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Not only we, but other countries have discovered that there is an alternative. As I said at Second Reading:

Other countries, including parts of the United States, are also considering it. I am not arguing that they cannot all be wrong—although one might assert that—and I fully acknowledge that there is a mixed range of reports on this experience. A number of noble Lords have drawn attention to that fact that some of the reports are inconsistent—some are not so well founded as others—and different experiences are being reported from different countries. There is also evidence in some reports that the methodologies are somewhat suspect. I accept all of that but, if we look at the range of comparative studies, there is plenty of evidence of significant therapeutic benefits to patients, greater treatment compliance and some reductions in rates of hospital admissions. I do not want to overstate those reports, but that evidence is available. There is also evidence of patient and clinician support for these overseas developments and experiments.

Academics will no doubt continue to argue over methodologies. The one thing I learnt as a Health Minister is that plenty of academics will take a different view from other academics; if I may be unkind, that is sometimes how to develop a reputation. Whatever the detailed reservations about particular studies, they do not set aside, in any kind of meta-analysis of these studies, the clear positives I

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have mentioned. It is perhaps significant that other countries have not ceased using CTOs, and have continued to see benefits in using them.

I rather agree with those who argue that the net of compulsion in community treatment should not be cast too wide. The Government have listened on this, however, and tried to restrict the use to a clearly defined and clinically identifiable group of patients. They have put the group to whom CTOs apply in the Bill. If we believe that the drafting is not as good as it might be and can be improved, perhaps we should discuss that further. But it does not damage the underlying case for community treatment orders.

The Minister may want to say a bit more on that, but I shall confine the rest of my brief remarks to three key issues: safety, numbers of CTOs and resources. On safety, my clear recollection is that distinguished forensic psychiatrist Professor Tony Maden’s 2006 review of homicides by patients with severe mental illness concluded that there is a need for legal powers allowing compulsory treatment in the community for patients with a serious mental illness and a history of non-compliance with treatment. Common sense, expert opinion and overseas experience all point in the direction of some form of compulsory community treatment for a small, defined group of patients. It seems rather irresponsible of us, as legislators, not to face up to some of that evidence. I am not arguing that the net should be cast wide or that we should not try to improve the drafting of the Bill to get to the groups we are concerned about. However, the underlying thrust of the Bill—that we need community treatment orders for a group of patients—is in the interests of public safety and the evidence for it is pretty conclusive.

Some pretty high figures have been bandied about for the number of people likely to be affected. The noble Earl, Lord Howe, rightly raised this. It is important that we should not, as others have said, sleepwalk into a change where we do not know what the implications are in terms of figures. In my speech on 28 November, I said that the number of those subject to a CTO was likely to build up to, not immediately be,

That is, by about 2013. That compares with 40,000 mentally ill in-patients a year and is substantially more modest in scale than the 15,000 or more that some have suggested. If in-patient services are so hard pressed and unsatisfactory, as has sometimes been suggested in these debates, I do not understand why proponents of that view should not also support a proposal likely to bring some relief to the in-patient area through CTOs. That is a logical consequence of this change.

Finally, on resources, it currently costs the NHS about £1,200 to £1,300 a week to keep a mentally ill patient in hospital. As I recall from my extensive earlier ministerial briefings, the cost to the NHS of a CTO is likely to be substantially under half that. You do not need to be an incredible mathematician on this: it seems more likely to free up resources for other patients and their treatments. Some have argued that

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CTOs will be funded by drawing resources from other community services, but I have seen no compelling evidence to support that view. It is more plausible that CTOs will free up in-patient costs for use in the community than the other way around. However, I accept that it will be important to be convincing at a later stage about how CTOs will work and how they will be carried out without detriment to other community services. I wonder whether the Minister can throw more light on this issue, probably not today but at a later stage.

7 pm

I have tried to examine this issue from a variety of angles: the impact on patients involved, civil liberty safeguards, public safety, cost to the public purse and overseas experience. Taking these aspects in the round, there seems an overwhelming case for the Government’s measured approach to CTOs, although I do not doubt that with a bit more attention we may be able to secure some improvements in the drafting that give more reassurance. But the underlying case seems to me to be made, and in the public interest we need to pursue the policies and the approaches set out in the Bill.

Baroness Masham of Ilton: CTOs could be useful for people coming out of prison or hospital who have a serious long-term illness such as schizophrenia if they are used to see that these patients take their medicines. This has happened in New York, where a directly observed treatment—DOT—system worked to stop drug-resistant tuberculosis. So often people who have been in institutions cannot cope when they come out into the community. They forget to take their medicines and disaster follows. Therefore I agree with what the noble Lord, Lord Warner, has just said.

Baroness Meacher: This is the one amendment on which I want to make a short contribution. In principle I welcome the Government’s intention to introduce community treatment orders. I agree with the noble Lord, Lord Warner, that there are without doubt situations in which a community treatment order will be the least restrictive alternative open to a patient and thus in the patient’s best interests. There are other situations when a CTO would be justified on ethical grounds—the benefits of such an order having been weighed up for carers in particular, but also for the community, on the one hand; and the loss of quality of life, at least in the short run and maybe in the very long run, for the service user on the other.

In 1982 the debates on the Mental Health Bill as was gave much less thought to the needs and interests of carers than should have been the case. I was heavily involved at that time and I am now very conscious of the gap. I welcome this opportunity to redress the balance. I therefore wish to explain my support for this amendment. The noble Baroness, Lady Murphy, has spoken eloquently about the homicide issue so I will not touch on that directly. My starting point is that the Mental Health Act 1983 makes provision in Section 17 for the responsible medical officer to grant a detained patient leave of absence from hospital subject to conditions seen necessary by the clinician.

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This section is already useful in providing a graduated return to home life and as a trial release in which a patient’s readiness for discharge can be tested. Section 25, as we all know, is virtually not used. The problem with Section 17 of course is the lack of enforcement powers. If CTOs were eliminated from the Bill, the psychiatrists’ cupboard would not be completely bare.

The question we have to ask ourselves is whether it is more ethically sound for the psychiatrist and team to have too few powers at the time a detained patient is discharged from hospital, as at present, thus depending upon good community care to deal with risks, or whether it is preferable for those powers to be excessively wide-ranging—and that, I am afraid, is how I still see the powers as described in the Bill, despite the comments of the noble Lord, Lord Warner. Which of these two alternatives would be preferred? There are many angles to this argument. The noble Earl, Lord Howe, referred very effectively to the international evidence so I will not go into all of that. The key point is that CTOs apparently have not achieved the hoped-for results but rather the contrary, so it is perhaps not surprising that I and others involved in the mental health services have concerns that community treatment orders as envisaged in the amendment may adversely affect the development of community care. This is really at the root of the problem. Will these CTOs improve things for patients or will they actually make things worse?

I want to refer again to the Government’s national service framework and the valuable contribution being made by early intervention teams, crisis resolution teams and assertive outreach teams. The purpose of all these, as noble Lords will be aware—and I think they have been introduced in every trust across the country—is to enable service users to be assessed and treated in the community wherever possible, rather than being admitted to an in-patient hospital unit. More and more services are becoming available, such as crisis houses, where very intensive care can be provided for people day and night rather than having them in hospital. For these crisis houses you do not need a CTO or assertive outreach teams or anything else. I believe all this excellent work could be undermined by CTOs and for me this is the nub of the problem. I was challenged by one of the advisers to the Government recently asking what I would do if we were not to have CTOs. The answer is really good community treatment and services.

An important aspect of all this is the stigma associated with mental health problems and with the secondary mental health services. The Government have shown considerable determination to tackle stigma, largely through the work of their social inclusion unit and through these community teams. The last thing service users need is the new Sections 17A to 17G, which would inevitably put pressure on professionals to impose community treatment orders more than they would necessarily wish, and certainly more rather than less.

It will take only one tragic case to drive up the use of CTOs. If one service user is not placed on a CTO and subsequently commits suicide, this will result in

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the inevitable inquiry and public criticism of the professionals involved for not taking advantage of the legislation. Is it fair to ask professionals to risk this public criticism when the imposition of a CTO will protect their back? That is the crucial point about limiting the application of CTOs—to protect the professionals from the pressure they will be under to impose these CTOs when really it is not justified. The points made by the noble Baroness, Lady Murphy, are crucial here.

It is relevant to consider the very different approach to life-threatening physical illness. The Royal College of Psychiatrists pointed out that only 8 per cent of patients with potentially fatal heart disease take the statins that they have been prescribed, but no one criticises the doctors when those patients die. For mental health patients the decision not to take medication may be a very understandable one. The side effects of these drugs that people are required to take can be extremely unpleasant. If there is no risk to others, should we be critical of mental health professionals? Why should we criticise the medical professionals when somebody at home decides that they have really had enough? Of course professionals have a duty to prescribe and to encourage service users to take medication, but is coercion the right way to deal with this? The answer lies in high-quality community services that are being developed thanks to this Government. This is what the Government and trusts are working together to achieve. The Government are setting the strategy; the trusts are really working at it. Surely this is the way to prevent suicide. I understand that where there are risks to others it is a somewhat different matter.

In summary, my view would be to err on the side of limiting the professionals’ powers to those in the 1983 Act. My preferred option is a form of words which will find the right balance between the needs and interests of service users, carers and communities. I was very encouraged by the words of the noble Lord, Lord Warner, who was indicating that we have to find the right form of words to achieve the balance. I would therefore support a rewording of the CTO clause to include a requirement that a community treatment order be approved only if there is evidence that the service user has in the past persistently failed to comply with medication. It should not be just one admission—that may be the only one—but persistent failure to comply with medication. It should also be stated that the consequences of the failure to comply with medication have been so serious for the service user, their carers or their community that there really is a reason for imposing the CTO.

I want quickly to raise two further issues with new Sections 17A to 17G, and I am sorry that I have taken too much of the Committee’s time. The first is the assumption that a patient could be discharged from hospital and placed under a community treatment order by a responsible clinician and approved mental health professional, neither of whom needs to be trained as a psychiatrist. A patient would surely not be placed under a CTO unless assessed as needing to continue to take anti-psychotic medication. We are not talking about behavioural treatments or pills, as the noble Baroness, Lady Murphy, said. The CTO

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decision requires a full understanding of the long-term consequences of the medication prescribed, the likely side effects over time and possible alternative medication regimes, as well as the consequences of non-compliance. Those are all decisions for which psychiatrists—and, in my view, only psychiatrists—are trained.

Other members of the multi-disciplinary team will of course have important views and knowledge of the service user to contribute to the decision to impose a CTO and the conditions that it would be appropriate to impose under new Section 17B. What we need in the Bill is clarity: that if someone is suffering from a mental illness—we are not talking about learning difficulties or personality disorder—a CTO should not be imposed other than by the people who understand what they are doing; that is, psychiatrists.

Finally, I cannot agree with new Section 17B(3)(e) under which one of the conditions that may be specified by a community treatment order is that,

This language appears to be drawn from the ASBO legislation and does not belong in mental health law.

I ask the Minister to consider these matters and the cogent points made by other Members of the Committee. I hope he will agree to discuss amendments that will achieve the desired balance between the needs of the service user, carer and community a balance that would reinforce the progress made under the Government’s forward-looking national service framework policies and other radical new developments.

Baroness Barker: I have a couple of additional points. Most of the points have been made, but I want strongly to back the noble Baroness, Lady Meacher, on the history of non-compliance as regards medication. That issue is central. It does not appear in the legislation and, to the best of my knowledge, it does not appear in the code of practice.

I say to the noble Lord, Lord Warner, that the reason why there is opposition to the measure is twofold. First, treatment may be given in the least restrictive setting, but it is still compulsion. That is at the heart of much of the opposition. Secondly, the evidence base is unclear. He will know that for some months his former department has been sitting on a paper containing evidence of the effectiveness of community treatment orders which it has not published. The fact that the department brings forward such a serious and widely drawn piece of legislation that will have an impact on large numbers of people without its own evidence base is naturally a cause for suspicion. Can the Minister tell us when that evidence is likely to be published?

I want to mention the code of practice in two respects. Paragraph 12A.23 sets out the conditions as they appear in the Bill, but at the end there is a telling phrase. It states:

Therefore, it is not just that we are going to compel people to abstain from certain conduct; it is that these

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CTOs may be widened, using the code of practice, in any way that clinicians see fit. It is a remarkable statement to appear in a code of practice.

Finally, under the code of practice there is a requirement on practitioners that if they are to grant leave of absence for more than seven consecutive days, the responsible clinician should first consider whether the patient should go on to SCT. Why? If the issue is about compliance, if it is based on the judgment of the clinician, why should they have to do that? There will be patients for whom leave of absence is the best therapy treatment; there will be patients for whom SCT may be the best therapeutic basis. The existence of that statement leaves one to suspect that there is a strong possibility that SCTs will become the preferred option for clinicians and that they will be allowed to get away with it whether or not it is appropriate.

Those are just a few of the very many reasons why this idea is probably one of the most unpopular that the Government have proposed in a very long time.

7.15 pm

Lord Hunt of Kings Heath: We have had an interesting and useful discussion and I am grateful to the noble Earl, Lord Howe, for proposing that we debate the Question on clause stand part in this way. It is an opportunity for all of us to reflect on some of the important issues raised. As my noble friend Lord Warner suggested, some of them fall to be discussed within the overall context of the Government’s wish to take community treatment forward. I will attempt to arrange before the Report stage an opportunity for Members of the Committee to meet our advisers to discuss CTOs and the way we expect them to operate. I am sure that we would all find that useful. As the noble Lord, Lord Carlile, suggested, it is one of the major pillars of the legislation and no wonder we are having an extensive debate today.

As my noble friend Lord Warner said, far from this being the negative measure that it has been painted, it brings mental health law in line with what has been achieved in modernising mental health services. I say to the noble Baroness, Lady Meacher, that far from seeing this as a conflict with the welcome developments in community services, we see it as marching hand in hand with them. The Government see it as one of the important elements in dealing with the revolving-door cycle—that of admission to hospital and treatment leading to improvement, discharge, relapse and readmission. There is no question but that, in terms of that extremely vulnerable group of people, anything we can do to provide the kind of support that will stop that happening must be seriously considered.

This is a difficult and complex area, but we are attempting to put in place a framework that enables professionals to treat patients effectively in the community while protecting their rights. There is no reason why the existence of community treatment orders should frighten people and make it less likely that they would seek treatment. Patients can go on supervised community treatment only after a period of detention in hospital. Therefore, such treatment is

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not an issue at the outset of illness. Nor do we see it as damaging the relationship between professionals, patients and the clinical team. We believe that supervised treatment will help to foster trust; it will help compliance with treatment in the community and make it easier for professionals to sustain a therapeutic relationship with someone if they remain well rather than if they keep relapsing.

The noble Earl, Lord Howe, asked about perverse incentives. I recognise that noble Lords have expressed a fear that the Government’s aim is to bring into place a system of compulsion at the whim of clinicians and that many more people will end up on supervised community treatment. That is not what we seek to do. It is clear that all of us have trawled in the same pot of evidence. We can sometimes find what we want to find, but there is no question but that there are examples of favourable perceptions of community treatment orders among clinicians and patients. The noble Baroness, Lady Barker, has referred to the work that has been commissioned by my department. I did not recognise what she said about the research being sat on. My understanding is that it is currently being peer-reviewed. I do not yet have a date when that is likely to be completed, but I will let the noble Baroness know when that date is made known to me.

As far as the numbers are concerned, the estimate that we have given is 3,000 to 4,000 over the next four or so years. These are estimates; an entirely new regime is being proposed. Decisions to place a patient on a supervised community treatment will be made at the discretion of the clinician responding to individual patients and their needs. Clearly, a large number of factors will influence the uptake of supervised community treatment, but we do not recognise the high figures that have been quoted by other organisations. It will be critical to monitor the use of supervised community treatment to assess its uptake in the first year of use, which will of course inform further guidance advice that may be given to the health service. We will certainly want to do that.

Some noble Lords have expressed concern that a community treatment order can be made too easily and that the criteria for supervised community treatment are too broad. That is not what we intend. We have set a high eligibility threshold. Patients must have been so ill that they have been detained in hospital for treatment under Section 3. That is not a hurdle lightly cleared; it goes further than what happens in other countries that have gone down the route of community treatment order-type approaches. Strict criteria must be met before a patient can be placed on a community treatment order. Among other factors, a patient must remain liable to recall to hospital and be subject to compulsory powers under the Act, so the decision-maker must be satisfied that the compulsion is necessary for the patient to receive the treatment that he needs. They must be satisfied that there are factors such as the patient’s previous history of non-engagement and non-compliance that make it unsafe to treat the patient in the community voluntarily, so that the only recourse if things go wrong would be to resection the patient under the Act’s powers.

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