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I begin by saying that I should be very happy to institute discussions between now and further stages of the Bill. I give no commitment but it is important that there is an opportunity to discuss a complex area. I am happy to accept the invitation that noble Lords have given to enable that to happen.

The Family Law Reform Act provided that 16 should be the age at which the consent to treatment should be treated as though that person were an adult and the consent of a person with parental responsibility should not be required. The Mental Capacity Act, as I have already said, also provided that in general none of the measures in it would apply to persons under 16. The position of under-16s is more complex; there is likely to be far more variation. That is why our initial thinking is that guidance is able to go into much greater detail in this difficult area. That is our preference.

Where the child is Gillick-competent—that is, it is deemed that they understand what they are consenting to and the consequences of that consent—and the child consents, the draft code plainly says that he can be admitted informally on that basis. I reiterate for the noble Earl, Lord Howe, that that is very much a draft code and is work in progress. Comments made

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during the passage of this Bill will undoubtedly be fed into the code. Where a Gillick-competent child refuses, our guidance will state that it would be unwise to rely on the consent of a person with parental responsibility, and to detain a Gillick-competent child against his wishes might be in breach of Article 5 of the ECHR. The code will suggest that detention under the Mental Health Act should be considered, although again there is the possibility of an application to the court. But, for under-16s, every case will be different and depend on the specific facts of that case. That is why we think that it is right to leave under-16s to the code.

This is a developing area of law; that is why we think it better to put this guidance in the code. I accept what the noble Earl said about clarity in the law but the problem with the amendment is that it requires children to be treated as adults as a blanket rule; we think that for those under 16 every case will need to be looked at individually and had regard to a range of factors that will be explained in the guidance. For example, where the child is not Gillick-competent to make such a decision, if the decision falls within the zone of parental responsibility, a person with parental responsibility will be able to give consent and the child can be admitted informally on the basis of that consent. Guidance as to what is within what is known as the zone of parental responsibility will be given in the code. Again, this is a developing area, and we think it more helpful to give detailed advice in the code, which can be updated from time to time. It is, however, basically about the kind of decisions that our society thinks it proper for a person with parental responsibility to be able to take.

Where the child is not Gillick-competent and either it is not considered that the child could be admitted informally on the basis of the consent of a person with parental responsibility, or no person with parental responsibility is prepared to consent, consideration should be given to the use of compulsion or, occasionally, an application to the court. As I said, the Family Law Reform Act sets 16 as the benchmark for a young person to give consent to treatment as though he were an adult. We think that our approach is in line with that. I should be happy to enable further discussions to take place on this important matter but our default position is that, because of the complexity, we think that the code of practice is the best place to deal with it.

On Question, amendment agreed to.

Lord Hunt of Kings Heath moved Amendment No. 68:

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The noble Lord said: My Lords, I beg to move formally.

The Deputy Speaker (Baroness Gould of Potternewton): My Lords, I do not think that the noble Lord has spoken to this amendment.

Lord Hunt of Kings Heath: My Lords, I apologise to the House. I am not used to moving amendments at the start of a group. No wonder the noble Lord, Lord Patel, and I got mixed up last time.

It may be helpful if I speak briefly to my amendment. The noble Earl, Lord Howe, and the noble Baroness, Lady Neuberger, may then like to speak to their amendment and I shall respond to that.

Amendment No. 68 is a response to some of the concerns raised in Committee. It would enable a person detained at a place of safety under either Sections 135 or 136 of the Act to be moved from one place of safety to another. I beg to move.

Earl Howe: My Lords, I am extremely grateful to the Minister for having tabled the government amendment. It is most welcome and responds to the concerns expressed from around the Chamber in Committee that the law as it stands is inappropriately rigid. A permissive power to move a mentally disordered person from a police cell to another place of safety without necessarily waiting for 72 hours to elapse is a sensible and humane provision. However, perhaps I may bring us back to our Committee debates. I confess to a measure of disappointment that the Government have not felt able to pick up some of the other concerns that I and others raised on that occasion. The amendment in my name grouped here is designed to go somewhat further than Amendment No. 68.

Everyone agrees that a police cell is not a therapeutic environment for someone who may have reached a mental crisis point and may even be suicidal. It is simply, if you like, an expediency. I do not propose to repeat everything that I said in Committee, but putting someone in a police cell when they are in an excited or depressed state of mind is neither good for the person nor fair on the police. We have to recognise that police cells should be available as a last resort, but that is not what the Act says. It places police cells on an equal footing with other places of safety as though all had equal validity. Amendment No. 69A therefore says

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that a police cell should be used only if it is impracticable to use a therapeutic environment. It also proposes that the period of 72 hours allowed for in the Act for someone with mental health problems to be detained by the police is too long and that it should be reduced to 24 hours.

I still think that the case for making this change is extremely strong, and it is supported fully by the Police Federation and the Independent Police Complaints Commission. In fact, new research from the IPCC shows that the average amount of time that those detained under Section 136 are held in custody is 10 hours. The vast majority of detainees—95 per cent, in fact—leave police custody after 18 hours. That suggests very strongly that making an amendment to the Act to reduce the maximum period of police custody to 24 hours would not represent an unduly onerous requirement. Indeed, it is fair to say that it is only the absence of suitably trained specialist staff to carry out assessments that prevents police in some areas of the country discharging mentally disordered detainees even more quickly. With that thought in mind, the amendment would also put in the Act a duty to ensure that, where someone is detained in a cell, he must be assessed by mental health professionals or transferred to a psychiatric hospital within the shortest possible time.

I realise that the Minister is unlikely to warm to the amendment or at least to the parts of it that do not chime in with Amendment No. 68. In view of the widespread concerns expressed on these issues, both from the police and the mental health community, I ask him whether he will agree once more to take these various points away with him and give them further thought. If he cannot agree to the amendment, it would be extremely welcome if the Minister were able to give a commitment to monitor the use of police cells as places of safety and publish the figures regularly. At least that would help to establish the extent of the problem and the particular areas in which police cells are over-used. At the moment, there are no official national statistics or monitoring of the use of police stations as places of safety.

I understand that the Police Federation does not believe that that would be an unnecessary administrative burden. Most police authorities already have a computer system that allows them to log in when a patient is brought in under Section 136. However, according to the IPCC research, currently there are wide variations in the way in which that data are recorded, which makes it difficult to establish accurate numbers of people detained in police cells.

Lord Hunt of Kings Heath: My Lords, I seem to be forever destined to disappoint the noble Earl, Lord Howe, even when I bring forward government amendments in response to issues that he raised at previous stages of the Bill. Of course, I recognise that there is a great deal of concern about the use of police cells for the detention of mentally ill people. As I said in Committee, I accept that a police station is not an ideal place in which to detain such a person. I also accept that 72 hours may seem to some people to be a long time. It should be borne in mind that that is an

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upper limit. Recently published emerging evidence from a study being undertaken by the Independent Police Complaints Commission suggests that the average amount of time in police custody under Section 136 is 10 hours and that the majority of detainees leave police custody within 18 hours. That is reassuring, although from this evidence it is clear that some people need to be detained for longer than 24 hours.

I well understand why the noble Earl has returned to this matter, but there are some issues of practicality. For example, in the case of a person removed from a public place, it would require the police and local agencies to try to identify an appropriate place of safety other than a police station. If none is available, it would be necessary to convey the person to a police station and to arrange for the person to be examined and interviewed urgently at the police station. If that is not possible, it would be necessary to transfer him to another place of safety and to arrange for him to be interviewed and examined there.

It may not be possible to do all that within 24 hours. As I said in Committee, I do not think that imposing statutory restrictions is the way to address the concerns of the noble Earl. The right way forward is to try to limit the use of police stations by facilitating good practice. The Government are allocating a considerable amount of money to the NHS in England to improve the NHS estate and £130 million is being made available this year and next year. That money will help to facilitate an increase in hospital-based places of safety and improvement in existing facilities. Therefore, it will help to reduce reliance on police stations.

I also re-emphasise that we are planning to reinforce our approach to encouraging good practice by strengthening the guidance in the new code of practice for England along the lines of the noble Earl's amendment. The current code states that police stations should not generally be used. In the revised version of the code, we intend to stress that police stations should be used only as a last resort; for example, only if nowhere more suitable is immediately available and even then only if such use is compatible with local agreements on the use of places of safety. We also intend to stress in the revised code that assessment should be completed as soon as possible. Of course, we shall consult widely on that. I understand that similar arrangements will be made for the code of practice in Wales.

There is clearly more that we can do. The amendments that I have tabled also deal with an issue that was raised in Committee—a very good issue—and we now amend the Bill so that patients can be moved from one place of safety to another. Clearly, it is not appropriate for vulnerable, mentally ill people to have to remain at, say, a police station, so that a doctor and an approved mental health professional can assess and interview when a more suitable setting is available.

On monitoring and the views of the Police Federation, my right honourable friend Mrs Rosie Winterton, the Minister responsible, recently met

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with representatives of the federation. There was a good, useful and constructive discussion. We are not convinced that there is a need to require the Home Secretary to monitor and report on the use of police stations as a place of safety. However, I shall take the more general issue of monitoring back to see what can be done. As the noble Earl will know, we intend to create a new single regulator in England to replace the Mental Health Act Commission, the Healthcare Commission and the Commission for Social Care Inspection. We will want to look at monitoring responsibility. In that context, I certainly undertake to look at the issues that the noble Earl has raised.

9.30 pm

Earl Howe: My Lords, before the Minister sits down, I should say that I am by no means unappreciative of the government amendment. Nor am I unappreciative of the proposal he just kindly just made, which I welcome.

On Question, amendment agreed to.

[Amendment No. 69 had been withdrawn from the Marshalled List.]

[Amendment No. 69A not moved.]

Baroness Murphy moved Amendment No. 70:

The noble Baroness said: My Lords, the amendment is similar to the one tabled in Committee. I shall not repeat the arguments. It merely brings the statute up to date. As I remarked in Committee, I do not think anybody has been prosecuted under this legislation, but I have discovered that there was a case prosecuted under an identical clause in the 1959 Act, Pountney v Griffiths in 1975, that went to the Appeal Court. It may be used at some time, and seems to send an appropriate signal to patients and carers that this is a serious matter. I beg to move.

Lord Hunt of Kings Heath: My Lords, I welcome the amendment of the noble Baroness, Lady Murphy. As she says, although it may not have been used, the fact that the amendment raises the offences seems an important signal. The Government are glad to support it.

Baroness Murphy: My Lords, I am very grateful to the Minister indeed.

On Question, amendment agreed to.

[Amendment No. 71 not moved.]

Baroness Neuberger moved Amendment No. 71A:

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(a) circumstances under which any form of intervention to which this section applies may be used; (b) reporting requirements on the use of any such intervention; (c) review and scrutiny of the use of such interventions; and (d) circumstances under which patients subject to such interventions must be visited by persons authorised by the Commission.

The noble Baroness said: My Lords, the amendment has been introduced late in the passage of the Bill due to the report of the Joint Committee on Human Rights. Other noble Lords around the House will be quite aware of that.

The JCHR recommended:

The amendment deals with seclusion and regulates its use and other methods of managing disturbed behaviour to provide greater safeguards to patients subjected to such interventions. The Joint Committee on Human Rights identified the lack of regulation in the Act as an omission. The House of Lords held, in R (Munjaz) v Mersey Care NHS Trust and Others, concerning the introduction of a written policy governing the seclusion of patients at Ashworth Hospital that diverged considerably from the framework in the code of practice on the frequency of review, that,

Given the recommendations of the JCHR and the absence of reassurances about the status of the code of practice, we thought it appropriate to debate the regulations of seclusion even at this stage of the Bill.

Seclusion is defined in the code of practice on the Mental Health Act 1983 as,

The definition in this amendment is based on that. The code also specifies that:


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I think that the Mental Health Act Commission may have proposed a slightly different amendment to guidance on the latter point.

It may be necessary to have a fuller description in regulations or the code of practice to ensure that all practices that amount to seclusion are indeed covered. In its latest biennial report, the Mental Health Act Commission sets out various terms used to describe a range of practices that still amount to seclusion. These include therapeutic isolation, single-person wards, enforced segregation, and restriction of movement. The quality of care provided under these circumstances can vary widely, from the very good to the dangerously substandard. The Department of Health has also referred to different kinds of nursing and accommodation that is separate from other patients as “alternatives to seclusion”. Again, that may undermine regulation of these practices. This amendment deliberately uses the language of managing behaviour to differentiate these interventions from clinical or therapeutic interventions; I cannot state too clearly or strongly that they are not.

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