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I understand the debate about whether the definition used should confine the provision to what noble Lords have described as a “revolving-door group”. Of course we will debate that at further stages of the Bill, but it would be fair to say that, if one were to limit the availability in the way that noble Lords have proposed, that would discriminate against those patients experiencing their first period of compulsory treatment and whose condition had improved to the point where, although they still required treatment, they no longer needed to be detained in hospital. There is a genuine debate to be had if noble Lords propose a further tightening of the definition.

Let me make it clear that the patient’s responsible clinician cannot make this judgment on his own. An AMHP must agree that all the criteria are satisfied and that a community treatment order is appropriate for the patient. If the AMHP does not consider, for example, that the treatment order would work because of a patient’s family circumstances, he or she will not agree to it. The noble Baroness, Lady Meacher, expressed concern that a doctor would not necessarily be involved, in relation to the definition of a responsible clinician. We debated that point on Monday. A responsible clinician will be a highly skilled and experienced professional who has been approved and trained for that particular role; they will have been selected for the patient because they have the right skills to match the patient’s particular treatment needs. The responsible clinician will have the overall responsibility for the patient’s case and will have the best overall knowledge of the patient’s current condition. Of course, the patient will already have been through the process of detention under Section 3—

Baroness Meacher: Does the Minister believe that a psychologist or a nurse could be adequately trained to assess a psychotic patient, the long-term effects of medication, the side effects and so on? If a nurse or psychologist had the training and experience that they would need in order to make or carry the responsibility for the decision about a CTO, they would in effect become a psychiatrist. Does he believe that a little training of a psychologist or nurse would set them up to make such decisions?

Lord Hunt of Kings Heath: Of course, if such a decision were made arbitrarily without the benefit of advice or discussion with the clinical team as a whole, I could understand the point that the noble Baroness is raising. My point is that the purpose of a responsible clinician is that they are the person with overall responsibility for the patient’s case. Of course they will have access to other professional advice; I am sure that the noble Baroness would not think that it would be otherwise. The responsible clinician is the person with overall responsibility and that is why he or she is the person to make the initial judgment.

Some noble Lords have referred to restrictions. The measures are not designed to impose unfair and unjust restrictions on patients in the community. They set an essential framework for the clinical management of patients in the community and for the

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protection of patients and others from harm. Clearly the engagement with patients, families and carers is important. The code of practice sets out in detail what that means for patients subject to supervised community treatment. A strong and comprehensive package of safeguards is in place for the protection of supervised community treatment patients. The mechanisms to safeguard those patients are exactly the same as for those patients detained under the Act. In taking forward this provision, we believe that we have placed in the Bill the checks and balances that noble Lords are looking for. There is no question that patients will be trapped under compulsion; our proposals go hand in hand with service improvements and the development of community services in general.

This has been an extremely useful discussion. I hope that between Committee and Report we will have an opportunity to discuss these issues more informally. I hope, too, that I have reassured the Committee that, while we are convinced that this is the right way forward, we want to engage with noble Lords in making sure that we have this absolutely right.

7.30 pm

Earl Howe: I agree with the Minister that this has been an extremely good debate and I express my appreciation to all noble Lords who have taken part. It was evident from my earlier remarks that the worry that I have is of both principle and practice. On principle, the simple point that can be made is the comparison between those who are mentally ill and those who have a physical illness. The position for the mentally ill and the risk that they present is, I suggest, very different from the position for people with, let us say, TB. Patients with certain types of TB are a definite risk to the public; despite this, there is no power to treat them compulsorily. That is very different from so-called high-risk mentally ill patients, the majority of whom are still very unlikely to harm anyone. That thought colours my attitude to these proposals as a matter of principle in quite a major way.

We then proceed to issues of practice and evidence. A lot was said about the evidence; the noble Lord, Lord Warner, argued that CTOs have been shown to be effective. I would be very interested to see the evidence on which he bases that assertion, because I certainly have not seen it. I guess that it is to be expected that the Minister and the noble Lord, Lord Warner, would read the existing evidence somewhat differently from the way I and others would.

Lord Hunt of Kings Heath: The noble Earl may have seen all the research that the department has found, but I am happy to write to noble Lords with any of the research that we have already.

Earl Howe: I am grateful to the Minister for that. If in doing that he can respond to the issue raised by the noble Baroness, Lady Barker, about the study commissioned by the department on the worldwide

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effectiveness of CTOs, that would be extremely informative. We understand that study to be complete.

No one has really mentioned the human rights aspect of this. The Joint Committee on Human Rights has expressed its concern about CTOs, particularly in relation to the power of the clinical supervisor to impose conditions without any power for the service user to object. I come back to the fears of patients, which I referred to in my opening remarks. There is an additional concern about the range of controls put on a patient who is to be subject to a CTO. I am thinking particularly about the power to require a patient to abstain from certain activities. The obvious questions are how that will be policed and who will have responsibility for the policing. Will that fall on the family? It is that, in part, that makes service users dub the CTO a psychiatric ASBO. That is a major worry that we need to bear in mind.

Lord Hunt of Kings Heath: If one of the conditions of a CTO is not to take drugs in the community, can it really be described as a psychiatric ASBO? I rather doubt it.

Earl Howe: Perhaps not in that case, but there is a whole range of conditions that can be applied, as we have heard from other noble Lords, and that is where the worry centres.

The noble Lord, Lord Warner, suggested that the cost of the policy would be less than some commentators fear. I have my doubts about that. Purely as a matter of logic, it seems to me that all patients who are currently detained in hospital need by law to be there. Therefore, it follows that CTO patients will add to the numbers of those in hospital.

Lord Warner: The logic flows along the lines that somebody might be released earlier under a CTO than they might otherwise have been under a Section 3 order. There is at least as much evidence for my view of how this will happen as there is for the contrary view. I suggested that there might be savings in in-patient care because people could be released at an earlier stage.

Earl Howe: That is a very helpful clarification. As has been said, it remains to be seen how the policy will work in practice. I am sure that the Government will get their policy in the end, one way or another.

One part of the Minister’s reply was very revealing. He argued that CTOs should not necessarily be confined to revolving-door patients. He suggested that limiting the CTO to such patients would discriminate against the first-time-episode patient. I am concerned by that. Any measure designed to deal with revolving-door patients has to discriminate against patients on their first admission. If the noble Lord is talking about legal human rights discrimination, I think that he is simply wrong. It is not discrimination when you have two discrete sets of patients—the first-timer and the revolving-door

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patient—because they are different and have an entirely different status. I shall have to reflect carefully on that part of his reply.

The experience of CTOs in Australian jurisdictions, as shown recently in an Australian Senate report into mental health across Australia, is that the only things that make a difference are the quality of services and timely intervention. The need for services to be in place before a system of CTOs is put in place was emphasised by the experts from Australia and New Zealand at a recent London conference. We would do well to bear that point in mind.

I should like to conclude on a constructive note. Noble Lords referred to the views of Professor Tony Maden, and I think that those views should be explored. If the Bill were to provide for CTOs to be limited to a certain group of people, we might have the basis for a constructive dialogue. The conditions that I would look for, which I understand that Professor Maden is also advocating, would be threefold: that there should have been a history of serious violence in the patient; that there should have been a previous relapse because of the patient having stopped medication; and that the patient should be identified as a continuing high-risk patient. If the Government were prepared to look at that proposal, it might well be possible to find a way forward that will command broad support. I say that having taken on board everything that noble Lords have said in this debate.

Lord Hunt of Kings Heath: Clearly I am not going to commit myself to those three conditions, but I do commit myself to engaging in discussion to see to what extent we can find a way through.

Earl Howe: That is very welcome. With that, it is probably time to bring this part of the debate to an end.

Clause 25 agreed to.

Baroness Royall of Blaisdon: I beg to move that the House be resumed for the Question for Short Debate. In moving the Motion, I suggest that the Committee begin again not before 8.40 pm.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

Bus Industry

7.40 pm

Lord Bradshaw rose to ask Her Majesty’s Government how they propose to address the present problems facing the bus industry.

The noble Lord said: My Lords, in considering the present situation in the bus industry, I will attempt to cover the way in which the industry is at present organised and run, and my noble friend Lady Scott will, in winding up, deal with the external

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environment within which buses are operated in this country. We will therefore attempt to be comprehensive and constructive in our approach.

We are both well aware of the Government’s proposals in the White Paper Putting Passengers First, and we hope to add to the debate begun in that document. We are well aware of the continuous decline in the use of buses throughout the country—with one or two notable exceptions—which has been affected only a little by deregulation, despite vigorous propaganda to the contrary. We are well aware that buses have to contend with a road network that is congested with traffic, parked cars and delivery vehicles. We are also aware of the advent of the impact of the UK’s adoption of the European Social Charter, which brought with it legislative change that, in the five years leading up to 2008, has taken up a vast amount of management time and unsustainable added costs.

I plead with the Minister to accept that officials who negotiate on behalf of the UK on drivers’ hours do not understand the impact on the bus sector. I ask him to ensure that in all future negotiations officials are accompanied by a professional who intimately understands the industry and what is involved in the details of bus operation. That is not much to ask and it would bring professionalism into the negotiations. We need to be represented at the table by people who really know and care about the outcomes. I would hazard a guess that of the typical 9 to 10 per cent per annum cost increases faced by the industry, about a third emanates from these regulations. That ought to be a matter of concern. Fuel costs, insurance costs, above-average wage rises and congestion account for the rest of the cost increases, but a pause or moratorium in new legislation and the inclusion of a professional input at the negotiation stage would be a great advance.

I turn next to competition. The White Paper stated that the objective of the deregulation of “on road” competition was to provide more attractive services. Generally speaking, that has not been realised. In many places, territorial monopolists are offering a service of old vehicles, high fares and poor and declining frequencies, while many smaller operators who would enter the market are cowed and afraid to enter because of the likelihood of competitive action by the bigger companies. That is a form of predation by reputation, a practice which should be outlawed by the competition authorities but is not. Indeed, it is actually supported and encouraged by the Office of Fair Trading because of its definition of the market in the economic appraisals that it sometimes—but always too slowly—puts into effect. I suggest that a proper test would be for the Office of Fair Trading to ask whether the reaction of an incumbent operator is consistent with its pattern of behaviour in the rest of the country. If that is not the case, the OFT should rule against any retaliatory action by them against a competitive threat.

The whole market needs to be opened up, and operators in all transport sectors need to realise that the real competition comes from the private car. Co-operation and co-ordination in the interest of

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passengers need to be the watchwords, and any proposals for joint services, ticketing, timetables and so on should be subject to the simple test of whether they are in the public interest. As the White Paper claims in its discussion of quality contract schemes, the public interest test is the best way of determining whether arrangements suit the bus user.

We then move to the subject of who should make the test of the public interest. In my view, it should be a reformed and invigorated version of the traffic commissioners. We must first ask whether the present stature, training and background of the commissioners are right. They also need sufficient locally based staff. I realise that the Government are currently advertising for a number of replacement commissioners. Perhaps that process should be suspended while we are discussing and, I hope, implementing fresh arrangements in the bus industry.

Perhaps traffic commissioners should in future sit with two deputies, one who may be versed in competition matters and the other an experienced and respected operator from elsewhere in the country. They would guide the commissioners in matters such as whether a quality contract is appropriate and the appropriateness of proposed changes in registrations and their competitive implications so that the interests of actual and potential passengers are given the most weight. That would include the right to vary proposed registrations that run immediately ahead of those of a competitor and other undesirable practices. I know that many good small operators would be willing to engage in the market to give a better service to customers if they could be sure there would be no predatory response from the big territorial monopolists. Such a response would lead very quickly to the small operator going bankrupt because the bus industry is largely a cash-flow business. We welcome the idea, put forward in Putting Passengers First, of empowering the traffic commissioners to summon before them the local authorities that fail to manage the road network to allow buses unhindered access.

Finally on this subject, there should be stronger powers if an operator fails to maintain his fleet well. I draw the Minister’s attention to what has gone on in Greater Manchester, where at last a company that entered the market with a thoroughly unsuitable fleet of vehicles has been put off the road, though not until a great deal of damage had been done. The stronger powers should include banning an operator from routes for long enough to allow a competitor to establish itself in the market. I suggest that the traffic commissioners should use their powers to the extent that operators who have had persistent maintenance failures are banned from routes for two years. A final appeal to the Transport Tribunal would have to be available, but only after clear guidance had been set down about some of these issues.

7.50 pm

Lord Snape: My Lords, it is always a pleasure to follow the noble Lord, Lord Bradshaw, who is well known for his knowledge of these matters. I draw your Lordships’ attention to my entry in the Register of Members’ Interests, which is not entirely accurate.

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It refers to my employment with the National Express Group but I retired from that body in the past few weeks. However, I have a declarable shareholding in that company.

I was very interested in what the noble Lord had to say. He started off rather well but was inclined to undermine his own case as he went along. He referred to “territorial monopolies”. I used to chair the biggest bus company in Birmingham, so maybe I fell into that category. However, let me explain to him the reality of operating services alongside some of the smaller operators, which he started off by defending. He stopped defending them when he referred to Greater Manchester, where a smaller operator behaved in a way that, I am afraid, many of them do.

In Birmingham, route 50, on the south side of the city, was one of our busiest routes. Travel West Midlands, the company of which I was chairman at the time, ran a frequent service every six minutes for much of the day. One of the smaller operators came on to the route, as it was perfectly entitled to do under the legislation. It ran number 50 buses with the same destination blinds as our own buses, and tickets and passes were accepted on them perfectly legally and legitimately. But its buses could be described as coming from the bus equivalent to the railway museum. Unlike the drivers of Travel West Midlands, its drivers were not in uniform. Needless to say, union recognition was unheard of in that company; it was sweatshirts, tattoos and a fag in the mouth.

That is the kind of company that the noble Lord, inadvertently or not, is defending when he urges the free entry of such companies into the bus business. That is exactly the sort of company that caused so much damage that it had to be put off the road comparatively recently by the traffic commissioner in Greater Manchester. Last year’s Labour Party conference was held in Manchester, a city I know quite well. I served on the city’s passenger transport authority 30 or so years ago.

I was fascinated—horrified as well—by the operations of GM Buses, the private operator which the noble Lord started off by defending, on the Wilmslow corridor. Exactly the same kind of thing was occurring there. The buses, incidentally, were packed. With a maximum fare of one pound, they were full of students. They did not care that the buses were clapped-out old relics and that the driver was demonstrating his tattoos and his ability to smoke 20 cigarettes a day during the course of an eight-hour shift. They were interested only in getting into the bright lights of the city centre. It was no great advertisement for the bus industry, but that seemed to be the sort of thing that the noble Lord was advocating in the first part of his speech, no doubt inadvertently.

There are some perfectly legitimate and well-run small operations. North Birmingham Busways is run by many ex-employees of the company I used to chair. They obviously felt they could do better by starting up on their own. They ran rather elderly Leyland vehicles which were kept in tip-top condition, and their drivers were always smartly turned out. They developed some new routes which

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we had not been business-minded enough to develop as well as running alongside some of our vehicles. No one could have any complaint about that kind of operator. They are, alas, in my experience, in the minority.

I welcome the Government’s document Putting Passengers First. I do not think that any responsible bus operator could object to the proposals and changes that it sets out. I congratulate the department on managing to resist the hysterical—and I choose my words carefully—campaign waged by the passenger transport executive groups which have never forgiven politicians of any hue for not reverting to the pre-1986 situation in vehicle ownership and fleet ownership and in the setting of fares and services.

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