Mental Health Bill [HL]

My Lords, I begin by declaring my interests. First, I am chairman of the Mental Health Act Commission. Secondly, I was responsible for leading the development and implementation of the Government’s black and minority-ethnic mental health programme, ““Delivering Race Equality in Mental Health Care””. Through these roles I have both challenged and worked alongside the many architects of this Bill. It is important and necessary to acknowledge that mental health legislation is a difficult and complex area but nevertheless crucial to get right. Many of us know that the 1983 Act needs to be brought into the21st century. The hard work and dedication of all those involved in drafting the Bill before us today should be recognised and recorded. Like many of your Lordships, I share a number of concerns about the general issues raised by the Bill. For example, the proposed single definition of mental disorder and the removal of the treatability test must be of concern to this House. I am also exercised by a number of other matters. I flag these up in no particular order: the importance of having guiding principles in the Bill, and not solely in the code of practice; the needs and rights of informal carers; provision of improved specialised advocacy, something not present in this Bill which was in previous Mental Health Bills in 2002 and 2004 and, if I dare say so, one of the few changes broadly welcomed; improving the consent provisions of the Act, which include the role of the second-opinion appointed doctor; the needs of prisoners with mental illnesses who do not currently receive mental health care; the use and abuse of seclusion and restraint; information-sharing between professionals and public bodies; advanced statements by psychiatric patients, allowing them to refuse potentially life-saving psychiatric care; and widening the groups of professional staff involved in compulsion. I am particularly exercised by the idea of losing the specialist expertise of the approved social worker, and I am not simply saying that because I am a qualified social worker. I expect others will want to discuss these points in more detail, but my intention today is to focus on why we are discussing amendments to the Mental Health Act. The noble Baroness, Lady Barker, referred to this Bill last week as, "““a Home Office Bill … masquerading as a health Bill””.—[Official Report, 21/11/06; col. 252]." Yes, some of the amendments being proposed are about public safety, but let us not lose sight of the fact that this debate should be concerned equally with the protection of patients. People detained under the Mental Health Act 1983 are among the most vulnerable in our society, and I want to address how this Bill will ensure the protection of three of those groups in particular, and how I think we can ensure that this Bill provides solutions that meet their needs. I shall focus on children and young people, older people and people from black and minority-ethnic communities. These are three of the most vulnerable patient groups affected by this Bill. Three cross-cutting themes will help us to ensure that amendments to the Mental Health Act can provide solutions and meet their needs. First, there need to be sufficient and robust statutory procedures of notification—I will elaborate on that in a moment. Secondly, there must be an adequate system for monitoring, especially what I rather loosely term ““ensuring that we look under the bed””. Thirdly, we must ensure that CPA—the care programme approach—is given statutory force as the underpinning process of the proposed community treatment order. The Mental Health Act Commission has voiced concerns about the treatment of children and adolescents under the Mental Health Act within adult mental health facilities in each of its past four biennial reports. A survey of all relevant providers for 1999-2001 found that 62 per cent of all children and young people under 18 admitted to in-patient care under the Act were placed on adult wards. The commission issueda report in December 2004, examining a period of18 months during 2002-03 when service providers were required to notify us—something not routinely done—when a child was admitted to an adult ward, so that we could undertake a follow-up visit and examine the relevant issues. During this period we received notification of 270 children, some as young as 12, being admitted to adult mental health wards. Two-thirds of these young people were boys or young men, and a third were girls. I am sure that your Lordships would agree that these children were not only in an inappropriate environment which did not cater for their basic educational, recreational and social needs, but liable to be bullied, have illegal, non-therapeutic or recreational drugs forced upon them, and witness some distressing and violent scenes. Few staff working on these wards had received any specialist training to work with children or adolescents with mental health needs. The children were as young as 12—that is surely a situation we must urgently address. We must ensure through this legislation that the needs of children and minors, especially those under 16, are protected and that alternative, appropriate care is provided. Older people are often subject to unacceptably low standards of care, which result in abuse. They, especially those with dementia, are the group most likely to be de facto detained without the benefit of the protections of the Mental Health Act. They are not formally detained, yet they are unable to leave. Their expectations about their rights and protections are low and they put up with treatment that would horrify many of us. I am reminded of the significant, albeit short-term, increase in the use of the Act to detain elderly, incapacitated people as a result of the Bournewood case. Therefore, I welcome the proposals in the Bill to incorporate changes to the Mental Capacity Act 2005 to deal with the so-called Bournewood gap, but I remain concerned that they do not yet provide adequate protections. There is still concern that decisions under that Act will not be subject to independent scrutiny. I wish to propose a solution to this lacuna. Finally, I wish to draw your Lordships’ attention to the continued unacceptable situation, which I believe to be one of the most significant remaining scandals in the health and care system, of the disproportionate rates of admission and detention of people from black and minority-ethnic communities in our mental health settings. We know from the 2005 mental health and ethnicity census of in-patients in mental health care—the first ever undertaken by the MHAC and the Healthcare Commission—that black and minority-ethnic patients are more likely to be admitted to mental hospitals than their white counterparts. For example, black African and black Caribbean people are between three and five times more likely to be admitted and 30 to 40 per cent more likely to be detained. People in the young black British group of the census, who are likely to be third-generation young black men, are 18 times more likely to be admitted. It is worrying that these trends echo the report I mentioned earlier in respect of children on adult wards, where the commission found that over a quarter—about 27 per cent—of young people detained on adult wards were from black and minority-ethnic groups. I am deeply concerned that many young third and fourth-generation black people are more likely than first-generation migrants to have high admission rates. This is counterintuitive. We would expect rates to drop as families and communities became assimilated and integrated, but that is not happening. I am equally worried that we will see higher levels of second and third-generation Muslim young men, in particular, coming into the system. We do not understand all the reasons for this, but we know that these disproportionate rates occur in the contextof the present Act. With the Bill, we have the opportunity to make sure that the operation of the Act is equitable in relation to need and to ensure that it is in line with the positive duties enshrined in the Race Relations (Amendment) Act 2000. There are two issues about the needs of black and minority-ethnic patients that I need to mention briefly. First, despite the fact that it has been a mandatory requirement to collect and record ethnic monitoring data for all in-patients since 1995—11 years now—the overall state of collection, recording and use of data is disgraceful. The census that we conducted managed a collection rate of98.9 per cent for ethnic monitoring data through providing training, advice and support to service providers, so we know it can be done. From the MHAC’s regular visiting, we know that the collection, recording and use of data are regrettably not sustained on a day-to-day basis at ward level. Therefore we cannot hope to monitor trends, which raises questions about how care can be adequately provided and how services can effectively plan and develop new service responses. Secondly, the race equality impact assessment undertaken by a committee that I chaired this summer made a number of recommendations, one of which—I am pleased to say it has been adopted—will allow ethnicity data collection on patients as part of the Bournewood safeguards. However, it is essential that the further actions described in the race equality impact assessment are also implemented; for example, recognising that it is essential to have culturally appropriate treatment and that there must be adequate monitoring of the community treatment order. I am greatly concerned that without that protection, we cannot be sure what will happen. Let me briefly give the House two potential scenarios. One possibility is that because a disproportionate number of black people are admitted under all sections of the Act, more black people will be discharged on supervised community treatment, with the possibility that the black community will be stigmatised further. An alternative hypothesis is that clinical staff will become very risk averse, and the exact opposite will occur: white patients will be discharged on CTOs, but black patients will stay even longer in hospital, leading to a concentration effect. In either scenario, there is a real danger that the new approved mental health practitioners will become social policemen with all the attendant and obvious problems of tension between patients and professionals. These potential problems need careful monitoring and, to do that, good quality data will need to be collected, recorded and analysed. In summary, we must strengthen the protections for all those subject to compulsion, including de facto detained patients as well as those correctly detained under the Act, and we must provide enhanced protections for children and older people who are admitted to or detained in mental health facilities. At the beginning of my speech, I said that I would propose three solutions, and I shall do so briefly. First, enhancing the protection of the rights of service users, especially children and older people, demands that we know where patients are, how many they are, their ethnicity and their specific health needs. In Committee, I will table amendments to give statutory effect to notification of all formal admissions to the Mental Health Act Commission, with a particular emphasis on children under 18 and older patients, and with sufficient resources to monitor their care; and notification of all deaths of patients in mental health and psychiatric facilities, whether detained or not. Noble Lords may be surprised to learn that each year approximately 380 detained patients die in care, and about a quarter of the deaths are termed ““unnatural””; that is, they are suicides, occur in suspicious circumstances and so on. Secondly, I wish to see an adequate and robust system in place to ensure that monitoring of the operation of the Act is fully supported with appropriate information collection. I will table an amendment to ensure that we strengthen the existing monitoring requirements so that all services assess, record and retain for analysis and action data on the ethnicity, age, first language and religion of patients. Ethnic recording remains unacceptably low, despite a mandatory requirement on providers for the past 11 years, and it will be essential for the proper implementation of the Bill that services are required statutorily to record ethnicity, age, language and religion and to report them to the Mental Health Act Commission. I need not remind the House that we are witnessing a growing tide of religious bigotry and discrimination, often directed against Muslim and Jewish members of our communities. Knowing the religion of patients will enable us to monitor and address any discrimination within mental health services on that basis. Lastly, I wish to see safeguards that will ensure that the proposed arrangements for community treatment orders are adequately underpinned by the care programme approach. At present, CPA does not have statutory force and, as a consequence, it is inconsistently used and too often used very badly. If we have to have a community treatment order, patients must have a robust care plan to go with it, and the Bill offers the opportunity to make CPA a statutory requirement for the community treatment order and thus extend it to all patients being discharged. An alternative approach would be to focus on the care plan instead of a community treatment order, which would give the patient statutory rights to the services covered by the care plan. I will also table an amendment to provide for improved independent monitoring of the proposed Section 17 community treatment order. I believe action across these three areas will greatly improve the Bill and will go some way towards providing the protections that are essential for any modern mental health legislation in a decent and humane society.