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However, we need to go further than that. If we allow CTOs to be imposed on every patient who falls into that category, we run a big risk of leaving very wide scope for these powers to be used on people who will derive no benefit from them. There is simply no evidence that, for the majority of patients, coercion in the community works better than an informal regime of community supervision and care. If coercion is used, it must be justifiable.

For that reason, I have also argued under the amendments that we should seek to restrict the application of CTOs to a relatively narrow group, commonly referred to as revolving-door patients. They are defined by a three-pronged criterion. The first prong is that, on at least one occasion for the current admission under Section 3, the person has refused to accept medical treatment for a mental disorder. The second is that, when appropriate medical treatment has been refused in the past, there has been a significant relapse in his condition justifying compulsory admission to hospital. The third is that, when the person was admitted compulsorily, medical treatment resulted in an improvement in his condition or prevented its deterioration.

The conditions therefore link the previous refusal of treatment which results in admission with the proven benefit to the patient from the treatment proposed. They then require a relapse to have occurred because of the failure to continue with the medication. Furthermore, the doctor must be clear that the patient is unlikely to continue with the medication without an order. In that way, the legislation will make clear to professionals that the key criteria are: previous relapse, proven therapeutic benefit from treatment and the need—the need—for compulsion.

The amendment also stipulates that any decision to place a patient on a CTO must involve a medical practitioner. That is because only a medical practitioner can take what are essentially medical decisions—what is the person's mental disorder, how severe it is, how likely it is that the patient will comply with medication, the risk of relapse and so on.

I do not expect the Minister to change his position on the issue. He has previously resisted any narrowing-down of the criteria for CTOs. We are therefore likely to remain as far apart at the end of this debate as we were at the beginning. That is not a happy state of affairs, but it does not detract from my belief that the amendments represent the right way to proceed, for all the reasons that I have given. I therefore beg to move.

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Lord Carlile of Berriew: My Lords, we support the amendments moved by the noble Earl for the reasons that he has given. I simply want to remind the House of Chapter 5 of the report of the joint scrutiny committee. We heard a great deal of evidence about community treatment orders. As paragraph 205 of Volume 1 of our report records, on balance, we came down in favour of limited compulsion in the community. We heard a great deal of evidence from both home and abroad, and we invite the Government to take the view that the amendments provide an appropriate restriction on a power which, we on the committee fear, might become overused as a substitute for residential compulsory treatment.

Lord Alderdice: My Lords, I want briefly to appeal to the Minister and the House to recognise that these are complex disorders and situations. It is a fantasy to believe that the first time that a psychiatrist meets such a patient they will know precisely what is the diagnosis; that, even if they do, they will know what is the best treatment; and, even more contentiously, that they will be clear about the prognosis. To believe otherwise is to be in cloud-cuckoo-land. These are complex, difficult disorders. Until one sees how they work out in practice—whether patients relapse; whether particular treatments work; whether compulsion, inpatient or outpatient treatment works best—other than from the experience of working with the patient, one cannot know. To embark on compulsion from an early stage is, at best, unwise and, at worst, professionally irresponsible.

The Lord Bishop of Worcester: My Lords, I just add a brief word about the contrary pull of compulsion and therapy. Obviously, I am not a medical practitioner, but I often have to deal with people who need to, if I may put it this way, do some work on themselves if they are to flourish and make a continued good contribution.

I have never known a case where compulsion assisted in that process. It is always to be undertaken with the greatest reluctance because of its counter-therapeutic effect. The patient—the person—is deflected from an engagement with the forces within that have to be engaged with into a preoccupation with the forces of the authority that has required the patient to have treatment. As I say, that is counter-therapeutic; therefore, the narrowing of the criteria—imposing statutory reluctance, as it were—seems to be of the first importance.

Baroness Murphy: My Lords, I am very disappointed overall. Although I have moved a long way personally in my response to the Government's proposals—I no longer oppose them fully—we do not even have agreement to the constraints that would restrict community treatment orders to the very group that the Government have said they want to be subject to the orders. I remain very concerned that a young person who has a first breakdown—20 per cent will never have a relapse—may be placed on an order, come into hospital and remain on an order at intermittent review, without ever having had the opportunity to demonstrate their non-compliance with the medication.

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At the very minimum, we should have some restriction that enables that person to demonstrate that they can build a relationship and become engaged in treatment. As the legislation stands, that may not be possible. What signal does that send to young people in the community, the very ones whom we want to encourage into treatment at the first symptoms of their illness? I strongly support the amendments to constrain the orders and still believe that we would catch under the order the very people whom we would like to engage in treatment for longer.

Lord Hunt of Kings Heath: My Lords, this has been a short, although, if I may say so, sober debate on supervised community treatment, which is one of the pillars of the legislation. We had a good debate on the principles of supervised community treatment in Committee. Although noble Lords opposite and those on the Cross Benches have concerns about supervised community treatment, they have also made clear—the noble Earl, Lord Howe, certainly, did—that supervised community treatment is not opposed outright.

However, there is clearly a big gap between the Government and other noble Lords on the benefits that we believe supervised community treatment will bring and on other views. For instance, the noble Earl, Lord Howe, talked about the coercive element of supervised community treatment undermining confidence and trust and referred to the positive nature of assertive outreach work. He suggested that that might be undermined by the use of supervised community treatment. Clearly, the Government disagree. We think that supervised community treatment is complementary to the progressive work being done in the development of mental health services. I reiterate the comment that I made in Committee, which the noble Lord read back, that if supervised community treatment can be provided as an alternative to compulsory treatment in hospital, surely that must be to the advantage of many patients.

6 pm

Before I give my technical response to the amendments, I should point out that supervised community treatment, in contrast with that in other countries, can apply only to those patients who would already have been detained under the Mental Health Act. The strong criteria in Clause 26, on page 15, against which a person must be tested for a community treatment order, very much mirror the criteria that would apply to a person having to be detained in hospital in the first place. I know that we are going to debate some of the safeguards in the next two groups of amendments, but I must say at this point that the amendment ignores what the Government believe are very strong safeguards in the Bill for people placed under supervised community treatment. That is my answer to the noble Lord, Lord Alderdice. Of course I accept his point about the complexity of the issues. As a lay person, I do not begin to underestimate the difficult decisions that psychiatrists, responsible clinicians or approved mental health practitioners will have to take, not only in relation to provisions in the Bill but more generally

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in their work. The fact that a person to whom supervised community treatment applies will have already been detained under the Mental Health Act is a response to the fear that thousands of people will suddenly be compulsorily detained in the community. Noble Lords will know that we estimated that, over five years, it would apply to a few thousand people. We do not believe that it will be overused or that it will be a substitute for hospital treatment. We believe that supervised community treatment sets a very positive example for a number of people who have been detained.

There are a number of elements to the amendments that the noble Earl has tabled, some of which we have debated in earlier stages of the Bill. Amendment No. 33B relates to the role of a medical practitioner in the decision to place a patient under a community treatment order. It is very important that provision is made in the Bill for a patient’s responsible clinician and that the ability to be a responsible clinician has been widened from being simply a medical practitioner. That is a very important element of the proposals that we put before your Lordships. It is worth making the point that the responsible clinician alone cannot make the CTO but must have the agreement of an approved mental health practitioner. Responsible clinicians should consult the multi-disciplinary team, who will provide the necessary input.

I reiterate a point made by my noble friend on Report: there is no question of the responsible clinician being able to dictate to a doctor the medication for a particular individual. That cannot arise. As my noble friend said, the decision must rest with the individual doctor prescribing that medication. Nothing in the Bill changes that. There are real benefits in having responsible clinicians who may not be medics but who will be senior professionals in their field and will have demonstrated the highest skill and expertise in mental health and undergone specialist training. The skills, experience and expertise will be enshrined in—

Baroness Meacher: My Lords, does the Minister accept that a consultant psychiatrist has had 13 years of training to create the tools for him to make these very difficult judgments? When he mentions other professionals and training, I think that we are probably assuming that he means perhaps days or weeks of training. Does he really think that, in the case of someone suffering from a psychotic illness, anyone other than a psychiatrist, who has had the many, many years of training and experience that I mentioned, can develop the expertise to make these judgments to impose on the individual, possibly for very long periods, a requirement to take medications that that clinician will not understand and the side effects of which that clinician will not understand? Does it not seem incongruous to the Minister to have people taking decisions that they simply do not have the competence to take?

Lord Hunt of Kings Heath: My Lords, I simply do not recognise the possibility that the noble Baroness describes. She referred, for instance, to a few weeks’

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training. Let me disabuse her of that notion immediately. We are talking about people who have been senior professionals in their particular field for a considerable number of years; I do not want to specify the exact number. That is the point of directions, which will have the force of law. These issues are being, and will be, agreed with stakeholders, including the Royal College of Psychiatrists.

Baroness Meacher: My Lords, of course other professionals may have had several years of training in their professions to develop the tools to enable them to undertake their professional duties. However, those professionals will be experts on behavioural therapy and all sorts of other things, but they will not be experts on the treatments that are required by psychotic patients. That is the concern. I think that many of us in this House will be very happy for, say, a psychologist to be responsible for making a community treatment order for someone with a personality disorder once the assessment has been made of that person to ensure that that disorder was not in some way complicated by a psychotic disorder. My concern is that there is no indication in the Bill that people with a psychotic disorder should be put under a community treatment order only by someone who understands the full implications of that decision and the treatment to which that person will be subjected.

Lord Hunt of Kings Heath: My Lords, the problem with the route that the noble Baroness is taking is that if a responsible clinician, subject to approval by the approved mental health practitioner, cannot take certain decisions in relation to a community treatment order, you undermine the role of that clinician. I do not want to be pushed into a corner and give a definite statement in response to an instance that she has given, but my general understanding is that, in the kind of situations that she has described, a consultant psychiatrist is the most likely responsible clinician. My problem with the amendment is that it is saying in essence that the responsible clinician cannot in the end accept responsibility. I have received a number of comments from bodies such as the British Psychological Society and the Royal College of Nursing, as well as from a consultant psychiatrist, expressing concern that, however much the amendment as proposed is well intentioned, its ultimate impact will be to undermine the whole concept of the responsible clinician who in the end has to accept responsibility.

Lord Alderdice: My Lords, I want to draw two issues to the Minister’s attention. First, it is not possible for the responsible clinician to take responsibility for a medication unless they are qualified to prescribe it. Secondly, the person who is responsible for prescribing a medication may be in the position of having to continue to prescribe it within a context that they do not agree with, because it is required only that there be a consultation. We all know from years of working with Governments how much consultation can sometimes mean in terms of real decision-making. Therefore, the medical practitioner will be in the position either of having to continue prescribing a medication within a context that they do not agree with or of stopping it.

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The medication could not then be prescribed by the responsible clinician if he is not a medical practitioner because he would not be legally empowered to do so.

Lord Hunt of Kings Heath: My Lords, I made it clear early on that, when a doctor prescribes a medication, that is clearly the result of the medical judgment of that doctor. I reiterate that. On coercion, I should have thought that any doctor who was so coerced would be acting against all the principles that the medical profession holds dear. I just do not see that happening. The point that I sought to make is that, if we are establishing responsible clinicians in this Bill, we accept that, while in some cases they may not be medical doctors, in the main they probably will be. Given that, by agreeing to the amendment proposed by the noble Earl, Lord Howe, where the approval of the medical practitioner is needed, we would undermine the role of the responsible clinician. It may be that because of their concerns in this area, noble Lords wish to do that. All that I am seeking to do is again to draw a distinction between the role of the responsible clinician and that of the medical practitioner in the decision—

Lord Soley: My Lords, will my noble friend give way, because I am becoming increasingly confused about this? It has always been my understanding, and I do not see anything in the Bill to change it, that if a person is to be treated with a drug therapy to deal with a psychosis, for example, it has to be prescribed by a doctor. It cannot be prescribed otherwise—end of argument and full stop. On the other hand, in the case of a personality disorder that does not usually require drug treatment, the patient might require treatments using other skills and abilities that also often require lengthy periods of training. In those circumstances, a person with medical qualifications is not necessarily the right individual to make the approach. Therefore, there always has to be a team approach, because ultimately both groups will be involved. However, it is and always has been absolutely clear—and would be even if this Bill had not been brought forward—that a person cannot prescribe a drug therapy unless they are medically qualified.

6.15 pm

Lord Hunt of Kings Heath: My Lords, that is a helpful intervention. My noble friend is right: nothing in the Bill requires a professional to act beyond their professional competence. A professional will not be able to make decisions about medication unless they are qualified to do so.

I shall carry on in order to refer to two other aspects of the amendment. The noble Earl, Lord Howe, referred to concerns that, in effect, clinicians will be forced to err on the side of caution and make a patient subject to a CTO on discharge from hospital simply to cover their backs. With respect, if a responsible clinician is considering supervised community treatment, they must make the decision with reference to the criteria in the Bill and the

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guidance that we will provide on the application of those criteria. We have debated before the issue of trust in professionals when exercising their judgment to do so fairly, so surely it is right to expect responsible clinicians to exercise their judgment on the application of the criteria. We need to be very careful before we accept this caricature of how a supervised community treatment order might work in practice.

I understand the points made by the noble Earl about aftercare—ACUS, as it is known—and his argument that this ought to be retained as a way in which supervised aftercare could be provided. However, the problems are twofold. First, it is clear that it has not been used because neither professionals nor patients have much confidence in it. We have evidence that it has not worked well. A study commissioned by my department in 2001 found that take-up was low, largely because it was seen as bureaucratic and lacking in the necessary powers. For instance, there are no powers to recall a patient to hospital for treatment. I also say to the noble Earl—and here I go back to our previous debate where clarity has been called for, particularly for the professionals who are going to have to operate the legislation—that to have two different systems for the management of mental disorder in the community would make it more difficult and confusing to clinicians in deciding which system is more appropriate for their patients.

I fully accept that supervised community treatment is a compulsory regime and should not be taken lightly. I believe that the stringent criteria set out in the Bill and the safeguards built into supervised community treatment, along with the judgment of professionals, albeit guided by the code of practice, will ensure that the clear advantages offered by supervised community treatment will bring very worthwhile benefits to many patients now being detained in our hospitals. I therefore urge the noble Earl to reconsider his view.

Earl Howe: My Lords, I am most grateful to all noble Lords who have taken part in this debate and to the Minister for his reply. He is of the view that we have here a set of provisions that provide an appropriate gateway into compulsory community treatment. My belief is that the gateway is too wide, and that is the reason for these amendments. Underlying that division of view between us is a philosophical divide. If I had to be brutal about the Government’s position on this issue, as indeed on other issues in the Bill, I would say that it rests on a profoundly paternalistic attitude to mental health patients. It is an attitude that accepts only grudgingly that the autonomy and decision-making ability of those with a mental illness matter at all and which would actually much prefer these people to jolly well accept what is good for them whether they like it or not.

Lord Hunt of Kings Heath: My Lords, I apologise for intervening because I know that the House wants to reach a decision, but I just want to say that that is not the Government’s view. Ours is not a paternalistic approach. The noble Earl, Lord Howe, ignores the fact that the patients to whom these provisions will apply are those who have already been detained under

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the provisions of the Mental Health Act. Supervised community treatment, far from being paternalistic, will offer a number of patients a greatly enhanced process over simply continuing to be detained in hospital.

Earl Howe: My Lords, I understand the Minister’s view on this issue. The fact is that we do not know how many patients will benefit from being on a CTO because the evidence, as I said, is simply not there, despite all that the Minister said. The evidence that we have is inconclusive, in that all the studies in this area have been unable to tell whether any beneficial effects of CTOs are due to the compulsory nature of the order or to the increased community services that are made available alongside the order. If enhanced community services support better outcomes on a voluntary basis, as we know they do, the addition of a compulsory order is likely to make no positive difference to those outcomes; indeed, it may detract from them because of the element of coercion.

It is not often that I pray in aid the noble Lord, Lord Warner, but it was he who emphasised in Committee that it is the so-called “revolving door” patients whom these provisions are designed to help. That is why the amendment proposes that only those patients who fall into the “revolving door” category are covered by the SCT provisions. The noble Baroness, Lady Murphy, told us succinctly the dangers of having a wider gateway. In response to the exchanges about the medical practitioner being involved, these amendments propose that, before a person is put on to a CTO, two professionals have to agree that that is clinically appropriate. That is all it amounts to.

On an issue of this kind, it is right for me to test the opinion of the House, and I beg leave to do so.

6.22 pm

On Question, Whether the said amendment (No. 33B) shall be agreed to?

Their Lordships divided: Contents, 173; Not-Contents, 140.

Division No. 2


Addington, L.
Alderdice, L.
Alliance, L.
Anelay of St Johns, B.
Astor, V.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Baker of Dorking, L.
Barker, B. [Teller]
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