Mental Health Bill [HL]

My Lords, I beg to move that this Bill be now read a second time. There has always been, and will continue to be, much debate about the purpose and balance of mental health law. This area is controversial, and understandably so, as it involves issues of personal liberty and intrusion into people’s lives. However, the Bill is a relatively small part of the Government’s agenda for mental health. Perhaps more important is our progress on improving the range and quality of mental health services available across the country. Nevertheless, we need to ensure that our legal powers are as clear and up to date as possible. The Bill primarily amends the Mental HealthAct 1983 to help protect patients and the public from harm and to modernise the legislation to reflect current mental health service provision. It introduces new safeguards into the Mental Capacity Act 2005 for people who lack capacity and are deprived of their liberty in their own best interests. We also need to bring our legislation fully into line with the European Convention on Human Rights. Although one in six of us suffers from a common mental health problem at any point in our lives, most of us will never need treatment under statutory powers. For instance, while over 900,000 people are seen by specialist mental health services at any one time, only about 15,000 of those are detained under the Mental Health Act. We do not need new legislation to go on improving services—we will continue to do so under general NHS legislation. Let me be clear about the improvements we have put in place on mental health services, because this provides the context within which this legislation will be implemented. We are spending £1.25 billion more on mental health services than in 1999. That is an increase of more than a quarter in real terms. Mental health, at £7.2 billion, represents the largest single element of programmed budget spend in the NHS. There are now record numbers of staff working in mental health. Since we came to office, there are 9,400 more psychiatric nurses, 1,240 more psychiatric consultants and 3,080 more clinical psychologists. We are improving access to mental health services through new outreach teams and crisis resolution teams to provide care in patients' homes, through new early intervention services for young people and by providing more secure places for people with personality disorders. During 2005-06, crisis resolution teams provided 84,000 episodes of home treatment for people who would otherwise have been admitted to hospital. By the end of March 2006, about 19,000 people were receiving care from assertive outreach teams. I recognise that a small minority of people at risk of harming themselves or others are in circumstances that justify treating them under compulsion. In those circumstances, a measure of compulsion may be the most compassionate thing to do. I accept that a high threshold needs to be reached before a clinical decision is made to detain and treat a patient under compulsion. The thresholds created by such criteria are fundamental to the balance set up by the Act. They establish when it is right that a clinician step in because the risk of harm to a patient or others outweighs a patient's individual rights. In any such legislative framework, we need to ensure that patients' rights are safeguarded and that clinicians are clear about the process that must be followed under those circumstances. It is essential that detention and treatment under compulsion is only ever for a proper clinical purpose. The current legislation provides a framework of the kind that I described, but the Bill amends that framework with a number of key changes. The legislation needs modernising, because society and mental health services have changed since the previous Mental Health Act came into force more than 20 years ago. I freely acknowledge that we had intended to replace current legislation with the previous Mental Health Bill published in September 2004. However, many stakeholders cited the positive aspects of the Mental Health Act 1983 in their evidence to the Joint Committee in the pre-legislative process. We have listened carefully to those views and to those expressed by mental health organisations, patients, clinicians and the general public. That has resulted in a shorter, more focused Bill covering essential measures. We now have a Bill that will help to ensure that people who need to be treated for the prevention of harm get the treatment that they need when they need it. Secondly, the Bill will bring the legislative framework up to date with current developmentsin mental health services, and strengthen patient safeguards. Supervised community treatment is probably the key change in the Bill and is an area of some controversy. It is important not just from a patient and public safety angle but because clinical practice itself has changed. At present, most patients treated under the Mental Health Act are detained in hospital. That reflects the fact that, in 1983, most acute mental health services were provided in hospital. However the world has moved on and we now have a wide range of community-based mental health services, some of which I mentioned earlier. We also know that some form of compulsory community treatment is established in jurisdictions in New Zealand, Australia, Canada, Israel, Sweden, Belgium, Portugal and Scotland. It is clear that there is now scope for some patients to be treated under compulsory powers but to live in the community, not in hospital. For suitable patients, supervised community treatment meets the need for a framework for their treatment and safe management in the community, instead of detention in hospital. That modern approach strikes a balance between individual autonomy and protection of the patient and the public. I hope that we will not hear arguments in this House that we should go back to the future and reserve compulsion for detention in hospital. We have made it clear that, to be eligible for supervised community treatment, patients must have had an initial period of detention and treatment in hospital. This means that their medical condition and treatment needs will be well established before they go into the community. Criteria are set out in the Bill on whether a patient is suitable for supervised community treatment. It will be for clinicians, working with approved mental health professionals, to determine against those criteria whether a patient should be put on a community treatment order. There is no question of supervised community treatment being imposed on people who have not been detained in hospital first. We know that some patients stop taking their medication or treatment once they leave hospital, and so relapse and end up being readmitted. This detrimental cycle is often referred to as the revolving door. Patients on supervised community treatment will benefit from a structure designed to promote safe community living. This will reduce the risk of relapse and re-detention. They will be asked to comply with conditions to help prevent relapse, such as living in a certain place, attending an out-patient clinic and agreeing to take medication under the direction of their responsible clinician. If, despite all this, a patient’s mental health does deteriorate again, there will be scope to take actionto prevent crisis. Under supervised community treatment, patients can be recalled to hospital, if they need to be, for treatment. This is important because the power of recall provides the means to tackle relapse, and to avoid its potentially adverse consequences for the patient or someone else. Recall to hospital allows patients to be treated quickly and to return to the community straightaway if it is clinically safe to do so. I recognise that there were some concerns about our proposals for supervised community treatment, but we have tried to deal with them. I assure the House that it is not about forcing people to have treatment in the community. If a patient refuses consent to treatment, it can be given only on recall to hospital. Forcible treatment against a patient’s will cannot be given in the community where the patient lacks the capacity to consent unless the treatment is immediately necessary—for example, to save the patient’s life. Supervised community treatment is a new, modern and effective way to manage the treatment of patients with serious mental health problems. It will allow patients, so far as possible, to live normal lives in the community. This will reduce the risk of social exclusion and stigma associated with detention in hospital for long periods of time or with repeated hospital admissions. We have published a draft code of practice that provides guidance in more detail, and we are happy to have comments on how to improve it. Supervised community treatment will be suitable for a minority of patients who have already been detained in hospital. There will be clear criteria for eligibility, safeguards for patients, and strict provisions for review and appeal, exactly as they apply to detained patients. Let me turn briefly to measures that simplify and clarify the current legislation. At present, a patient being treated under the Act often needs to be assigned to one of four separate categories of mental disorder. We wish to replace these with a simpler single definition of mental disorder under which a patient’s needs and risks, not the label that happens to be applied to a person’s mental disorder, determine when action is taken. This simpler single definition will also make the Act easier for clinicians to use and for others to understand. This will not alter the way in which the Act deals with learning disability. Similarly, alcohol and drug dependence will remain excluded from the definition of mental disorder, as they are now, but two other exclusions in the Act will be removed. The first relates to promiscuity or other immoral conduct, which is redundant. No one could now regard such behaviour as mental disorder. By contrast, the present exclusion for sexual deviancy is simply wrong. If a person has a clinically recognised mental disorder, the fact that the disorder manifests itself, for example, as voyeurism or paedophilia should not be an obstacle to using the Act where it is justified to protect the patient or other people. We will also introduce a new requirement that appropriate treatment must be available for patients subject to detention in hospital for treatment or on supervised community treatment. This will reinforce the fundamental principle that detention and supervised community treatment must always be for a clinical purpose. The test replaces the more selective ““treatability test””, whose many drawbacks include contributing to a culture in which certain groups of patients are labelled untreatable and thereby are denied services. That may have been convenient for service providers, but it was not very useful to patients and was sometimes dangerous to the public. The appropriate treatment test is designed to ensure that no one will be brought or kept under compulsion unless suitable treatment is available for them. It will not be enough for treatment to exist in theory, which in itself is a considerable patient safeguard. The treatment must be not only available and appropriate to the medical condition but appropriate to the circumstances. For instance, factors such as how far the services are from the patient’s home or whether those services are culturally appropriate will need to be considered. That is very much in line with the move across the NHS towards more tailored, individual patient-focused services. It is a change that links mental health very much to the mainstream of NHS reform and improvement. Another shift across the NHS has been the modernising of medical careers, making sure that the right person is doing the right job to the benefit of patients. In line with this, we intend to broaden the range of professionals who can take on the key roles of responsible medical officer and approved social worker. The responsible medical officer role is being replaced with the role of responsible clinician. A patient’s responsible clinician will have overall responsibility for their case and make key decisions, such as whether a patient should be discharged or go on supervised community treatment. Allowing the responsible clinician role to be taken on by a broader range of appropriately skilled and trained professionals will give hospitals the flexibility to select someone whose skills best meet the patient’s treatment needs. Where a patient mainly needs treatment from a doctor, such as medication, a doctor will be the responsible clinician. But, for example, if a patient has a personality disorder and the treatment mostly involves psychological interventions, such as cognitive behavioural therapy, a psychologist may have the skills most appropriate to the role of responsible clinician for that patient. The current approved social worker role is being replaced by the role of approved mental health professional. The functions of the role will remain largely unchanged, but the role will be opened up to a broader range of professionals, often working in the same integrated community mental health teams as approved social workers. We are committed to improving patient safeguards and will do this by taking a power to allow the time to be reduced before a patient’s case is referred to the mental health review tribunal. Of course, a patient can always apply for a tribunal hearing and this will not change their current rights, but it will improve the safety net for those who do not apply. Currently, patients who do not apply wait for six months before their case is referred to the tribunal. We want to reduce that, but we will not use this power until hospitals and tribunals have capacity to meet the reduced time limits. This responds to evidence provided to the Joint Committee. Two other important patient safeguards are being introduced. The first will give patients the ability to apply to the county court to displace the nearest relative if they believe they are unsuitable; for example, if the relationship with the patient is abusive. This is important as the nearest relative has various powers under the Mental Health Act such as being able to apply for or to block detention, to request a review of detention and to receive certain information about the patient. The court will be allowed to displace the nearest relative indefinitely, making this difficult time less arduous and complicated for all those involved. We will also make some amendments to the Mental Capacity Act 2005 in response to the 2004 judgment of the European Court of Human Rights. The court found that a man had been unlawfully deprived of his liberty in Bournewood Hospital because he had not been admitted under a legal process which included safeguards against arbitrary detention, and he was not able to benefit from speedy access to a court to consider his case. The Bournewood safeguards will protect the human rights of people who are not able to decide about their care and who, for their own protection, need to be cared for in a hospital or care home in a way that deprives them of their liberty. This could apply, for example, to some people with severe learning disabilities or dementia. These safeguards will set up a legal process of independent assessment of each case for depriving the person of liberty. Each person will have a representative who is given the right to initiate a further review of their case or to apply to the Court of Protection on their behalf. We have recognised that clinicians have confidence in the 1983 Act and are familiar with it. We have listened carefully to the wide variety of strong views expressed. We have considered all the arguments and now have a balanced and focused group of measures that improve patient safeguards, modernise terminology and produce proportionate changes in the area of supervised community treatment that will benefit patients and the wider public in the small minority of circumstances where they are appropriate. We will of course listen carefully in Committee to any improvements that can be made and, as I said earlier, we are also willing to listen to any suggestions for improving the draft code of practice. We must recognise that changes in our mental health legislation are needed. They have admittedly been a long time coming but, the longer we delay, the more our mental health legislation falls behind the advances made in services and in human rights legislation. The time for change is now. I commend the Bill to the House. Moved, That the Bill be now read a second time.—(Lord Warner.)