Mental Health Bill [HL]

My Lords, the journey towards a new Mental Health Act over the past eight years or so has been a long one. I cannot help feeling that, although there have been some interesting steps along the way, the journey has taken us back where we started, with a rather disappointing Bill. It fails to take into account the concerns of most people who work in mental health services and of most people who use mental health services. I had the privilege of serving with MPs and Peers of all parties on the Joint Committee on the draft Mental Health Bill under the chairmanship of the noble Lord, Lord Carlile. We heard evidence from a wide variety of experts before making a long series of recommendations which we believed would have substantially improved the legislation and created a legal framework for compulsory mental health treatment which would have enjoyed the support of most of those who required it. Reading the new streamlined Bill, it feels that the only point we made that the Government have accepted is that the 2004 draft Bill was too long and too difficult to follow. Indeed it was—but that does not mean that a shorter Bill is necessarily better, especially as the shorter Bill retains most of the provisions we were most concerned about and omits some of the better ones such as those relating to advocacy and improved patient representation. It may be that our report was too long and too difficult for the Government to understand too. My role on the Joint Committee was to keep plugging away on the question of learning disability. I welcome the fact that the Bill’s single definition of mental disorder now excludes learning disability in most cases. But it retains the caveat that people whose only mental disorder is a learning disability may be subjected to compulsion where that disability, "““is associated with abnormally aggressive or seriously irresponsible conduct””." These words are very familiar to me because they arrived in the 1983 Act after a long three-way process of negotiation on the telephone between the then Minister, the noble Lord, Lord Elton, myself, then in my capacity as secretary general of Mencap, anda copy of Roget’s Thesaurus. It was the best compromise we could then reach between the Government’s position that people with a learning disability should come under the scope of the Act, and my position that people with a learning disability are not ill and should not be treated as if they are. It appears that the Department of Health’s position,23 years and a change of Government later, has not changed—but neither has mine. Learning disability was not then, and is not now, a mental illness. In many cases, of course, where a person with a learning disability is aggressive or irresponsible, that can be a sign that he or she has a mental illness that would benefit from medical treatment—in which case they can be treated under compulsion if necessary anyway—but that is not always the case. It may, for example, be a sign that he or she is in pain or is otherwise distressed but has difficulty communicating this or explaining it to others, and is frustrated. Responding to a person’s pain or distress with detention and forced medication is unlikely to improve things. I would much prefer to see a complete exclusion from the scope of the Bill of people whose only mental disorder is a learning disability. After all, if people with a learning disability lack capacity, and if treatment is in their best interests, they can in any case be treated under the Mental Capacity Act. That is an Act in which I also have an interest as I was part of the Joint Committee scrutinising it, when it was the Mental Incapacity Bill, under the chairmanship of the noble Lord, Lord Carter. A recommendation both committees made regarding the Bills we were scrutinising was that principles should be on the face of those Bills, rather than being relegated to a code of practice. Such principles make legislation much easier for practitioners to understand, and form an important safeguard. However, while principles are now on the face of the Mental Capacity Act, the Government have so far refused to accept that they should be part of the Mental Health Bill. I hope that they will be able to change their mind on that, or, if not, that they can explain why such principles as best interests, non-discrimination, least restrictive alternative and child welfare are not compatible with the legislation as proposed. The Mental Capacity Act is crucial to the Bill, as much of the Bill is concerned with amending that Act in respect of Bournewood patients; that is, patients who lack capacity and are deprived of their liberty. If, in redrafting the Mental Health Bill, the Government were motivated by the desire to avoid inordinate length and complexity, that concern appears to have disappeared in relation to Bournewood patients. The relevant sections of the Bill—Clauses 38 and 39, and Schedules 6, 7 and 8—amount to more than 50 pages. The Bournewood provisions have received far less publicity than the other sections, but they were mentioned by the Minister, Rosie Winterton, on the ““Today”” programme on the day the Bill was published. She rightly noted that perhaps thousands of people who lack capacity may be being deprived of liberty, and that they currently do not have the same access to a mental health tribunal. Listeners might have been forgiven for assuming that the Government wanted to give them the same access to such a tribunal, but that is not the case. No, they have access instead to the Court of Protection, which lacks the expertise of the tribunal in making judgments about care plans and detention. In fact, the Government’s proposals for Bournewood patients leave them lacking several of the safeguards enjoyed—if ““enjoyed”” is the word—by Mental Health Act patients. They may be deprived of liberty in an emergency for up to seven days, as against 72 hours for Mental Health Act patients. They may have the detention authorised for up to12 months, as against six months for Mental Health Act patients. They have no statutory second medical opinion procedure for medication beyond three months or for electro-convulsive therapy. They have no entitlement to free aftercare for care and treatment consequent on the care and treatment they received on detention. While the safeguards for Mental Health Act patients and Bournewood patients need not be identical, those for Bournewood patients should not be second rate. I hope that the Government will think again about the unequal two-tier system they are proposing to set up and give better safeguards to patients who are, by virtue of their lack of mental capacity, perhaps the most vulnerable in the whole health and social care system. The vulnerability of people with learning disabilities in residential care was shockingly highlighted earlier this year by the report of the Healthcare Commission and the Commission for Social Care Inspection on the abuse of patients in learning disability services in the Cornwall Partnership NHS Trust. The report was prompted not by the managers of those services, many of whom were culpably unaware of the abuse that was taking place, but by patients’ families and by the hard work of East Cornwall Mencap Society. Families and friends are often the first people to become aware of abuse or poor practice within hospitals and care homes, and yet the Bill proposes that the only person with any right to call for an assessment and authorisation of possible deprivation of liberty in a hospital or care home is the manager of the hospital or care home in question. I hope that the Government will consider amending the Bill to ensure that third parties will have the right to request an authorisation of the deprivation of liberty to make sure that the responsibility for identifying deprivation of liberty is not exclusively placed upon the very people responsible for depriving them of liberty in the first place. Given the importance of ensuring that hospital and care home managers follow best practice in relation to the care of vulnerable people, I am very concerned that the focus on authorising deprivation of liberty may obscure the fact that, in almost all cases, deprivation of liberty is unnecessary and should not be authorised. The Bournewood provisions should be about preventing deprivation of liberty, not rubber-stamping it. Depriving a person of liberty rarely, if ever, reflects best practice. Whatever else one might want to say about the detention in Bournewood Hospital of the autistic man known as HL, which led to the Bournewood judgment, it certainly did not represent the least restrictive possible care regime. It would be helpful if the Governments could give more examples of when a person who lacks capacity in a hospital or care home should be kept in circumstances which amount to a deprivation of liberty under Article 5 of the European Convention of Human Rights. I am not sure that this is very often, if ever, best practice and I am not sure that we should be writing new laws to allow it to happen. I regret that this still seems a deeply flawed Bill. Those of us who have played a part in this eight-year process know that this is not for want of effort, evidence and argument. It is still not too late to undo most of those flaws. I know that noble Lords from all sides of the House and individuals and organisations involved in every aspect of the care and treatment of people with mental health problems will be working hard together to make improvements across the board. I urge the Government to listen to them.