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Underlying that is the desirability of providing an enforceable right to treatment in the least restrictive environment, consistent with the needs of the patient and the need to protect the public. The problem of patients stuck in inappropriately high conditions of security is long standing and, while it is welcome that the Government plan to increase the provision of medium and low secure facilities, the decisions surrounding these transfers are of such importance to the individual’s liberty that they really should lie in the hands of the mental health review tribunal.

The tribunal is best placed to make decisions about the level of security that a patient requires, having heard all the medical evidence with representations from the patient. So I put it to the Minister that it is both wasteful and unjust not to allow the tribunal to act on that information. Of course I do not say that the Home Office should not continue to have oversight of the individual restriction order cases. The Home Office is the place where the continual history of a long-term dangerous patient is located and it should retain that oversight role. However, the decision-making arrangements need to be revised. I hope that the Government will be sympathetic to these amendments and I beg to move.

9.15 pm

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): I am addressing these amendments because I have responsibility for the tribunal service within the Department for Constitutional Affairs and because the mental health review tribunal falls within my remit. In this context, I am also responding on behalf of the Home Office, for this falls fairly and squarely within its remit. I am grateful to the noble Earl for so succinctly putting the issues relating to Amendments Nos. 47 and 48 before us.

As the noble Earl said, the nearest relative provisions of the 1983 Act do not currently apply to decisions made in respect of restricted patients, so a question would automatically be prompted by the proposals in Amendment No. 47 about whether we ought to be looking to extend those principles to apply to the restriction order in all circumstances. It is a fact that the regime for the management of restricted patients is intentionally different from that for unrestricted patients. The noble Earl alluded to that in any event. Restricted patients are people

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convicted of serious offences whom the courts have found to pose a risk of serious harm to others, or if they are serving prisoners transferred to prison for specialist services. They are people who, instead of being required to serve a prison sentence, have been ordered to be detained in hospital subject to special restrictions for the protection of others. As the noble Earl also indicated, the decision on the discharge of restricted patients is made either by the Home Secretary or by the tribunal. He will know that the 1983 Act allows the tribunal to make that decision on the basis of a European Court of Human Rights decision, and that is accepted and part of our legislation.

It is not to me apparent that we would derive much benefit for the restricted patient in being able to divert to the nearest relative the rights of reply to the tribunal. I hear what the noble Earl said and, as ever, I will think about it. However, in the case of a transferred prisoner, the effect of a tribunal’s finding that he is not properly detained in hospital is return to prison. The nearest relative provisions are not relevant to the management of a restricted patient. These are patients required by law to be managed on the basis of the need to protect others from serious harm. I fear that we would not be able to achieve what the noble Earl wishes to achieve in Amendment No. 47. However, I will, as I have indicated, think about the issue in our deliberations between now and Report.

On Amendment No. 48, I acknowledge the work of Professor Richardson, but of course there is the recommendation of the pre-legislative scrutiny committee to allow the tribunal to be given the power over the transfer and leave of absence of restricted patients, which fundamentally alters the arrangements for risk management of restricted patients, taking away from the Home Secretary his sole responsibility for decision-making on the risk management of detained and restricted patients. As I understand it, the Home Office takes 2,500 decisions annually on the leave and transfer of restricted patients. I hear the noble Lord’s concern about the Home Office’s role, but in the majority of cases applications are dealt with and responses delivered within the target dates, which are three weeks for leave of applications and two months for transfers.

I am not entirely convinced that the tribunal, with due respect to its work, could improve on that performance without a vast increase in resources. It currently considers about 15,000 applications for discharge on a once-a-year basis. The management of restricted patients is complex. It is not an accident. It is the result of a balance between the rights of the public to be protected from serious harm and the rights of the patients. As I have indicated, the courts can divert restricted patients or offenders convicted in the courts from prison sentences to be treated in hospital. Diversion under a restricted hospital order means that there is no tariff to serve; there is no element of punishment in that sentence.

The function of the Home Secretary and the tribunal is, if I may describe it as such, a constructive tension. The Home Secretary’s responsibility is to

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protect the public, balanced by the tribunal’s power to discharge the patient from detention if it is not satisfied that that is justified by the patient’s disorder and the risks that arise from it. Checking the figures today with officials, I understand that 75 per cent of restricted patients are discharged.

The effect that we are conscious of is that, if the tribunal were given the additional responsibility to regulate the pace of the patient’s rehabilitation by being able to order, transfer and lead for the patient, we would be in danger of undermining the Home Secretary’s power to protect the public—the constructive tension to which I referred. We think that, because the Home Office is dealing with matters effectively, the current system works well, and that the tribunal’s ability at the end to be able to discharge the patient under the 1983 Act is the right way to go forward. I will of course consider the matter further with colleagues in the Home Office, but at this stage I believe that the balance is right. I hope that the noble Earl will withdraw his amendment.

Earl Howe: I am grateful to the Minister. I take serious note of the points that she made, which in all conscience I must reflect on. I thank her for a full reply and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 48 not moved.]

Earl Howe moved Amendment No. 49:

(a) service users; and (b) carers; and to take full account of issues of diversity including ethnicity, gender and religion.””

The noble Earl said: This amendment and Amendment No. 50 deal with the membership of the mental health review tribunal, which rarely includes people who have experienced a mental illness or others who may have a lot to offer from their experience of mental illness and mental health services. There is a strongly and widely held view that as a matter of principle the lay member of the tribunal should wherever possible have experience of mental health services as a user or carer or a volunteer or employee who works with and can represent any of those groups.

That would be consistent with, for example, employment tribunals, which contain representatives of both management and employees. It would also be consistent with increased service user and carer involvement in the provision of mental health services. For example, many mental health trusts such as the South West London and St George’s Mental Health NHS Trust are recruiting and employing service users in clinical teams.

I also propose that tribunals should include members from the black and ethnic minority communities. If we think it important, as I am sure it is, that the tribunals are able to take full account of a

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person’s culture and circumstances, I suggest to the Minister that that idea should be adopted as standard practice. Cultural differences can create difficulties between patient and clinician and thus cause problems in diagnosis and treatment. In some black communities symptoms of mental illness might be manifested through the suggestion that there might be possessing spirits or that inexplicable misfortunes have occurred. Tribunals need to take full account of a person’s culture and circumstances and the language in which they most often communicate.

BME representation on the tribunals can therefore be extremely helpful, wherever that is appropriate. That is especially important when we bear in mind that at present, African-Caribbean people are more likely to be detained and receive higher doses of medication than the population as a whole.

It is worth reminding ourselves that the Government’s action plan Delivering Race Equality in Mental Health Care includes among its goals for 2010 less fear of services among BME communities, a reduction in the rates of compulsory detention of BME service users, and a more active role for BME communities and BME service users in the planning and provision of services. Appropriate BME representation on tribunals would play a significant part in meeting those goals.

Tribunals should also specifically contain at least one person of the same gender as the person whose case is being heard. There are particular gender issues to consider, including, in respect of medication, sexual functioning, menstruation and risks to a foetus during pregnancy.

Equally, where a tribunal meets to consider the needs of children and young people under 18, it surely must include the expertise required to determine those things. As has been said already, children and young people under 18 are not adults; they process and react to issues in a different way. Normally they are dependent on adults for their daily living arrangements, and very often those adults are their parents. Practitioners who specialise in child and adolescent mental health will have the ability to assess the young person’s developmental level and social circumstances and be aware of their educational needs when determining whether the young person requires compulsory treatment or should be discharged.

Where the child or young person is subject to aftercare under Section 117, at least one member of the tribunal should have specialist knowledge of child and adolescent mental health services and children’s services and what should be made available to under-18s when placing conditions prior to discharge.

I hope that the Minister will look constructively on these proposals. I beg to move.

Lord Patel of Bradford: I support the amendments. In respect of Amendment No. 49, we have heard it stated many times in our debates on the Bill that the chance to review mental health legislation comes about every 25 years. We have also heard, especially from Ministers in relation to setting principles in

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statute, that over the course of these quarter centuries, societal values may change and statutory requirements become dated.

In the case of the statutory requirements relating to the constitution of the mental health review tribunal, we have a case in point. The current statute requires multi-disciplinary input to the lay membership of tribunals, with particular emphasis on such persons “with experience in administration” or “knowledge of social services”. I have no wish to suggest that persons falling within these categories are not important or needed—indeed, I fall into at least one of them myself—but were we to draft this today, it would be inconceivable that we would not specifically include, and give priority to, service users and carers, who are “experts by experience”.

Furthermore, given the over-representation of black and minority ethnic patients under compulsion and the widespread suspicion of services in the black community, this is a good opportunity to underline the importance of taking into account diversity issues in the appointment of tribunal members. I hope that we will grasp this opportunity to update the statutory language around this part of the Act.

In respect of Amendment No. 50, I can say with some certainty that noble Lords need no reminding of the quite shocking examples and statistics that have been provided throughout our debates about the widespread placement of children and adolescents on adult wards, with inappropriate provision made for their safe and effective care and treatment.

The Government recognise the problem that children and adolescents may be detained in adult facilities for want of an appropriate CAMHS bed, but it is a problem that has not yet found resolution. The amendment addresses one side effect, if you will, of the often inappropriate placement of child and adolescent patients.

Mental health professionals working on adult wards where children are inappropriately placed may find themselves disempowered by their own lack of skills and knowledge in child and adolescent mental health care. This can place children in an additionally vulnerable position when it comes to the deliberations of the mental health review tribunal, because the tribunal may not, in its dealings with staff at the detaining authority, meet with the relevant expertise that should be available to it at its hearings.

I therefore support the amendment, which aims to ensure that the determination by a tribunal of whether compulsion under the 1983 Act is appropriate for children and adolescents involves professionals with appropriate expertise in these areas.

9.30 pm

Baroness Ashton of Upholland: I am very grateful to noble Lords who have spoken in this debate. As I indicated earlier, I am especially interested because the work of the tribunal service now rests with me within the Department for Constitutional Affairs. One of the things that I have been doing is reviewing the role of non-legal members of tribunals, and I have

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had the good fortune to meet more than 100 members who we classify as non-legal members—I am looking for a better term than that. Included in that description are medical professionals of one kind or another and those who sit on the Mental Health Review Tribunal.

I have the appropriate reactions of a Minister to statute—that it is very difficult to change it—so I do not want to accept this amendment, but I share the concerns of noble Lords. I looked at the minority ethnic breakdown in the statistics about those involved in mental health review tribunals, and the membership is 76 per cent white, 9 per cent Asian, 2 per cent black, 13 per cent not stated and 0.004 per cent Chinese. We need to think very carefully about the flexibility and membership of the tribunal service. One of my ambitions is to reflect the breakdown and mix of our society better in the tribunal service in terms of ethnicity and, going back to Amendment No. 49, the mix of those who use and understand the service. There is nothing between the Department of Health and my department on this issue—my noble friend Lord Hunt of Kings Heath is nodding. We want to achieve that mix. I do not want to put that in statute, but we will do the best we can.

Having chaired a health authority, I have a lot of experience of the issues and needs of child and adolescent mental health services and of trying to develop a good service right across the country to support children with these problems. Noble Lords will no doubt have talked far longer than I can about their questions and concerns. It is difficult to commit in statute that one could immediately get to the point of being able to put somebody with that expertise on the panel in the tribunal service on all occasions. I cannot do that. What I am prepared to commit to is that no child should appear before a tribunal unless he has been seen or supported in some way by someone with the expertise to reflect the fact that he is a young person, an adolescent, under 18 or so on. That might be done in the process of getting to the tribunal by having the opportunity to meet somebody from the service, it might be done by somebody on the panel or there might be other opportunities. My ambition is to get to the point where it is set in stone that that facility is available. I do not have enough people to be able to offer that now, but I will offer to make sure that from now on children who have not had the opportunity of that expertise do not appear before the tribunal. Noble Lords will appreciate that that is a huge commitment.

I ask the noble Earl to withdraw the amendment because I cannot put that commitment in statute. I also ask him to recognise that I share the ambitions in both the amendments in this group. I see that the noble Lord, Lord Newton of Braintree, who is president of the Council on Tribunals, is in the Chamber. He is the key person working with me on this, and we are committed to achieving it. I am sure that we can because behind the amendments are serious and important issues that we need to address.

Earl Howe: That statement of intent from the Minister is very welcome. I am sure that the Committee is glad that she is marching with us on this

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one. It would be doubly good if, at some point, we could hear from her about how she and her officials plan to deliver that.

Baroness Ashton of Upholland: I am sorry to interrupt the noble Earl, but he is right to suggest that. We plan to produce a strategic document about the role and future of the tribunal service very shortly, and that will provide opportunities for noble Lords to come back to me on the commitments that I have made.

Earl Howe: I am most grateful and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 50 not moved.]

Clause 31 agreed to.

Earl Howe moved Amendment No. 51:

(a) the patient lacks capacity to decide whether to make such an application; and (b) there is any good reason why such an application should not be made.

The noble Earl said: The purpose of the amendment is to address a significant gap in the mental health review tribunal system in respect of patients who do not apply for review of their cases because they lack the mental capacity to make their own decisions. Although such patients enjoy a right of appeal to the mental health review tribunal, in practice the right is not exercised because the patients themselves fail to appreciate the options available to them. In certain cases this has meant that mentally incapable individuals have received inappropriate treatment or endured wholly disproportionate restrictions without the benefit of effective review because no application was made on their behalf.

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