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It would not be right to introduce a prescribed process for transfer requests of the sort that this amendment would result in. As I have said, this should be a matter of good practice. There is, of course, guidance on transfers in the draft version of the code of practice that will accompany the amended Mental Health Act, but it may be that there is more

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that can be usefully said. Indeed, I am certain that there is. We can certainly see no objection to giving guidance in the new version of the code about the possibility of transferring to another hospital; that all transfer requests should be recorded; and that written decisions should normally be issued in response to such requests. It would certainly be possible to list the sorts of factors that hospital managers should take into account when deciding whether a transfer is appropriate. The factors cited in this amendment will be relevant. But there will be others. We shall consult widely before drafting the relevant chapter of the code. Similar arrangements will be made in respect of the code of practice for Wales.

The range of factors that might be relevant in determining whether a transfer is appropriate is considerable. I agree that those mentioned in the amendment will be important, but there may be others in individual cases; for example, the level of security required may be a factor. By adopting the code of practice approach, it will be possible to get across to hospital managers more effectively than in legislation the range of factors that will be relevant.

I recognise that the amendment is extremely well intentioned and that it is necessary to ensure that recommendation 19 from the David Bennett report is properly implemented. However, in our view, the amendment would result in an overly bureaucratic and restrictive procedure, and we believe that the code of practice is much the best way to deal with these issues. Therefore, I ask the noble Earl to reconsider the amendment.

Earl Howe: I thank the Minister for her constructive reply. I would certainly settle for a set of provisions in the code of practice that laid out the kinds of consideration to which I referred. I welcome what the Minister said on that front. I hope that some work can be done on that, but I am encouraged by her statement of intent that that will be so. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 37 agreed to.

10 pm

Earl Howe moved Amendment No. 54:

(a) as a matter of urgency examined by a registered medical practitioner and interviewed by an approved mental health professional and necessary arrangements made for his treatment or care; or (b) transferred to another place of safety for that purpose.”

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The noble Earl said: We come now to a matter of considerable concern to many in the mental health community—the use of police cells as so-called places of safety. Under Section 136 of the Act, the police have a power to take a person who, in a public place,

One definition of a “place of safety” under the Act is a police station. A person can be held under that power for up to 72 hours. He need not have committed any offence, but simply to have behaved in a way to give the impression that he was mentally ill and a danger to himself or to others.

The main concern here is that a police station is not a therapeutic environment for someone experiencing acute mental health problems. The police have little training or expertise in looking after people in this condition, especially people who may be unpredictably suicidal. There is often no ready means of keeping detained individuals under observation and a person’s state of mental health can deteriorate quite quickly. There is also the widespread feeling that police stations, with their implication of wrongdoing, are inappropriate places for the management even of very disturbed mentally ill people. That feeling is reflected in the National Service Framework for Mental Health, in the current code of practice and in numerous Mental Health Act Commission reports.

The problem is that, although everyone agrees that it is a bad idea for police cells to be used for this purpose, they nevertheless are being used in that way regularly. In fact, it is estimated that police cells are used in about 80 per cent of occasions when Section 136 powers are invoked. That statistic is especially relevant to the African and Caribbean communities. Black people experiencing mental health problems are more likely to have contact with the police than people from other backgrounds are. The reasons for that are not straightforward; in some areas, part of the blame lies in poor levels of co-operation between the police and the NHS, and the failure of the NHS to take responsibility for such situations.

The results are troubling. Nick Hardwick, chair of the Independent Police Complaints Commission, estimates that 50 per cent of deaths in police custody have involved people with mental health problems. There are, perhaps, three key points that the IPCC made in its evidence to the Joint Committee. First, it said that police stations should be used as places of safety only as an absolute last resort under wholly exceptional circumstances. Secondly, it said that a duty should be placed on the relevant health authority to assess need and provide appropriate facilities. Thirdly, it said that 72 hours is far too long a time to be in a police station before a medical assessment is carried out.

The Police Federation would like to remove police stations from the legal definition of places of safety altogether. I unfortunately do not think it possible to go that far, but the Act should include a requirement

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that the place of safety must, wherever possible, be a psychiatric hospital or other therapeutic environment. Where a police station is used, there ought to be a clear requirement in the Act either to arrange an assessment or else to transfer the person to hospital within the shortest time possible. The amendment suggests a 24-hour maximum.

The Act does not currently allow patients to be moved from one place of safety to another, which seems quite extraordinary. The consequence is that vulnerable people experiencing acute mental distress are left languishing for hours while the police locate two doctors and an approved social worker to undertake a Mental Health Act assessment, even if a hospital bed is available. At the very least, the law ought to be made clearer on this point, because the ambiguity in the wording of the Act on the legality of transferring patients between places of safety has given rise to uncertainty.

I need hardly tell the Minister that there is also a human rights dimension to all this. In 2002, the Joint Committee on Human Rights had some pretty trenchant things to say on the subject and recommended that healthcare trusts should have a statutory duty to take responsibility for and look after people detained under Section 136.

The case for these changes is, I believe, very strong. I hope that the Government will look constructively on the amendment and, accordingly, I beg to move.

Baroness Neuberger: I support most strongly everything that the noble Earl, Lord Howe, has said and, with the permission of the noble Lord, Lord Stevens of Kirkwhelpington, who is not in his place, but was here earlier, I express his strong support, too. He had hoped to speak to the amendment, had we moved a little faster in the debate. Like Nick Hardwick, who was quoted by the noble Earl, the noble Lord, Lord Stevens, feels that whatever else a police cell is, it is not a place of safety for people with mental illness. Over many years, he and I have discussed the enormous problems that this situation has caused, with fragile, vulnerable and very sick people held in police cells for up to three days. The system for moving them to another place of safety is not in place. Therefore, I hope that the Minister will accept the amendment and acknowledge that we must do something.

Baroness Meacher: Having worked for eight years with the Police Complaints Authority, I, too, strongly endorse the words of the noble Earl, Lord Howe.

Lord Hunt of Kings Heath: If only I had a magic wand that could solve this problem. In fact, I have every sympathy with the points that have been raised. There is no question but that a police station is not an ideal place in which to detain a mentally ill person awaiting assessment, and that, of course, hospital-based facilities would be much more appropriate.

The issue that the Government have to deal with is that there may be occasions when a police station is the only available facility and when it is necessary, in some circumstances, to detain a person there for

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longer than 24 hours. For example, it may be impossible for a doctor and an approved mental health professional to get to the police station to examine the patient and interview him within that time, perhaps in a rural area. The person who is detained may be extremely agitated or be behaving aggressively or violently, and it might be necessary to take some time before an assessment can be made. The patient may not be co-operative. It may be difficult to get details of their identity and their family and friends. That is why we believe that sometimes it may be difficult to complete these things within 24 hours, particularly if the person is received at the police station late at night.

I understand that my answer will be frustrating for noble Lords. They may be tired of me talking about the development of good practice, but that is one answer to this problem. There are areas where there is adequate alternative provision. For example, the development of hospital-based facilities is reasonably advanced in some parts of the country. I endorse the Metropolitan Police policy whereby police stations are used only as a last resort. That approach is appropriate and is the kind of good practice that we want to develop.

I would bring some comfort to the noble Earl by saying that we are moving forward in facilitating that good practice. From April 2006, we have made available a capital package of £130 million for the improvement of the mental health estate—in particular, for the development of hospital-based places of safety. This money will facilitate an increase in hospital-based safety facilities and will reduce the reliance on police stations. We will enforce this in the code of practice that will accompany the amended Mental Health Act. The current code states that police cells should not generally be used. We plan to emphasise in the new version of the code that police stations should be used only as a last resort—for example, if nowhere more suitable is immediately available—and that assessments should be completed as soon as possible.

At the end of the day, we need to retain the ability to use police stations if necessary, and we have problems with the sort of test that the noble Earl has suggested by stipulating exceptional circumstances, which may well be over-restrictive. I was not aware of the ambiguity in the law that he suggested, and I would be happy to take that issue away and look at it.

Earl Howe: In welcoming the latter assurance, as I certainly do, I must express my disappointment with the bulk of the Minister’s reply. I do not accept his explanation. If one reads the amendment, it is clear that I do not propose removing police stations altogether from Section 136. I am quite consciously not doing so; there is a clear exception built into the wording of the amendment. I accept entirely that there are situations where there is no other option than for somebody to be in a police station—for example, in rural areas or when somebody is very violent.

Lord Hunt of Kings Heath: I do not want to delay the Committee, but the problem is the definition of exceptional circumstances and how they will operate. Clearly, we want to see a reduction in the use of police

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stations as places of safety, but I fear that the terms used in the amendment would not give enough discretion.

Earl Howe: It would be defined initially both by case law and by the code of practice, I suppose. I know that the Minister has resisted this, but I do not feel that this is something that can simply lie totally within the code of practice; there has to be something in the Bill. I wonder if the Minister could look at this amendment to see whether it could be made more acceptable. I do not say that every aspect of it is perfect. It would be extremely welcome and would avoid our bringing the matter back at the next stage if the Minister could undertake to have a second look.

Lord Hunt of Kings Heath: I have said that I will have a look at the ambiguity mentioned by the noble Earl. I can also consider the terms of the debate. However, I would not want to give him undue hope; it would be unfair to do so.

Earl Howe: I understand. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 55 not moved.]

Baroness Murphy moved Amendment No. 56:

The noble Baroness said: This is a very brief point, which has been proposed to me by patients’ groups, who feel that the penalties for ill treatment are derisory. As noble Lords know, prosecutions for ill treatment of mental health patients are very rare. We understand that this is because of the numerous factors that go into producing an abusive situation, particularly in institutions, which we are all too aware of in light of the Orchard House report.

Occasionally there is indeed one person at fault. I have seen many cases where these people have been self-selected into working with vulnerable people because of the power that they can exert over the lives of the vulnerable. Some quite horrendous cases come to light. Then there are the exceptional cases which really must be prosecuted. It seems to patients’ groups that we should have realistic penalties. These people need rooting out, particularly from services, before they can do harm. They are people for whom prosecution is appropriate and for whom real penalties are needed. I beg to move.

Lord Hunt of Kings Heath: I have considerable sympathy with the points raised by the noble Baroness and would be happy to take this back for consideration.

Baroness Murphy: I was so surprised by the Minister’s response that I almost did not rise again. I thank the Minister for that very swift response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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10.15 pm

Baroness Wilkins moved Amendment No. 57:

The noble Baroness said: This amendment calls for the repeal of Section 141 of the 1983 Act and it is strongly supported by the Disability Rights Commission and the mental health anti-stigma charity, ok2b.

Section 141 currently discriminates against MPs with mental health problems in that it contains a power to remove them from their job on mental health grounds. It provides that, if an MP is detained under the Mental Health Act, the Speaker of the House has to be notified and, and as the noble Baroness, Lady Murphy, pointed out, the MP has the distinction of two doctors specially appointed by the Royal College of Psychiatrists being sent to examine him or her. If the MP is still detained after six months, his or her seat becomes vacant. However, if an MP is unable to attend Parliament or hold constituency surgeries because of treatment for a physical illness, no such provisions apply.

Under the employment and office-holder provisions of the Disability Discrimination Act, it is unlawful to sack someone simply because they have undergone a period of hospitalisation. If someone is experiencing mental distress, the correct approach is to make reasonable adjustments—for example, to give them time off and allow a gradual return to work. MPs are excluded from the office-holder provisions of the legislation but we should surely ensure that the same process applies.

The current provisions are not only discriminatory but they make it harder for MPs to be open about experiences of mental health problems, which reinforces stigma. That is not only damaging for them—living in fear of others discovering a mental health problem causes unnecessary fear and stress—but it also means that the opportunity to act as a role model for others with mental health problems, showing that it is possible to attain leadership positions, is missed.

In 2005, the well-being charity, Together, conducted a survey of MPs' experiences of mental health. It concluded:

The organisation ok2b has inquired of the House authorities whether Section 141 of the 1983 Act has ever been used. It would appear that it has not. In the circumstances, not only is the section out of keeping with modern thinking about how best to support people with mental health problems but it also appears pointless.

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I am of course aware that the draft mental health Bills proposed revised provisions for MPs, which would have extended to Members of the devolved legislatures. They offered some improvement of the current provision but could be considered equally discriminatory. I hope that the Government will revisit this issue in discussion with the DRC, ok2b and other stakeholders and that they will undertake to reform the 1983 Act to remove this outdated provision. I beg to move.

Baroness Barker: I have said on many occasions that I believe that, if there are no other good reasons for the existence of this House, it is to speak up for those who cannot speak for themselves. On this occasion, I merely wish to congratulate the noble Baroness, Lady Wilkins, on providing a service to Members of another place who clearly are in that position.

Earl Howe: I, too, congratulate the noble Baroness. Section 141 is about the most blatant piece of discrimination against mental illness as it is possible to imagine in statute. What message would be sent out if it were ever invoked? The message would be that mental illness is equivalent to gross misconduct, on which the Speaker would have no alternative but to take drastic disciplinary action. It would be equivalent to saying that being mentally ill makes you unfit to work and unfit to represent your constituency. I cannot believe that that is what we want the law to require the Speaker in the other place to do, so I very much hope that the Government will think again about Section 141.

Lord Hunt of Kings Heath: I am grateful to noble Lords for raising this issue. However, the Committee may consider it better for the other place to have a go at this before we come to consider it again. The Government are not persuaded that we should change the legislation at the moment.

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