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There is some considerable prevalence of seclusion being used in the mental health system. The Mental Health Act Commission’s own census found that 3 per cent of all psychiatric in-patients resident on 31 March 2005 had experienced one or more episodes of seclusion in their period of admission or in the previous three months, 112 patients had experienced at least five periods, and 42 at least 10. The maximum number was over 100, and there were particularly high rates for black patients. Here is an issue that ought, yet again, to ring alarm bells with all of us; it seems to be overused for black people and those from minority-ethnic communities. It appears that this could be an area where the use of seclusion—if it is to happen at all—is overly strong with some communities rather than others.

Over six months in 2004-05, the Mental Health Act Commission collected data on episodes of patients being held in isolation for 48 hours or more. It was notified of 74 episodes in the acute sector and 156 in the medium or high secure sector. Many were for much longer periods, and many were not described as seclusion. The Healthcare Commission’s recent audit of psychiatric units found about one-third saying that they used seclusion at some point or other.

Numerous aspects of seclusion may lead to patients’ rights being infringed. The grounds for using seclusion could be punishment rather than treatment. There could be conditions in which people were accommodated without a toilet or any washing facilities—people can be cared for really badly during seclusion—or issues about how seclusion is brought to an end. For instance, there are examples of staff requiring the patient to “show remorse”, or all sorts of issues in how complaints about using seclusion are dealt with. All these areas could be addressed by the review and by the visiting requirements envisaged in regulations.

This amendment simply proposes that the Act sets the scope for regulations with which the use of seclusion, and any other interventions added to the clause, must

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comply. Those would define: the circumstances in which the measures could be used; reporting requirements; review and scrutiny; visiting issues; and, if there are people who are subject to prolonged or repeated seclusion, making sure that they are visited by an independent person who can protect their rights. These regulations would set limits on the use of seclusion and provide procedural safeguards to check whether people in this extremely powerless set of circumstances were being treated in accordance with the code of practice. As this is such an important and difficult area, we believe that there has to be consultation on any regulations before they are laid.

Finally, in addition to the recent Joint Committee on Human Rights report, the Joint Committee on the draft Mental Health Bill recommended that the Bill regulate the use of seclusion and mechanical restraint by requiring the same kind of safeguards provided in the current code of practice to ensure that decisions to seclude or restrain are made only when absolutely necessary, are subject to regular monitoring and review, and that the seclusion or restraint is brought to end immediately the intervention is no longer needed for the protection of others. There should be a requirement to report such interventions to the Mental Health Act Commission and, if seclusion or restraint is prolonged, a member of the expert panel should visit the patients. The Government agreed with the Joint Committee on the draft Mental Health Bill about this when that draft Bill was still current and they agreed that similar safeguards should continue in this Bill. They also shared the concerns about prolonged seclusion and restraint and were exploring how best to safeguard patients’ interests in the context of the new legislation. According to the Mental Health Act Commission, the Government were considering using the mechanisms then being proposed in the Mental Health Bill that were concerned with medical treatment.

We were all delighted that the Government were interested in regulating seclusion, but we are concerned that, given the legislation now before us, it no longer appears to be on the Government’s agenda and similar mechanisms to those governing treatments are being considered. Seclusion is a means of containing violent behaviour, but it is not a treatment. Confusing the two functions could have the effect of legitimising seclusion for other purposes and weakening any safeguards by giving scope for clinical discretion. We believe that this is a golden opportunity for the Government to fulfil their earlier intention to commit to a form of regulation and to work out, in consultation, the best way of doing it. I beg to move.

Lord Patel of Bradford: My Lords, I am grateful to the noble Baronesses, Lady Neuberger and Lady Barker, for raising this issue following the Joint Committee’s recommendation. I agree with the general thrust of this amendment, and I hope that serious consideration will be given to it. I certainly believe that there should be regulation of the use of seclusion.

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As the noble Baroness said, the Mental Health Act Commission, of which I am the chairman, called for this in several of its reports, including the most recent, the 11th biennial report. That was published before the abandonment of the draft Bill of 2004, in which the Government, rather to the horror of the Mental Health Act Commission, proposed regulation of a sort using the mechanisms of Part 4 of the Act. The Minister may have read the discussion of seclusion in chapter 4 of the commission’s report, but if not, I hope that he will do so, paying particular attention to the section entitled “The Perils of Medicalisation”.

I am pleased that this amendment refers to the management of disturbed behaviour rather than to its treatment. Let us not fall into the trap of assuming that these are simply matters for clinical discretion, but recognise that they engage rather wider issues of keeping order within hospitals. I note that this amendment prescribes the circumstances in which seclusion or other types of serious restraint may be used. I sense that the response from the Minister may be that it could be dangerous to fetter services in such ways, but I hope that such arguments will not close off deeper consideration of how such regulations might be formed.

While we must not establish quasi-clinical criteria for the act of isolating a patient from others, it does not seem impossible to me that we could have regulations that set out what seclusion can and cannot be for, rather in the way that Section 62 sets out when certain treatments can and cannot be given. Just as importantly, we need a statutory definition of seclusion that will prevent services claiming never to seclude a patient when all they really do is operate seclusion under some euphemistic term. If we can prevent hospitals euphemising seclusion away, we should certainly require them to keep records of the practice that would be available to monitoring bodies and their own internal auditing procedures. This amendment provides regulatory powers to enable all these things.

The Minister’s brief on this amendment no doubt suggests that he should repeat the mantra that these matters are appropriate for a code of practice, not statute. I hope that he will pause before doing so and reflect upon the point raised by the noble Baroness, Lady Neuberger, about the way in which the code’s guidance on seclusion was at the centre of the judicial ruling in Munjaz. That ruling effectively tells services that they can write their own codes of practice on seclusion so long as they do nothing in breach of the European convention. It is a shame that the Department of Health, although nominally the co-sponsor of the code, argued in submissions to the court that services should be free to disregard it.

We have not yet finished debating the status of the code and I will not pre-empt that discussion, but I ask the Minister to remember that services already have guidance on seclusion in a code of practice that many of them do not follow, and which some of them openly disregard. Just as the dissenting judgment of the noble and learned Lord, Lord Steyn, in Munjaz warned of a free-for-all, the use of the code in this area has led to something of a Wild West in practice.

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The Mental Health Act Commission cannot even collect meaningful seclusion data across the high-security sector because hospitals—or rather one in particular, Ashworth Hospital—operate incompatible, or at least incomparable, systems of seclusion. Patients transferred from one hospital to another, not just in the high-security sector, may now find arbitrary differences in how hospital regimes operate seclusion, despite the European convention requirement for transparency and predictability in matters that potentially engage the rights that it establishes.

I suggest to the Minister that this is not good enough, and that more stringent regulation is needed.

9.45 pm

Lord Hunt of Kings Heath: My Lords, I am grateful to noble Lords. I certainly do not want to close down the options for discussion and I am sorry if my applause for the code is seen as a mantra. It is important. We have debated—no doubt, later this evening we shall further debate—the code of practice, but the two go very much together. There are very good reasons why some matters are left to the code and are not in legislation or regulations.

Essentially, we think it unnecessary and undesirably inflexible to regulate seclusion, restraint and other similar interventions in the way proposed by the amendment. It is true that the amendment leaves the details to regulations, which is certainly preferable to trying to codify rules in primary legislation, but we still foresee difficulties finding sufficiently clear definitions for regulations. Such definitions should not, on the one hand, encroach on what may be thought of as routine clinical interventions, rather than crisis responses. On the other hand, I very much agree that we should not encourage people to use less appropriate techniques to avoid the bureaucracy of the regulations—the risk of the perverse incentive—or because what they believe to be the best in the circumstances is not permitted.

There is genuine concern that we may unwittingly restrict staff to a limited range of techniques that do not sufficiently recognise the huge variety of scenarios that they may face. Any kind of restrictive regulation invariably runs the risk of inhibiting new innovative techniques for managing difficult behaviour.

We accept that there is variation in the use of seclusion and restraint, not all of which represents genuine differences in need. I have no doubt that there are places where practice can be improved. However, we must be wary of defining what hospital staff may or may not do either as part of routine clinical care or as an immediate response to dangerous situations. It is worth remarking on the issue of violence towards NHS staff. A programme is being broadcast at this very moment about it. We need to recognise the situations in which staff find themselves. We have to pay regard to their interests in these matters.

Currently we address such issues through guidance to practitioners in the code of practice. The code currently states that hospital managers should have clear written policies on the use of physical and other forms of restraint. Physical restraint should take place only as a last resort, not routinely. Any restraint

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should also be reasonable in the circumstances, apply the minimum force necessary to prevent harm to the patient or others, be for only as long as necessary and be sensitive to gender and race issues.

In preparing the draft illustrative code of practice, I have remained very aware of the deliberations in the Joint Committee on Human Rights and our evidence to it, which concluded that the most appropriate approach to this practice issue is to provide for it through guidance in the code of practice. That remains our position. In preparing the draft illustrative code of practice to accompany the Bill, we revisited and updated the guidance on seclusion and restraint. It will be further developed in the new code to be issued for consultation. I understand that the Assembly Government intend to make a similar provision in the code of practice for Wales. The draft illustrative code of practice reflects the NIMHE 2004 guidance, the Mental Health Policy Implementation Guide. It also advises that the NICE guidelines are also adhered to. The NICE guidelines address the management of aggression and violence, including restraint.

The use of seclusion and restraint is often a clinical judgment. Its use should be informed by detailed professional guidance of the sort to which I have just referred. The code of practice provides that such guidance is brought to the attention of practitioners and service providers. We need to be clear about the observation of the Appellate Committee of this House that the requirement that cogent reasons be shown for any departure from the code sets a high standard that is not easily satisfied. We must be clear about that, although I realise that we will probably discuss this a little later on.

Section 120 of the Act already enables the Mental Health Act Commission at any reasonable time to visit and interview any detained patient and to inspect any records relating to the detention or treatment of that patient. I know that there are concerns that young men from some black and minority-ethnic groups are over-represented in the use of seclusion and restraint. I understand those concerns: we all have general concerns about how a group of people is treated in the current services. I understand that the 2006 census will show less emphasis in relation to that figure. I must be careful not to speculate, but one can only hope that some of the current publicity and the advice and guidance are beginning to have an impact on service provision and practice activities in the services.

We will keep the operation of the Act under review, and we will look for comprehensive information on how it is used, which will help us to monitor better what is happening. Again, as I said about places of safety, when the new combined regulator for health and social care is formed, we will consider how information on the use of seclusion may be reported to the new regulator. I do not seek to undermine anything that the noble Baroness and the noble Lord have said about this. We simply think that it is better to deal with this in the code.

Baroness Neuberger: My Lords, I am extremely grateful to the Minister for his reply, although I am not wholly content with it. He is obviously not entirely

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surprised to hear that, either. Let me say just a few things. First, given the very clear recommendation from the Joint Committee on Human Rights, when it said:

it is extraordinary for the Government to say yet again that they think that this is better dealt with in the code of practice. I find that really quite worrying, because to some extent they are simply not listening. However, we have heard about the code of practice and will come to that later.

Secondly, I fully accept that the guidance on seclusion is the NICE and the NIMHE guidance. I do not think that anyone has any particular quarrel with that, except that what the Minister said to me about wanting to leave it to clinical judgment has come up time and time again. This is not an area that one would normally expect to leave to clinical judgment, because it has nothing to do with treatment: it is being used simply to protect others from significant harm. That is very different from the normal use of clinical judgment in a treatment decision. This is an important point, which the Minister did not pick up. All noble Lords around the House are very concerned about attacks on NHS staff, but it is precisely because seclusion is used to protect others from significant harm that you want to be very clear about where it should be used—to protect staff and others from harm.

Given the lateness of the hour, and having voiced some of my objections to some of what the Minister has said, I beg leave to withdraw the amendment. I shall take this away and consider how we might come back, even at the very latest stage of the Bill—at Third Reading.

Amendment, by leave, withdrawn.

[Amendment No. 72 not moved.]

Baroness Meacher moved Amendment No. 72A:

(a) the NHS trusts contracted to provide in-patient mental health services and ambulance services within its area; (b) the police authority or authorities within its area; and (c) the local social services authority or authorities within its area, (a) the arrangements for the assessment of urgent cases and for ensuring the safety of the patient, carers, those carrying out the assessment and any other persons present during the assessment;

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(b) the arrangements for obtaining a bed, if required, and the criteria for determining the relative priority of urgent cases awaiting admission; (c) the arrangements for ensuring safe custody and conveyance of patients who need to be admitted to hospital under section 6(1) of this Act; and (d) agreed time-limits for response by the bodies listed in subsection (1)(a) to (c) above in cases of urgency where there is a serious risk to the safety of the patient or others.””

The noble Baroness said: My Lords, I shall also speak to Amendment No. 72B. These amendments are strongly supported by the British Association of Social Workers. The first amendment seeks to ensure that the responsible organisations, the primary care trusts and others prepare and maintain a scheme to deal quickly and efficiently with patients detained under the Mental Health Act who therefore urgently need an in-patient hospital bed. The amendments set out the arrangements for ensuring the safety of the patient, carers and professionals present during the assessment, arrangements for obtaining a hospital bed and arrangements for ensuring the safe custody and conveyance of the patient.

Why is this amendment important? At present, the only individual with a statutory responsibility for a person’s safety and welfare, once that person has been formally assessed as liable to be detained, is the approved social worker in person. That personal responsibility continues until the patient is admitted on to a hospital ward. Frequently, it is unsafe to transport a newly detained patient without the police and an ambulance, but last year a survey by the Association of Directors of Social Services into the ASW service found that nearly 60 per cent of local areas reported problems with accessing police and ambulance support. This level of problems occurs despite the fact that for a number of years the code of practice has made it a requirement on local social services authorities to have policies with police and ambulance services covering access to support. I understand that the British Association of Social Workers is in discussion with the department about whether the problems can be dealt with by the code of practice rather than through these amendments. The experience to date, I have to say, is not encouraging.

Amendment No. 72A seeks to place the ultimate responsibility for conveying the patient to hospital upon the health trust responsible for providing the treatment to a detainee. The approved social worker or approved mental health practitioner under the new Bill would continue to undertake the duties of assessment, application for detention and conveyance to hospital, but would be conveying on the trust’s behalf. The important thing here is that in extremis the AMHP should be able to call upon the trust’s director on duty to make sure that a bed is available for a detained person. Certainly I am conscious of that in my trust. I know that if an ASW phoned our director on duty, something would happen quickly.

I could give lots of examples of the problems faced by individual social workers, but I shall cite just one. Due to the threats of an individual to his family members and their very real fears for their own safety, and the fact that his mental state was causing

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concern, a consultant asked for an urgent ASW assessment. This service user happened to be a martial arts expert, which was a little unfortunate. The police refused to help. The ASW was therefore sent into the house armed with nothing more than a mobile phone with 999 programmed into it. Things got out of hand and she had to call the police urgently. Thankfully, all the response cars in the county turned up, so the person was safe. However, had the police responded at the start, perhaps a couple of officers might have contained the situation.

The availability of ambulances in these crises also varies considerably across the country, and again if no ambulance comes, perhaps the police will not arrive either. They will come only if an ambulance also comes to the scene. Who is left holding the problem? It is the individual ASW. Alternatively, the ASW may be relatively fortunate. The police officers and an ambulance agree to help to convey the patient to hospital, but even then—and I am very conscious of this particular situation, having been rather close to it—it is quite possible for the ASW to arrive only to be told that the bed has been filled by another emergency admission. The police officers say, “Sorry, we can’t hang about. We have to go to another incident”. The ambulance driver says, “We can only stay for another 10 minutes”. What is the ASW, and in the new world, the AMHP, supposed to do in that situation? As the Bill stands, they will carry personal legal responsibility. That situation simply should not happen, and I am sure that Ministers would agree. But the risk is very real on a daily basis.

10 pm

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