Mental Health Bill [HL]

My Lords, I am pleased that the Government have introduced the Bill to amend the Mental Health Act 1983 and the Mental CapacityAct 2005, although if the briefings that I have received are anything to go by, there is widespread concern about the Bill’s detail, indicating that it will have to be amended if it is to be supported. The general feeling seems to be that the Government have ignored many of the recommendations of their own expert committee appointed in 1998 and of the 2004 joint parliamentary scrutiny committee. While I support many of the proposals, I too am concerned about some clauses. I start by making some general comments. While I am not a clinician who has worked in the mental health field, patients with mental disorders span all medical specialties. My comments and concerns are therefore directed primarily at how the Bill will affect the care of patients with mental disorders, particularly as the provision of services for such patients is not optimal, despite the increased funding that we heard about. Reform of mental health legislation must be set in context. Improving patient care, including addressing safety issues, depends on a range of measures. First, it must not add to the stigma and discrimination suffered by people with a mental disorder. It must not reduce the likelihood of people feeling able to seek help early, to talk about their fears and difficulties without fearing scorn, humiliation or loss of status, freedom or job. Secondly, it cannot replace the need for adequate resources, including a well trained workforce and access to a range of treatments, including psychological therapies and new-generation medications. Thirdly, healthcare law should exist to enable patients to receive treatment within a clear legal framework, to improve personal health and well-being, to protect against abuse and, through these measures, to increase the health and safety of the nation. The fundamental principles that support all good medical practice—respect for patient autonomy and supporting people in making their own healthcare decisions, even if ultimately they make what doctors consider unwise decisions; and doctors acting in patients’ best interests if they are unable to make decisions for themselves—are as important for mental health as for any other branch of medicine. The medical profession, particularly the Royal College of Psychiatrists, is very concerned aboutthe way that some politicians, members of the Government and parts of the media have linked the need for new mental health legislation with violence. Major problems with the mental health services include lack of trained staff, unpleasant in-patient environments, and lack of funding for research on both the causes of mental illness and potential treatments. While doctors agree that very few people with mental health problems pose a danger to others, the poverty of appropriate resources and training, along with poor communication between agencies, have been highlighted by homicide inquiries as issues which need attention. Neither the most recent homicide report on the care and treatment of John Barrett, which highlighted significant failings in the system, nor the inquiry into the case of Michael Stone, which was highly influential in directing the Government’s development of this legislation, recommended any new legislation. There is a widespread perception among the general public that violence, and homicide in particular, are rising problems caused by the introduction of care in the community and loopholes in the current Mental Health Act. That assumption makes good tabloid headlines but is incorrect. The latest Home Office figures show that in 2002-03 there were 873 homicides in England and Wales, of which less than 4 per cent, approximately 35, involved suspects with a mental illness. Furthermore, the number of homicides committed by people with a mental illness has stayed constant for many decades. The number has not risen since community care began in earnest in the early 1990s. That is not to minimise the consequences of violent behaviour committed by the mentally disordered or not, which could be profound. The mental health field is acutely aware of the impact on victims, which is perhaps exacerbated when there is a perception that the violence was both preventable and predictable. In his oral evidence to the Joint Committee that scrutinised the 2004 draft Bill, Dr Tony Zigmond, the vice-president of the Royal College of Psychiatrists, said, "““the only way that I can generally decide that somebody is a danger to themselves is because they have come to see me, I have interviewed them and they have told me what is in their mind. If they do not do that, I will not know about it; and so any law that ""drives people away from the service, I have to say, increases risks for everybody and damages health … we need to get people to come and see us””." The starting point in risk reduction is encouraging patients to seek help and talk about their thoughts and feelings. It is hard to believe that potential patients will not be deterred from the services if they know that mental health professionals will have a duty to enforce treatment on them, not only in hospital but in the community, even where they are perfectly able to make decisions for themselves and when the treatment may not even benefit their health. The Government propose to improve public safety through increasing the scope of compulsory powers into the community and in detaining people even if they cannot get any therapeutic benefit from it. Health professionals believe that is the wrong approach, and it could damage the relationship between doctors and their patients and therefore may, paradoxically, increase risk. Before I make specific comments about the clauses, let me state what are important principles that should form part of the Bill. A modern mental health Act should commence with a statement of principles to guide professionals in exercising their powers and the courts in interpreting the law. It is important that these principles appear on the face of the Act, as they are vital to the fair operation of the legislation, which has such powers over people’s lives. The Mental Capacity Act, as other noble Lords have mentioned, and the Children Act both contain that principle, as does the Mental Health (Care and Treatment) (Scotland) Act. Why should the Act for England and Wales not have that statement of principles? I will now briefly comment on the Bill, which proposes changes in seven key areas. I support the principles in several of the areas, although the details will need to be debated further. Broadly, I support Clauses 21 to 24, which refer to the nearest relative; Clauses 8 to 20, which refer to widening the range of professionals able to exercise statutory functions; Clauses 30 to 31, relating to tribunals; and Clauses 38 to 39, relating to putting in place safeguards for treatment of patients and people who lack mental capacity. I know that those views are not shared by some noble Lords who have spoken. I have greater concerns about some of the other clauses. To me, the major problem with some parts of the Bill is that it is over-inclusive, which may lead to a greater use of compulsory power. The Bill broadens the definition of ““mental disorder””. It also removes exclusions, thereby widening the scope of people who may be detained. It abolishes the ““treatability”” test, thereby opening the possibility of detaining people for whom there is no therapeutic benefit, and it introduces community treatment orders with what seems like a low threshold. The cumulative effect of all those could be that people get trapped into a long-term system of compulsory care, which Professor Genevra Richardson likened to a lobster pot—easy to get into but difficult to get out of—the impact of which will disproportionately affect those from ethnic minorities. Exclusions should form part of the Bill; they make clear what kind of behaviour, beliefs and lifestyle should not be brought within compulsory powers. Again, they form part of legislation in Scotland, New Zealand and some Australian states. The Bill removes the ““treatability”” test and replaces it with a test of appropriate treatment. Legislation that takes away a person’s liberty must at least confer on them a health benefit. The breadth of powers given to clinicians should be more precisely defined. The Bill introduces a form of community treatment order. While a small number of patients respond well to CTOs, studies, including the Cochrane Library’s figures, do not show great benefits. Legislation needs to be cautious and CTOs need to be targeted on a very small group of so-called revolving-door patients. Finally, I am disappointed not to see in the Bill safeguards for the care of children and young people with mental disorders, for such safeguards are badly needed if we are to improve the care of children with mental disorders. I would also like to see reference to appropriate care and treatment of mothers and babies in specialised units where mother and baby could be admitted. Such is the provision made in the Scottish mental health Act, particularly as regards mothers with post-natal depression with children of less than one year old. I hope that we will have opportunities to debate some of those concerns during later stages of the Bill. For now, as I said in my opening remarks, I am pleased that the Government have brought forward the Bill, despite the difficulties.