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Regarding the proposals for amending the Mental Capacity Act, the Government are in full agreement with the noble Lord that an essential part of introducing those safeguards is monitoring how they are applied in practice. That is why we have taken a power in Schedule 6 to make an insertion into the Mental Capacity Act to give one or more bodies a duty to monitor and report on the operation of the Bournewood safeguards. Essentially, the monitoring bodies would have powers to monitor and report on the operational safeguards; visit hospitals and care homes; visit and interview people in hospitals and care homes; and require the production of an inspection report.

The monitoring would require the body to look at protocols and procedures in place for complying with duties placed on managing authorities and supervisory bodies; whether the guidance in the code of practice is being complied with—I thought noble Lords would be pleased to hear that; whether conditions attached to authorisation and requirements to request review of circumstantial change are complied with; and whether appropriate steps are being taken in cases where authorisation has been refused. It is intended that this monitoring body be an integral part of the overall regulation inspection regime for health and adult social care. We intend that the new body should monitor the use of deprivation of liberty provisions in the Mental Capacity Act in England. The deprivation of liberty provisions and the establishment of the new regulator are planned to take effect in 2008. In any interim period between the two coming into effect, the monitoring role will be undertaken by the existing bodies alongside their current roles. We are in very constructive discussions with the three commissions about how that might work in practice.

We are proposing to use the regulation-making power in paragraph 155 of Schedule 6 to require supervisory bodies and managing authorities to make information available to the regulatory bodies. I hope that that meets some of the issues raised by the amendments.

Amendment No. 43 would open the possibility of requiring the Mental Health Act Commission to visit all care homes to monitor the Bournewood safeguards. That is not something that we would agree to. Our interim arrangements will enable the Commission for Social Care Inspection, which already visits care homes, to undertake the monitoring of the use of the Bournewood proposals in that setting.

I turn to the wish of the noble Lord, Lord Patel, to give the MHAC powers to monitor patients whom it considers may be detained but who are neither subject to detention under the Mental Health Act nor subject to a deprivation of liberty under our proposals for the Mental Capacity Act. I say at once that I clearly understand the concerns raised by the noble Lord, but I think that an issue arises in law in saying that such patients, who in effect are illegally detained, should have their cases kept under review. I am clear—this was reinforced by the debate—that it will be for the regulator and, where appropriate, the

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courts to address these situations. With a single regulator, we want to ensure that quick action can be taken whenever such a case comes to the attention of staff who are responsible for visiting patients detained under the Mental Health Act or deprived of liberty under the Mental Capacity Act.

I will take the noble Lord’s comments into account when taking forward the proposals for a single regulator. Clearly, we will want to ensure that there is even better co-ordination between that part of the new body charged with regulating hospitals and the part that will inherit the responsibility for visiting patients who are subject to compulsion or deprived of their liberty. We will consider further the right range of powers for the new regulator, including how the regulator’s enforcement powers should apply. I hope that I have responded positively to some very real issues raised by the noble Lord.

Lord Patel of Bradford: I thank the Minister for his response and for his kind remarks about the Mental Health Act Commission. I genuinely believe that the amendments, or similar wording, would be a step in the right direction to stop the ongoing abuse and neglect of a number of vulnerable people in the mental health system who are falling in the gap.

I take on board his point about the new health and social care Bill establishing the new regulator, but perhaps I may ask him to reconsider having to wait another year before that Bill comes into place, with another year of abuse for these patients. A year is a long time and, having come to this House, I have learnt that things can change in a year: some Bills are introduced and some are not. Also, in the interim period he may wish to talk to the Secretary of State about the discretionary powers that exist and about whether there may be an opportunity for us to look beyond that and have a further debate on this matter. I believe that we need a further debate but, for now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 44 not moved.]

9 pm

Lord Patel of Bradford moved Amendment No. 45:

(a) the age and sex of the patient; (b) the ethnic group to which the patient belongs; and (c) the patient’s religion. (a) from the provisions of this Act, or (b) from the hospital.

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(a) the cause of death; (b) the age and sex of the patient; (c) the ethnic group to which the patient belongs; and (d) the patient’s religion.

The noble Lord said: I want to explain to your Lordships the background reasons for this amendment. It may surprise the Committee that there is no notification process for admissions, detentions and discharges for people detained under the Mental Health Act. That gives me great concern, given the implications for individuals of losing their liberty under civil powers without the benefit of court sanction. All detentions occur locally without independent oversight from a monitoring or inspectorate body. I am sure that if the Minister were to set up a new mental health monitoring body today, he would undoubtedly wish to give it this oversight.

Despite the resource constraints, the Mental Health Act Commission interviews 6,000 patients every year out of some 46,000 detentions. Clearly the majority of detained patients—40,000—do not benefit from a check on the legality or probity of their detention. Even the 12,000 or so second opinions that the commission arranges every year do not ensure the wider protection of the fundamental rights and freedoms of all patients.

Of course, some discharges, following a mental health review tribunal hearing, are recorded. But that affects only a minority of patients. Surprisingly, the MHRT does not keep information on the ethnicity of patients who come before it, so it is not possible to assess any differential impact of MHRT decisions, despite that being contrary to the DCA’s own duties under the Race Relations (Amendment) Act. As I said on Second Reading, the lack of a notification procedure means that we have little information on the impact of the Act on any patient group, especially those with heightened vulnerability, such as children, old people and people from black and minority ethnic groups. I shall deal with them briefly in turn.

Ensuring that the rights of service users—especially children and older people—are protected demands that we know where patients are, how many there are, their ethnicity and their specific health needs. The first but crucial step towards ensuring this protection, and with it the ability to monitor the provision of appropriate care, is the notification of all formal admissions to the MHAC. In addition, a statutory notification of all deaths of patients, whether detained or not, will provide much needed

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and accurate information on unexpected deaths. I remind the Committee that there are approximately 380 deaths per annum of detained patients when in care, of which about one-quarter are “unnatural deaths”—suicide, other suspicious circumstances, and so on. Despite inquiry after inquiry—for example, that into the death of David Bennett—every year there are still one or two patients who die while being physically restrained. When will we learn the lessons from those unnecessary deaths?

We have had much debate during these sittings on the needs of children and young people. The detention in hospital of any young person must be a cause for concern, and yet we have no way of knowing exactly how many children are detained. What we do know—and this is from a voluntary monitoring arrangement that the MHAC had in place for the past three years—is that at least 1,308 young people, some as young as 12, were detained on adult wards. That equates to around 370 each year, which is probably a considerable underestimate.

When speaking to Amendment No. 27 I expressed in great detail my concern about those young people and the appalling level of service they receive, especially young girls, 80 per cent of whom were placed on mixed adult wards where they were vulnerable to sexual and physical assault. Nearly 27 per cent of the young people detained on adult wards were from black and minority ethnic groups—at least three times what we might expect from demographic statistics. Evidence from a survey that the MHAC undertook found that 62 per cent of all children and young people admitted under the Act were placed on adult wards. These children were not only placed in an inappropriate environment that did not cater for their basic educational, recreational and social needs; they were in places where they were liable to be bullied, have illegal drugs forced on them, and where they undoubtedly had to witness some distressing and violent scenes.

Older people are one of the most vulnerable groups in the mental health care system. They—especially those with dementia and learning disabilities—are often subject to unacceptably low standards of care that result in abuse. This group is the most likely to be de facto detained without the benefit of the protections of the Mental Health Act. We have just discussed these issues under Amendment No. 43. Again, we can be effective in looking after this group of people only if we know how many older patients are detained in hospitals and independent facilities. Currently we do not know.

Finally, I remind the Committee of what I consider to be one of the most significant remaining scandals in the health and care system, which I spoke about on Second Reading and which I will continue to raise. I refer to the significantly disproportionate rates of admission and detention of people from black and minority ethnic communities in our mental health settings. In preparing for the introduction of this Bill, the Department of Health undertook a race equality impact assessment as required under the Race Relations (Amendment) Act. Although I chaired the advisory committee on that impact assessment, the

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committee was not responsible for the resultant report. As noble Lords know, that report has been much criticised within the black and minority ethnic community because it did not reflect some of the more serious concerns about the operation of the present Act, concerns which can be clearly understood when we consider the disproportionate rates of admission and detention. Because of the lack of a notification procedure, in 2005 the Mental Health Act Commission with the Healthcare Commission set up and implemented “Count Me In”, the first national mental health and ethnicity census. We also undertook one in 2006. This annual census, which I devised, is expected to be repeated each year up to 2010.

The census confirmed extremely worrying statistics on the disproportionate admission and detention rates for black and minority ethnic patients. For example, black African and black Caribbean people are 300 to 500 per cent more likely to be admitted to mental hospitals and 30 to 40 per cent more likely to be detained under a section of the Mental Health Act. The group termed “Other Black” is most worrying. They are most likely third and fourth generation young black men and are 14 to 18 times more likely to be admitted than white men of the same age range.

We are becoming all too familiar with these appalling statistics. A number of noble Lords have already referred to them, but they are not the whole story. Although figures for the black community have been most publicised, nearly all minority ethnic groups have disproportionate rates of admission to some extent. For example, people of Irish descent and those from Bangladesh and Pakistan are approximately 30 per cent more likely to be admitted than white British. People of mixed heritage and the “Other Asian” group are 150 to 300 per cent more likely to be admitted. In fact, recent research by my team at the University of Central Lancashire confirms that young south Asian, particularly Muslim, men are beginning to replicate the experiences of young black African and Caribbean men. If we do not resolve this, in a few years we may find that we have another group with extremely disproportionately high admission rates.

For the Chinese community and, to a lesser extent, the Indian community, admission rates were significantly below average—much lower than might be expected for Chinese people. In this case, the implication is that our mental health services are not responding adequately to the needs of the Chinese community.

The variation in these figures goes to the heart of the requirement for a comprehensive notification process, especially in relation to religion and first language. Let us not forget that the “Count Me In” census is a one-day snapshot. It is expected to take place annually for only the next three years and is not intended to make up for the lack of a statutory notification system. Despite the fact that ethnic monitoring has been a mandatory requirement for all in-patients since 1995, the overall state of collection, recording and use of data are disgraceful. We know

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from the Mental Health Act Commission’s regular visiting that the collection, recording and use of data are not being sustained on a day-to-day basis at ward level. Yet the census managed a 98.9 per cent collection of ethnic monitoring data by providing training, advice and support to providers. So we know it can be done. A statutory notification procedure would have the same effect—getting providers to do what is required of them—and thus would ensure that the information on which to base service developments is available.

Over the past three years the Department of Health has implemented the mental health minimum data set, and that must be welcomed. Unfortunately, it is neither comprehensive nor accurate. Ethnicity recording still falls far short of the census: it does not provide the data we need on deaths of patients or include much of the information required for adequate patient monitoring, such as information on language and religion. Even if such information were provided, provision is not statutory. A statutory notification procedure would enable us to track and analyse what is happening to the young and the elderly and to all vulnerable groups. It would act both as an early warning system and as a catalyst for further action. I beg to move.

Lord Hunt of Kings Heath: The noble Lord, Lord Patel, makes a powerful case. I am afraid that my answer is essentially the one that I gave to the last amendment. He has clearly raised important issues of concern. We are consulting on the right regulatory body to bring forward the three commissions that I have already put together. Clearly, issues of powers and duties of monitoring in relation to the operation of the Mental Health Act need to be considered in taking that body forward. We will announce how and when we will make that further consideration in due course, and I will ensure that the noble Lord’s comments are taken into account. I take to heart his points about the need for information on various ethnic groups, the impact that such monitoring has on services more generally and the way in which those services are organised.

Amendment No. 45 would require notification of all admissions of voluntary patients. We see a problem with that in terms of the numbers—tens of thousands of patients with mental disorder were admitted voluntarily. We are yet to be persuaded that this would improve monitoring under the Mental Health Act, but I assure the noble Lord that we definitely see a need for improvements to the functions involved in monitoring mental health legislation, which we intend to realise through a new regulator working across the whole health and adult social care sector.

Lord Patel of Bradford: I thank the Minister for his remarks. It is important that the census of all in-patients in the mental health system should achieve what we want it to. It monitors them now quite easily without service providers having any extra burden. We managed to get a one-day snapshot study, but we need the situation to be monitored on a continual basis for several reasons. Not only would that

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monitor trends and provide important information and understanding on where patients who should be detained are not detained and where patients who should not be detained are detained, but surely any practitioner who wants to put together a package of care needs such basic information. If they were treating me, they would need to know that I am Hindu, that I am a Yorkshireman, how old I am, where I come from, and what makes me tick. This is very basic information, which it should not be a burden to collect and record. I think that undertaking the census has improved practice across the board. I urge the Minister to reconsider and have further debate on this area but, in the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 46 not moved.]

Schedule 3 agreed to.

Schedule 4 agreed to.

Clauses 26 to 30 agreed to.

Clause 31 [Organisation]:

Earl Howe moved Amendment No. 47:

The noble Earl said: I will also speak to Amendment No. 48. Under the Mental Health Act 1983, the nearest relative is one of the major safeguards of the patient’s rights. The person who is identified as the nearest relative has extensive powers in relation to the detained patient in both civil and criminal cases. Where a patient has been admitted to hospital for compulsory medical treatment via the courts or via prison, the nearest relative has the power to apply to the mental health review tribunal on his behalf. This is an important safeguard, especially where the patient lacks capacity or is simply too unwell to exercise his rights to appeal against detention.

However, this does not apply to restricted patients, who under the current Act have no nearest relative. This means that many restricted patients who fail to exercise their right to appeal to the tribunal will not have their cases legally reviewed for three years, which is the point at which the Home Secretary has a duty to refer them to the tribunal. Only restricted patients lack the safeguard of having a nearest relative and I believe that there is a strong case for putting them in the same position as other Part III patients. That is what Amendment No. 47 seeks to do.

The purpose of Amendment No. 48 is to give the mental health review tribunal the power to order the transfer and leave of absence of restricted patients. That proposal originates from a recommendation made by Professor Genevra Richardson’s expert committee. She said about the current arrangements:

At the moment, the power to order transfer and leave of absence rests solely with the mental health unit of the Home Office. That is an administrative body whose decision-making has been widely criticised for rejecting the risk assessments made by professionals and for over-estimating levels of risk leading to patients being stuck in inappropriately high conditions of security. Many feel, and I am one, that it would be more appropriate for such decisions to be taken by a judicial rather than an administrative body.

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