the patient from detention or guardianship under section 23(2) below; (i) to apply to the Mental Health Review Tribunal under section 66(1) below;

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(j) to be informed of the intended discharge of a patient under section 133(1) below; (k) to be involved in aftercare planning under section 117 below; and (l) to be furnished with a copy of information relating to community patients under section 25 of the Mental Health Act 2007.””

The noble Lord said: I assure the Minister that I do not move this amendment with a deep sense of frustration, which is a phrase that I have heard around the Committee today. Not at all! Monday was deep frustration day, but this is Wednesday.

I recognise that if Amendment No. 40, which is grouped with Amendment No. 32, is agreed, the definition of “relative” and “nearest relative” would be amended, giving the patient the right to nominate, if he or she so wishes, a named person who could fulfil the role of nearest relative. But subject to that—and I realise that the noble Baronesses, Lady Barker and Lady Neuberger, will speak to Amendment No. 40 later—I shall concentrate on the substance of Amendment No. 32.

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