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Last month, the three-year National Social Inclusion Programme, which co-ordinates cross-government implementation of the action points in

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the SEU’s report, provided an update on progress. The Action 16 group leading the family, children and carers work is working with the Social Care Institute for Excellence and the National Institute for Health and Clinical Excellence to develop cross-cutting guidance for health and social care adult and children’s services. It has also completed a national review of hospital contact and support arrangements.

In summary, we believe there is already a legal framework to ensure that children’s needs are assessed and met. However, we recognise that practice in this area must be improved, hence the need to cover it clearly in the code of practice—not just in the children’s chapter—and to continue policy development in this area. Indeed, we would welcome co-operative work with YoungMinds, Barnardo’s and the NSPCC to ensure that the code of practice is, in their view, adequate. I urge my noble friend Lady Gibson to consider withdrawing her amendment.

Baroness Gibson of Market Rasen: I thank noble Lords who have taken part in this debate. It was heartening for me to hear the spokespeople for both the Conservative and Liberal Democrat parties supporting this amendment.

My noble friend accepted that if there are safeguards in other Acts then they are obviously not working; indeed, the noble Baroness, Lady Walmsley, gave us important examples of how awfully they are not. However, I listened carefully to what my noble friend said and will obviously give this matter further thought before the next stage of the Bill. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 36 had been withdrawn from the Marshalled List.]

[Amendment No. 37 not moved.]

Schedule 2 agreed to.

Clauses 21 to 24 agreed to.

Lord Williamson of Horton moved Amendment No. 38:

(a) help in obtaining information about and understanding— (i) what medical treatment is being provided to the patient; (ii) why it is being provided; (iii) under what authority it is being provided; (iv) the requirements of this Act which apply in connection with the patient’s treatment; and (v) the rights which can be exercised by or in respect of him under this Act, and (b) help (by way of representation or otherwise) in exercising those rights.

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(a) only if requirements specified in the regulations are met in respect of him; (b) only if requirements specified in the regulations are met in respect of any person with whom arrangements are made for him to act as an independent mental health advocate; and (c) only in circumstances otherwise specified in the regulations. (a) a patient who is liable to be detained by virtue of an application for admission for assessment or an application for admission for treatment under Part II of this Act; (b) a community patient; (c) a patient who is removed to a place of safety within the meaning of section 135— (i) in the execution of a warrant under section 135; or (ii) by a constable under section 136; (d) an accused person within the meaning of section 35 remanded under that section to hospital for a report on his mental condition; (e) an accused person within the meaning of section 36 remanded under that section to hospital for treatment; (f) a patient in respect of whom there is in force— (i) a hospital order; (ii) a transfer direction; (iii) a hospital direction; (g) a patient, not being liable to be detained under this Act, who is asked to consent to any form of treatment to which section 57 applies.””

The noble Lord said: In moving Amendment No. 38, I will also speak to Amendment No. 39. I believe these amendments, which relate to independent mental health advocacy, were originally tabled by a Labour Peer, the noble Baroness, Lady Morgan of Drefelin. She was subsequently promoted to be a government Whip so had to withdraw her name. I considered that the question of advocacy was most important, and that it was most desirable for the Committee to have an opportunity to debate it. I therefore tabled these amendments in my name, and the noble Lord, Lord Patel of Bradford, has added his to them. I am sure that the Minister will agree that the amendments are so good that it is no surprise that the noble Baroness, Lady Morgan, was promoted to the government team.

For good order, I just add that we have already debated Amendment No. 41. While I am not referring to it specifically again, it refers to advocacy for young people, and in the context of what we are discussing we should be aware that that amendment was tabled by the noble Baroness, Lady Howells of St. Davids, who spoke movingly on it earlier. So, there is a bit of a package even though that is not for discussion now.

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The purpose of these amendments is to ensure, first, that the patients subject to compulsory powers under the Mental Health Act 1983 have a statutory right to an independent mental health advocate; secondly, that they are made aware of their right to independent advocacy when decisions are being made on their care and treatment; and, thirdly, that they can meet their advocate in private.

Amendment No. 38 also extends the definition of qualifying patients beyond the groups that the Government identified in the 2004 draft Bill. It would now include patients under Sections 135 and 136 of the Act, and those undergoing serious medical treatment such as electro-convulsive therapy. The “qualifying patients” definition is important. In this amendment, it would include particularly those subject to police powers; it goes without saying that a person who might find himself or herself in a cell or be subject to a warrant delivered by a policeman is, evidently, one who could benefit from the advice of an advocate. I wanted to cover that, so the amendment proposes it.

More generally, there are two reasons in favour of a statutory right for advocacy. First, there is the human element. We have all recognised in earlier discussions on this Bill that those admitted to hospital against their will are likely to be fearful and probably unsure or, in some cases, completely confused about why they are there and about their future. In many cases, the need for independent support is evident. Secondly, there is the protection of the interests of those deprived of their liberty. An advocate could concentrate the patient’s attention on communicating their interests and, where appropriate, allow them to exercise their rights—for example, on appeals. The basic point is that the advocacy for detained people is different from that in general or for informal patients. I beg to move.

Lord Patel of Bradford: I support the noble Lord, Lord Williamson of Horton, and will elaborate on some of his points. The Mental Health Bills of 2002 and 2004 were great freighters of legislation, aboard which there was much that may have been of dubious value and some things that were positively harmful. Many in the mental health field were relieved when they were scuppered. I see my job this afternoon as something like an act of reclamation, to bring up from the sunken hulks of these Bills their one real treasure—the promise of a statutory right to advocacy. That was a feature of the 2002 and 2004 Bills that many practitioners, quite rightly, viewed as one of the most positive proposals for a law fit for the 21st century.

The purpose of this amendment is therefore to ensure that all patients subject to compulsory powers under the Mental Health Act have a statutory right to an independent mental health advocate, that they are made aware of their right to independent advocacy when key decisions are being made in respect of their treatment, and that they have support if they allege abuse. The general case for advocacy for mental health service users is self-evident, and I shall not dwell on what is not a disputed matter. Although we

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must obviously not assume that mental disorder inevitably robs a person of their capacity to speak for themselves, psychiatric hospitalisation and its sequela is perhaps an unavoidably disempowering experience—especially when it is imposed through the coercive powers of mental health legislation.

The following evidence was given to the Joint Committee by James Hargreaves, a hospital chaplain:

I add that the Mental Health Act commissioners continue, on their visits, to raise frequent questions as to whether, and to what extent, detained patients have been made aware of their legal status and rights under Section 132 of the Act. While the MHAC does what it can to make services fulfil their legal duties in giving patients information, even where services attend closely to that legal duty—and nurses are diligent in both explaining patients’ rights to them and providing written information—it can be no substitute for the potential empowerment of a good advocacy service.

With that in mind, this amendment is intended to achieve four important aims, which I will go through briefly. First, and most importantly, it will establish a statutory right to advocacy in the Mental Health Act. While the Government maintain that they are keen to increase access to advocacy through non-legislative means, this is not enough. Advocacy should play an important safeguarding role for detained patients and access to an advocate should be enshrined in law. There are a number of reasons for that: advocacy for detained patients is in its nature different from advocacy for informal patients, as it forms a safeguard against the improper use of powers against a person deprived of their liberty; an advocate can provide a means for the patient to exercise their right to appeal against decisions made about their care and treatment; and advocacy is a way of communicating their interests when they may lack capacity to do so for themselves. These are fundamental human rights, which surely must be upheld in law.

People admitted into hospital against their will are likely to be confused and fearful, distrustful of authority and feel out of control. At a point of crisis, the need for independent support is the strongest. It is logical that where government resources to invest in advocacy schemes are scarce, they are channelled into priority areas and to the most vulnerable patients. Therefore, a statutory right will ensure that advocacy is provided to patients at the point of crisis.

It is crucial that we tackle existing inequalities in the mental health system, particularly those relating to the significantly worse experience of people from black and minority-ethnic communities treated under the Mental Health Act. Providing advocacy is an important part of that solution. Culturally competent advocacy can improve therapeutic alliances and find culturally, socially and racially responsive resolutions to conflict where it arises. The Mental Capacity

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Act 2005 enshrines a right to advocacy for people lacking capacity through the independent mental capacity advocacy service, due to be implemented in April 2007. It is unacceptable for some patients lacking capacity to be awarded a statutory right to an advocate while those who lack capacity and are detained for their mental disorder do not have a similar statutory right.

Secondly, the amendment will ensure that patients are informed of their right to an advocate. The amendment specifies that there is a duty upon the appropriate authority to inform patients of their right to an advocate at various points during the period of compulsory treatment. It allows for the right to advocacy to be built into decisions made during compulsion, including treatment decisions, questions about the patient’s status as a detained patient and where the patient is particularly vulnerable, such as when he or she is detained in a police cell under Section 136, placed in seclusion, or is reporting abuse or a crime while in hospital.

For access to advocacy to be meaningful, it is crucial that patients are made aware of their right to engage an advocate. The right to advocacy must not be dependent on how conscientious individual members of staff are in informing the patient of the service. There should not be the opportunity to downplay the right to an advocate where staff feel that their time is short, or when the patient is strongly opposed to a proposed intervention and engaging an advocate might hold up decision-making. A right to be informed prevents advocacy being available only to people in the know or who shout the loudest, and avoids the potential for inequalities to emerge in accessing advocacy.

Thirdly, the amendment will extend the definition of a “qualifying patient” to include patients subject to police powers. Patients may be particularly distressed when they are taken from a public place, or after a policeman has entered their house with a warrant, and find themselves in a police cell or other alien environment under holding powers. An advocate in such an environment will be able to provide a friendly non-judgmental face, information about what has happened and what happens from that point on, information about the patient’s rights, and representation if the patient lacks capacity to express his or her wishes.

Fourthly and finally, the amendment will enshrine the right for patients to meet their advocate in private. As the chairman of the Mental Health Act Commission, whose major virtue is that we can and do visit and talk in private with detained patients at any reasonable time, I am very aware of the importance of a similarly statutory right of access for advocacy services.

Advocates should have the right to meet the patient in private, as set out in the 2002 draft Mental Health Bill, and as supported by the parliamentary joint scrutiny committee on the 2004 draft Bill. It is no good having statutory advocates who cannot get to their clients. I should note that, in its many years of visiting patients, the Mental Health Act Commission has not, to my knowledge, had any serious problem

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with the concept of a “reasonable time” to visit, although no doubt this has led to some lively discussions between staff and commissioners when we have appeared at night. It is important, however, that anyone vested with a statutory right of access should be bound to operate that right within reason.

I could go on, but noble Lords will be pleased that I shall not. I will finish by reminding noble Lords that the promise of a statutory right to advocacy, which has now been fulfilled for patients subject to the protections or powers of the Mental Capacity Act, addressed a demand of the mental health service user movement and of mental health groups and was seen as the most progressive aspect of past government Bills to enshrine a law fit for the current generation. We should fulfil that promise to the people who are the real concern of mental health legislation. Again, I wholeheartedly support the amendment.

6.15 pm

The Lord Bishop of Ripon and Leeds: I, too, strongly welcome these amendments, which seek to reinstate one of the best features of the 2004 draft Bill. The need for accessible, independent advocacy has been accepted in relation to mental capacity and it is crucial that it should be accepted in the field of mental health care. I have heard many moving stories, both from patients and still more often from their closest relatives, who may be the nearest relatives in the terms that we have talked about today or may be other close relatives—people who, when confronted by the bewilderment of mental illness, find themselves unable to cope or to understand. All of us who have had to care for people facing such a crisis, or who have faced such a crisis ourselves, know how bewildering and disorientating it is.

We also know how haphazard the care and advice provided in such circumstances is. Doctors and others who are responsible for the patient who is liable to be detained or to receive intrusive treatment are often unable to provide impartial advice in any way that will be heard by the patient. Time and again, the result is simply more confusion.

As we have heard, clergy are among those who are often called in at such times—hospital chaplains, police chaplains or parish clergy. We do our best and we can provide pastoral care, but that is no substitute for the independent advocacy that is sought by this amendment. It will provide support for vulnerable people to cope not only with their illness, but with a fear of authority, which may affect them deeply and lastingly into the future. I very much hope that we shall be able to add these clauses to the Bill.

Lord Hunt of Kings Heath: It is like old times to be discussing independent advocacy, as it will be with patient and public involvement, which I look forward to debating with the noble Baroness, Lady Barker, in particular when the local government Bill comes to your Lordships’ House later in the year. I am grateful to the noble Lord, Lord Williamson, for allowing us to debate this matter. I should explain to him that my

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noble friend Lady Morgan has been sent to a centre for re-education and training, otherwise known as the Whips’ Office.

This is, of course, a very important matter. The speeches that we have heard were powerful and there is no doubt of the contribution that advocacy can make. It represents an important safeguard in helping to ensure that the patient’s voice is heard and that he is able to exercise his rights. The Government are committed to developing the advocacy services available to detained patients across the board.

We have included guidance to practitioners in the draft illustrative code of practice on the great value of advocates. It stresses the important help that advocates can provide to patients in understanding the questions and information being presented to them and in communicating their views to staff and practitioners. The draft illustrative code of practice also includes guidance on when and how practitioners should consult a patient’s advocate. Similar guidance will be included in the code of practice for Wales.

Also, there is no question but that we already have high-quality services and I pay tribute to those who work in advocacy services. Advocacy services are already available in all strategic health authorities, but I accept that there is work to be done to ensure that these services provide the right level of support to patients detained under the Mental Health Act. We have commissioned Durham University to develop a specialist training programme and standards for mental health advocates, as well as systems to support the commissioning of those services.

In answer to the right reverend Prelate and the noble Lord, Lord Patel—and my noble friend Lady Howells, who spoke to a similar amendment in a previous group—this work continues to take account of different needs and groups, working with advocates who specialise in working with children, older people, people with learning difficulties and people from black and minority-ethnic groups. Obviously, other groups may be identified in the future.

It is also being co-ordinated with current work to establish independent mental capacity advocates. Our intention was to develop, by non-statutory means, the vision of advocacy services for patients detained under the Mental Health Act. However, I recognise the strength of opinion here, so I will agree to consider the amendments over the course of the Bill’s passage. On that basis, I hope the noble Lord will agree to withdraw it.

Lord Williamson of Horton: I thank the Minister for that reply. We are always very grateful to hear that the Minister will give consideration between now and the later stages of a Bill. There will probably be quite a lot of time for that. We look forward to it; the longer it takes, the more likely we are to get what we want, I hope. I was very glad to hear that; the issue is sufficiently important to be thoroughly looked at. It has been on the table in earlier discussions, though not for this particular Bill. It is well known among those concerned with mental health that it is an important point in practice. However, in view of the assurance given by the Minister, I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

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