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The amendment seeks to remedy this protection gap by imposing a duty on hospital managers to assess patients who have not exercised their right to apply to the tribunal and determine if there is any reason why an application should not be made, having particular regard to whether the patient has the mental capacity to take such a decision themselves. The draft clause creates a presumption that hospital managers should refer such cases to the

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tribunal unless there are good reasons not to. The duty on managers to assess non-appealing patients, together with the presumption that referral should be made, would help to ensure that patients lacking capacity would enjoy the benefits of the tribunal review. At the same time, the use of a presumption would also avoid the dangers of automatic referrals of all patients lacking capacity as there may well be circumstances when a patient lacking capacity has none the less clearly expressed a wish not to undergo the appeal process and its associated assessment procedures. I beg to move.

Baroness Ashton of Upholland: I am grateful to the noble Earl for raising this issue. Noble Lords will know from their deliberations on the Bill that all civil patients have the safeguard of a nearest relative. The nearest relative has the right to discharge a patient at any time and, where that discharge is barred, the nearest relative can apply to the tribunal to challenge that detention. The right of a patient to apply to the tribunal and the additional rights of the nearest relative to apply must be explained to the patient by the hospital managers. That is a statutory requirement under Section 132. However, if the patient does not use the right to apply to the tribunal, Section 68 provides the backstop for patients, ensuring that all unrestricted patients, not only those who lack capacity, have the safeguard of an independent review of their case.

We think the time periods within Section 68 are appropriate. They ensure that a civil patient who has not applied for a tribunal or otherwise been referred will be referred by the hospital managers after an initial six months of detention. We have expanded the group of patients to whom this applies to ensure that it includes patients who remain on a Section 2 by virtue of a County Court procedure to displace their nearest relative under Section 29. The period spent under Section 2 will, with the new provisions, be taken into account when calculating the six-month period to referral. This is an important move; the 28 days is part of the six months. In addition, all unrestricted patients will be referred to the tribunal every three years, as the noble Earl has indicated, if they are adults, and every year if they are under 16.

The Bill introduces the option to reduce these periods—which, in a sense, is what the noble Earl is after—so that the backstop safeguard of a tribunal for all patients who do not apply will occur sooner. The Secretary of State and the Welsh Ministers will use this power when they are certain that the resources in the NHS, local authorities and the mental health review tribunal can be made available without affecting the provision of mental health services to patients with mental disorders. The commitment we make is that we will achieve that through a combination of the Department of Health and the Department for Constitutional Affairs. It is our intention to reduce the time although I am not able at this point to give noble Lords a timescale for it.

The problem with the amendment is that we would almost certainly end up with a more or less immediate increase in tribunal referrals, which may or may not

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be wanted by the patients concerned, and require hospital managers to arrange for every detained patient who does not apply for a tribunal to be assessed to determine whether they have the capacity to make such an application. In other words, rather than relying on managers to keep an eye out for patients whose lack of capacity may require steps to be taken, it forces managers to assess capacity indiscriminately; and because capacity is, of course, specific to particular decisions, it is not the same as assessing the capacity to consent to treatment, for example. So it should not be assumed that this assessment will be carried out anyway as a routine part of patient care.

The noble Earl makes a good point about the length of time. We think the best way to address that is, within the provisions of the Bill, to consider reducing that time when we are able to do so—we commit to do that—and in that way achieve what the noble Earl wishes. However, it is important to ensure that we have safeguards for mental health patients, including those who lack capacity. We think the provisions in the Bill provide the most effective way of recognising our desire to reduce the timescale. I hope the noble Earl will feel able to withdraw his amendment.

Earl Howe: Once again, that is a helpful reply. I do not doubt that the Minister is totally sincere in what she says, and that the Government intend to reduce that period when they can. I would welcome that. I bear in mind, however, that since 1983 we have had a provision in the Act to enable the Secretary of State to reduce the three-month period, and nothing has happened under successive Governments, so, with the best will in the world, intentions can fall by the wayside. Nevertheless, I shall reflect carefully on what the Minister has said, and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 51A not moved.]

Clause 32 agreed to.

Schedule 5 agreed to.

Clauses 33 and 34 agreed to.

Earl Howe moved Amendment No. 52:

The noble Earl said: The purpose of this amendment is to extend the scope of the offence of obstruction of persons performing functions under the Act to include inducements or threats, if made with the intention of improperly influencing a decision. The rationale for this broadening of the offence is that it would strengthen the position of approved mental health professionals in resisting pressures from managers or more senior colleagues to act in a particular way. The pressure would have to be

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improper. In other words, it would not preclude the strong expression of legitimate professional opinions, but would include any threat to the AMHP’s job security or promotion prospects.

This is part of a wider issue about the independence of AMHPs. There is a widely held view that recruitment of NHS-employed health professionals as AMHPs will further exacerbate the erosion of independence that AMHPs should have from the hospital and the doctors, a process that is already occurring as a result of the secondment or transfer of approved social workers to mental health trusts. The ASWs are, technically, still employed by the local authority while acting in their statutory role, but in many cases their managers have also been seconded or transferred to the trust, so the independent role of local government in the compulsory admission process, which has been a basic element of that process since 1959, is becoming largely a fiction.

As a result, the process no longer meets the current human rights standard for the making of decisions involving loss of liberty, in that the two most powerful decision-makers, the ASW and the consultant psychiatrist, may well be close colleagues in the same team, both of them responsible for the trust that runs the hospital to which the patient would be admitted. The Government acknowledged that at the beginning of the review of the legislation in 1998, and their solution was to require all initial decisions to be confirmed by an early tribunal hearing. Now that this proposal has been abandoned, it is essential that corrective action is taken to ensure that the process meets accepted standards for impartiality and objectivity.

As part of that, the legal position of AMHPs needs to be strengthened to protect them from improper influence from trust managers or more senior trust colleagues. The Government have dismissed that concern, but, having spoken to members of the Mental Health Alliance, I have no doubt whatever that it is a real issue. The amendment would ensure that AMHPs are, and are seen to be, independent of the doctors and the hospital, that their decisions cannot be overruled by the local authority and that they are able to exercise their professional judgment, free of improper influence. I beg to move.

Baroness Royall of Blaisdon: I am aware that the introduction of the new AMHP role and the loss of the requirement for the individual to be employed by the local authority have led to concerns that pressure could be applied to AMHPs acting on behalf of a local authority, but employed by the same trust as doctors carrying out mental health assessments or hospital managers dealing with bed shortages. I understand the rationale outlined by the noble Earl, Lord Howe.

The amendment would make it an offence for any person to offer an inducement or make a threat with a view to improperly influencing a decision made under the Act. That could include patients and their relatives acting inadvisably but in reaction to difficult circumstances. I am sure that noble Lords would

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agree that in most cases it would be inappropriate to criminalise that behaviour. Instead it should be dealt with sensitively on an informal basis by the professionals involved.

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Of course, it is a different matter if a healthcare professional or other NHS or local authority employee seeks to influence decision-making improperly through bribes or threats, but existing legislation makes such behaviour an offence. Such incentives would amount to misconduct under an employee’s contract of employment and could lead to disciplinary action. It could also amount to harassment under the Protection from Harassment Act 1997. Behaviour intended to stop an AMHP, or any other professional, from making the independent decision that they are required to make under the Act could contravene Section 129(1)(d) of the Mental Health Act. That prevents someone obstructing a person in the exercise of their functions under the Act. Clearly, there are already legal provisions that make the improper influence of a public servant an offence. In addition, such behaviour would be extremely bad practice and should be properly addressed in employers’ behavioural standards and professional codes of conduct.

I note the concerns of the noble Earl about independence. We believe that training for key professionals will address the independent decision-making functions of individuals under the Act. Training for approved clinicians, who will take on the current functions of the responsible medical officer, will cover the role of the AMHP, and particularly the AMHP’s duty to make an independent decision about whether an application should be made. The training and approval criteria for AMHPs will stress the important skills required to express an independent view.

The noble Earl spoke of the circumstances under which professionals who consider whether a patient should be detained should work in the same team. I noted his concerns. The code of practice for England will state that an AMHP should not be in a direct line-management relationship with either of the examining doctors; but to say that they must all work in separate teams goes against years of attempting to try to integrate services and could lead to unnecessary delays in assessing a patient.

Social workers increasingly work within combined social services health teams. In future, teams are likely to be combined in other ways, such as in-patient and crisis services. One of the advantages of broadening the professional groups that can become AMHPs is that it will be easier for crisis resolution and home treatment services carrying out an urgent assessment to progress that to Mental Health Act assessment, without having to involve a professional from outside the team, which can cause distressing delay and repetition of assessments for patients. In addition, requiring the AMHP and examining doctors to work in different teams could make it more difficult to identify appropriate assessors, causing distressing delay for patients.

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I believe that the Mental Health Act and the wider legislative framework, in conjunction with professional codes of conduct and employers’ behavioural standards, are sufficient to guard against improper influence of professionals making decisions under the Act without the need for additional legislation. Therefore, I invite the noble Earl to reconsider the amendment.

Earl Howe: That was a helpful reply, on which I shall reflect carefully. However, this is an area where theory sometimes tends to become detached from practice. The problem is that the professional status within an organisation of relatively junior employees—social workers, nurses and occupational therapists, for example—who are likely to act as AMHPs will be vastly less than that of the consultant psychiatrists, some of whom will carry senior management responsibilities. Many seconded ASWs already report that they have come under great pressure to act, or not to act, in a particular way. I suggest that members of health professions are likely to be more vulnerable to such pressure. Such things can be hidden; they do not necessarily come out; and it is very difficult to guard against them, whatever codes of practice are in place. Nevertheless, I take on board all the points made by the Minister and I beg leave to withdraw the amendment for the time being.

Amendment, by leave, withdrawn.

Clauses 35 and 36 agreed to.

Earl Howe moved Amendment No. 53:

The noble Earl said: The amendment brings us back to an issue to which we have referred a number of times during Committee; namely, the particular difficulties encountered by mental health patients from black and ethnic-minority communities. Inequality in mental health services between black people and the majority white population has been the subject of debate and study for decades. It is well documented that people from BME communities, African and Caribbean people in particular, fare worse under the British mental health system than under many others. Most ethnic minorities tend to live in cities, but patients from ethnic minorities are often transferred to hospitals in rural areas, where there are very few black staff, which often leads to black patients feeling alienated.

A black patient who has lived in an urban area all his life and who is then transferred to a remote rural hospital could well find it alienating and frightening,

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especially as staffing in rural areas is rarely diverse. Recommendation 19 of the report of the David Bennett inquiry stated:

The Government accepted this recommendation and made it a priority policy area in their response to the Bennett inquiry report and in the Delivering Race Equality in Mental Health Care action plan, published in January 2005. However, since its publication, the action plan has been beset with controversy, not least because the £16 million allocated for the implementation of the programme has not reached targets set out in the report. Prompted by the Mental Health Alliance, I therefore propose that this provision should be set out in statute to ensure that it is prioritised by policy-makers. It is also crucial that the right to move hospital is clearly stated in the Mental Health Act to ensure that clinicians and hospital managers are left in no doubt that it has statutory force which must be followed.

The Government’s response accepted in principle that every request should be considered carefully and receive a reasoned response that takes into account the needs of the service user and their assessed best interests. A BME patient's wish to be close to their family, or to be cared for in a more ethnically mixed environment, should be listened to, recorded and met unless there is a good reason not to meet it. It is good practice for refusal to be explained in writing. That is the simple purpose of this amendment. I beg to move.

Lord Patel of Bradford: I have put my name to this amendment because the suggested change in the law would be an empowering measure for patients. It would provide a counterweight to the broad powers over patients that are given to detaining authorities.

It is not uncommon for a patient or relative to express a wish for a transfer between hospitals, whether this is to be nearer home or because of a preference for one hospital's regime over another. We should be mindful that it is current government policy that prospective patients across the rest of the NHS should be encouraged to express choices in hospital care and that they should be acted on. If we cannot extend this agenda around choice to psychiatric patients, even in this limited way, we risk further excluding them and increasing the stigma of psychiatric treatment.

The title of the proposed new clause is perhaps a misnomer as the “right” to which it refers is not the right for a patient to move hospital, but a right to have any request for such a move treated with appropriate seriousness by the detaining authority. There is therefore no reason for the Minister to reject the amendment on the grounds that it provides some form of positive right to treatment that can be exercised only at the expense of equitable provision within the NHS. That is not an issue here.

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The Minister will forgive me for anticipating what may be in his brief for this part of the debate, but I do not believe that the amendment raises problems in relation to what might be termed “vexatious petitioners”; in other words, patients or relatives who make repeated and ceaseless requests for the same thing. I recall that the Minister was concerned about this issue in relation to Amendment No. 19. He was anxious over the staff time that might be spent on repeating the reasons why a request had been denied and the effect on some patients of having such a denial repeated endlessly back to them.

I think that these concerns are misplaced. Over the years, hospitals have learnt to manage such situations in relation to requests for managers' review of detention, when there are no limits on the frequency or number of requests that may be made for a hearing. If the managers have recently denied a request, giving reasons, and that request is repeated without any change of circumstances, I am sure that it is adequate to refer the patient or relative to the reasons already provided.

I support the amendment primarily because it is necessary to build some counter weights into the 1983 Act to compel the worst practitioners into treating patients with greater respect. We need not worry about overburdening good practitioners with unnecessary statutory requirements. If they are any good the statutory requirements will underpin practices that we already have in place. It is the law’s place in this area to establish minimum standards, and this should be one such standard.

Baroness Royall of Blaisdon: I am grateful to noble Lords for tabling this amendment on the arrangements that govern the transfer of a patient from one hospital to another. I recognise the issues relating to BME patients as explained by the noble Earl, Lord Howe, and the noble Lord, Lord Patel. The amendment raises important issues of good practice and reflects one of the recommendations of the independent inquiry into the death of David Bennett, a mentally disordered person who died at the Norvic Clinic in Norwich in October 1998. We accepted recommendation 19, but we recognise that it is not being properly implemented. However, we do not think this amendment is necessary.

Transfers are arranged at the discretion of hospital managers, but patients and their families can make informal representations to hospital managers requesting a transfer, and hospital managers should consider any reasonable request. When doing so, they take account of such factors as the availability of beds and staff at the other hospital; the availability of suitable facilities there; and easier access for the patient to family and friends. These are just examples; there may be other relevant factors.

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