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Nothing in my proposed arrangements contradicts my objections to SOADs anticipating patients recalling their authorisations. Certification, as a part of the discharge package, would of course take place where a patient’s situation and mental or physical state were quite apparent to the certifying doctor.
My amendment would reduce the complexity of the Bill; it uses the existing framework of Section 58 as its basis. We have heard from the Minister many times during our debates about the limitations of an amending Bill, and that we are not writing new mental health legislation from scratch. In that spirit, I offer this amendment on the basis that it makes only the most necessary changes to the current statute to set out the effects of community treatment orders under Part 4 of the 1983 Act.
My amendments, in contrast to the Bill’s provisions, would result in simpler and more practical arrangements for authorising treatment in these circumstances. Moreover, they would preserve the role of the SOAD, they would be safer for patients and more acceptable in ethical terms for the professionals who operate the Act. I hope the Minister will give them full consideration.
Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Lord for allowing us to debate what is undoubtedly an important matter. However, the Government disagree with him.
I shall explain. When a patient on supervised community treatment is recalled, it will be because he needs treatment in hospital to avert a risk to himself or others. He may have failed to comply with the medication authorised in the certificate, and it is simply the lack of compliance that engenders a risk. In that case, the treatment he needs would be the same as he has been receiving in the community. Alternatively, the patient’s condition may have deteriorated to the point where some additional different treatment is needed to restore his stability. I am advised that it is possible to foresee the possibility that such deterioration might occur, and to determine what medication would be needed to deal with it. SOADs make that kind of assessment quite regularly when they authorise treatment to be given as required. That is simply the kind of
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It is interesting to note that, under the Mental Health Care and Treatment (Scotland) Act, which we have discussed on a number of occasions, it is possible to authorise treatment given on recall, just as we propose. I understand that this has caused no particular problems.
8.45 pm
I should emphasise that a SOAD certificate provides an authority to administer medication. It is not a direction to do so. It remains for the treating clinician to decide whether it is right and proper to administer the treatment at any given time.
The amendment which seeks to replace the Part 4A certificate is potentially detrimental to getting patients the treatment they need quickly on recall to hospital. If a patient is recalled to hospital and they do not consent to that treatment or do not have the capacity to object in some way, they cannot be treated with medication unless it is an emergency. Under this amendment, a responsible clinician would have to wait until a SOAD could be organised before he could treat the patient. This might cause an unnecessary delay of days. It could be a common scenario and could result in a worse deal for patients. Delays in treatment are not in the best interests of patients and may mean that a patient has to spend longer in hospital because they cannot be treated quickly and return home.
We think the Bill achieves a pragmatic approach; it allows a patient to be treated quickly while benefiting from the safeguard of a second doctor review of that treatment. Recall to hospital is an event that everyone concerned will clearly hope to avoid, but it is available if needed, and it makes sense to plan for it. Planning in advance of the eventuality and setting out transparently what treatment could be given on recall is surely helpful to the patient and their family, with an opportunity for them to contribute to the decision.
We have had a discussion about the length of time before which a SOAD must certify the medication of a patient under the Mental Health Act. As we have had that debate, I will not return to it in this context.
Baroness Barker: My Lords, before the Minister sits down, perhaps he will help me. Am I right in believing that the doctors who will be judging the effects of non-compliance with regard to medication are the same doctors whom the Government believe cannot predict the therapeutic benefit of a treatment for a patient? That is a problem for me. There is a hole in the Government’s logic and expectations.
Lord Hunt of Kings Heath: My Lords, if there is a hole in the Government’s logic, I guess there is one in the noble Baroness’s logic, too. She is trying to argue it both ways. It is a different scale of order in relation to treatability more generally and to medication. This is a safeguard for patients.
On Question, amendment agreed to.
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Lord Hunt of Kings Heath moved Amendment No. 56:
Clause 28 , page 21, line 17, leave out “or section 62A below,” and insert “, or by virtue of section 62A below in accordance with a Part 4A certificate (within the meaning of that section),”
On Question, amendment agreed to.
The Lord Speaker (Baroness Hayman): My Lords, Amendment No. 56A has been discussed in the group with Amendment No. 55. It is up to the noble Lord, Lord Patel of Bradford, whether he chooses not to move it; but, as it is now in its correct place on the Order Paper, he is free to move it now if he wishes to debate it further.
Lord Patel of Bradford had given notice of his intention to move Amendment No. 56A:
(1) In section 58(3) of the 1983 Act, after “patient” insert “who is liable to be detained under this Act”.
“(3A) Subject to section 62A below, a community patient who has not been recalled to hospital shall not be given any form of treatment to which this section applies unless—
(3B) Where a patient who has been liable to detention under this Act has been administered medication for a mental disorder to which this section applies for less than three months prior to becoming a community patient, the period mentioned in section 58(1)(b) above shall be read to extend for no longer than one month beginning with the day on which the community treatment order is made.
(3C) The Secretary of State may by order vary the length of the period mentioned in subsection (3B) above.
(3D) Certification under subsection (3A) above may take place whilst a patient remains liable to be detained, but will not come into force until the responsible clinician discharges the patient from detention in hospital under the terms of section 17A(1) above.”
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“(4A) Before giving a certificate under section 58(3A)(b) above, the registered medical practitioner shall consult two other persons, who have been professionally concerned with the patient’s treatment, but of those persons—
(5) In section 64 of the 1983 Act (supplementary provisions for Part IV), after subsection (2) insert—
“(3) In this Part of this Act, references to “not capable of understanding the nature, purpose and likely effects of treatment” are to be read in accordance with the test established at section 3 of the Mental Capacity Act 2005.
(4) References to a donee are to a donee of a lasting power of attorney (within the meaning of section 9 of the Mental Capacity Act 2005) created by the patient, where the donee is acting within the scope of his authority and in accordance with that Act.
(5) References to a deputy are to a deputy appointed for the patient by the Court of Protection under section 16 of the Mental Capacity Act 2005, where the deputy is acting within the scope of his authority and in accordance with that Act.
(6) Reference to the responsible clinician shall be construed as a reference to the responsible clinician within the meaning of Part 2 of this Act.
(7) In section 28 (Mental Health Act matters) of the Mental Capacity Act 2005 (c. 9), after subsection (1) insert—
“(1A) Section 5 does not apply to an act to which section 58(3A) of the Mental Health Act applies.””
The noble Lord said: My Lords, I do not wish to debate this amendment further, except to make some closing remarks. I am obviously disappointed by the Minister’s reply. It is doubtful whether any thoughtful clinician, especially when undertaking the role of a SOAD, would take advantage of the scope of powers presented to him or her under the Government’s proposals. I urge the Minister to set aside the question of whether professionals should be able prospectively to authorise treatment on a patient recalled to hospital and consider the relative merits of the proposed models in terms of patient protection and practicability of administration.
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I hope that the Minister will think again and be willing to discuss this further with me and other noble Lords, perhaps bringing forward some appropriate amendments at Third Reading. I hope that this matter is raised again during the Bill’s proceedings here or in another place.
[Amendment No. 56A not moved.]
Lord Williamson of Horton moved Amendment No. 57:
“PART 1A Assessment of needs for health and social care services (a) it appears to a local authority or a health authority that any person with a mental disorder for whom they may provide or arrange for the provision of community care services may be in need of any such services; or (b) it appears to a health authority that any person with a mental disorder may be in need of services which are commissioned by the health authority in respect of mentally disordered persons,the authority and the health authority shall carry out a joint assessment of his needs for those services; and having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services.
(2) Where a local authority or health authority receive a request for an assessment under subsection (1) above in writing by—
(3) The requirement referred to in subsection (2) above is to give notice, before the expiry of the period of 14 days beginning with the day on which the request is received, to the person who made the request or whether the health authority and local authority intends to undertake the assessment; and if the intention is not to undertake the assessment, of the reason why that is the case.””
The noble Lord said: My Lords, this amendment, which relates to the assessment of need for health and social care services, derives from the mental health organisation, Rethink, of which I have been for a long time a supporter. Without prejudice to the question of whether this should be in the Bill, which is a key point, it is rather bizarre not to have an assessment of the need for services of a person with a mental disorder. Without it, how can the right decision on services be made? The logic of this amendment seems quite irrefutable.
I want to make three points only. First, this amendment covers local authorities and health authorities, which is an innovation; I do not think that it is in current legislation. The health authority should in our view also be covered. Secondly, this assessment could be a request from a number of people: the person himself; the carer—that is a very important point in public opinion—the nearest relative; or a mental health professional. Thirdly, this
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I leave it to the Minister to say whether it should be in the Bill, but I hope that he will indicate that it seems reasonable as far as possible for local authorities and health authorities to make an assessment, which it should be open to a number of people to suggest. There should also be a clause to say that an assessment does not necessarily have to be made in every case. I beg to move.
Baroness Meacher: My Lords, needless to say, I will speak extremely briefly. This amendment seeks to deal with the prejudice against those with mental health problems which is reflected throughout the NHS. If we look at NHS budgets, I believe it is true to say that some 30 per cent of patients suffer with mental health problems, but only 13 per cent of the NHS budget is devoted to people with those problems. It is argued that physical treatments cost a great deal more than mental health treatments, but that situation is very far from straightforward. A complex care bed in a psychiatric hospital, particularly in the private sector, can cost £250,000 a year. Of course, some people remain for that time or a good deal longer. A bed in an intensive care ward can cost £90,000 a year. How many physically ill patients have treatment regimes that cost anything like that amount?
The principal argument behind this amendment has been that a quarter of people seeking assessment and help with their mental health problems are turned away. The likelihood is that a good proportion of those people will finish up needing these very expensive in-patient psychiatric admissions. The reality is that within the mental health budget, funding is heavily focused on those services directly affected by the Mental Health Act—for example, special hospitals, medium secure units and intensive care units where detained patients tend to be looked after.
If someone really wants mental health services, believe me, they need to have a thorough-going psychiatric breakdown and get themselves detained under the Act. If you do not do that, you have not got much chance of anything like adequate care and treatment. I really do not believe that the Government want to be responsible for a service with that extreme imbalance in the allocation of resources. This amendment would over time encourage more resources to be focused on prevention. This would support the Government’s welfare reform strategy, of which the Minister is much more aware than probably any of the rest of us. Early assessment and evidence-based therapy would prevent people losing their jobs and help others back to work. This amendment would thus also help to fulfil the Government’s social inclusion agenda—all sorts of government agendas are being talked about in this very short debate.
I am sure that none of us supporting this amendment wants a section in the Act which would leave the Government open to endless litigation. This
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I hope that the Minister will give us some assurance that a way forward can be found to ensure that people suffering crippling mental health symptoms can be assured of an assessment, exactly as any patient with comparable physical symptoms could take for granted.
Lord Hunt of Kings Heath: My Lords, this has been a short but important debate. The argument between us, if it is such, is that we believe that there are sufficient existing duties providing for the assessment of patients and the provision of services in legislative provision at the moment, which makes the amendment unnecessary. However, I fully accept that noble Lords have raised issues in relation to the provision of adequate assessment, which deserves every consideration.
The Government readily acknowledge that the issues that they have raised are real and that there are people who experience issues in accessing assessment and services. Noble Lords gave examples of problems in Committee and at this stage. Because we believe that existing statutory duties cover the point, the issue is how to ensure that statutory services ensure that the kind of problems that they have raised do not occur in practice. We have to build on the progress that we have made in recent years. The national service framework has laid the foundation for the kind of service that we want in mental health care. We have seen many more resources put in, with more people employed, and services such as assertive outreach, which we have discussed in the context of supervised community treatment. One hundred and nine early intervention teams have been formed, as well as 343 crisis intervention teams and 262 outreach teams.
I am not at all complacent. I realise that there is more to do and that, if the noble Baroness is right and there is no level playing field in practice between physical and mental services, we need to ensure that in statute there is a level playing field. The issue is how to ensure that there is one with regard to services on the ground. I am afraid—because I know that noble Lords may find this answer tedious—that we will not achieve that through legislation. We have to achieve it through determination to continue improvements to ensure that people do not slip through the net and that when assessment and services are needed they are provided. But there is no moving away from the hard graft that needs to be done on the ground to ensure that that happens.
Lord Williamson of Horton: My Lords, I thank the Minister for his reply. The issue is important and I am strengthened by the convincing arguments presented by my noble friend Lady Meacher, which I thought were very much to the point. I am grateful for the Minister’s acknowledgement of the importance of the
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Amendment, by leave, withdrawn.
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