Mental Health Bill [HL]

My Lords, I welcome the opportunity to debate a new Mental Health Bill purporting to rectify the gross inequalities and disadvantages experienced by people with dementia or learning difficulties identified by the Bournewood case, and which the Mental Health Act Commission discussed more than 20 years ago. That tells you something about how long it takes to go from having an idea to having something done about it. But the Bournewood gap is not the only area where reform is needed. The Government are right to tackle some of the issues that have arisen where the 1983 Act has become inconsistent with modern practice. For example, Section 26 of the Act, which defines the nearest relative, takes no account of the increasingly normal practice of involving service users in the decisions that affect their care. A new legislative framework with proper safeguards for compulsory treatment in the community for a small number of revolving-door patients is justified. I will explain why in due course. Furthermore, there is an urgent need to deal with the unsustainable position of foundation trusts that cannot delegate the functions of Mental Health Act managers from non-executive directors. That is a small technical point, but one that is causing absolute havoc around the country. Having said that, many of the proposals in the Bill are seriously flawed and need amendment. I have several main concerns. The first is the absence of a statement of principles, which noble Lords have already mentioned. These are important to guide professionals in exercising their powers under the legislation. The Royal College of Psychiatrists rightly points out that patients’ choice and participation in their own care are central tenets in the new NHS. In a crisis, however, patients may not have the capacity to exercise their autonomy. Advance statements, setting out both what a patient wishes to occur and what treatment they would refuse in the event of being detained and lacking capacity, are gaining currency as useful and empowering tools for service users. In my humble opinion, the Bill needs to make provision for those statements. One caveat to the principle of the autonomy of the patient which I believe we neglected when the 1983 Act was being developed and debated—I was heavily involved at that time—is the need to take account of the needs and human rights of carers; for example, the right to family life under Article 8 of the convention. Having worked over the years with families caring for a family member with a severe mental health problem, and having spent five years as a Mental Health Act commissioner, I am aware that some families’ lives have been severely disrupted—I suppose one has to say that that can be an understatement—or they have lived, and still live, in fear of their loved one, who refuses to take medication. The legislation will need to find the right balance between the autonomy of the patient and the reasonable rights of carers. I do not believe this has been achieved in the Bill. The second core principle is that of seeking the least restrictive alternative, and again the needs of carers, as well as of patients, must be taken into account in the legislation when putting forward this principle. Like other noble Lords, I, too, am concerned about the criteria for detention. The proposed introduction of the appropriate treatment test and the abolition of the requirement that the treatment is likely to alleviate or prevent a deterioration in the patient’s condition opens the way for detaining people for whom there will be no therapeutic benefit—a form of preventive imprisonment. My main objection is that to override a person’s autonomy and impose detention and treatment on health grounds, which may have no therapeutic benefit, is unethical and therefore has no place in a mental health law of this country. We also need to consider the implications of such a system for the reputation of psychiatrists—who may become the jailers—the stigma attached to mental illness and the welfare of people with mental health problems in general. I share the concerns of the Joint Scrutiny Committee and the Mental Health Alliance about these issues. The Bill would add to the number of patients under compulsion and would thereby take resources away from voluntary patients and those services designed to reduce the need for compulsion, such as early intervention, assertive outreach and other recent developments. If community treatment orders are introduced as they stand in the Bill, they could have profound and very serious consequences for service users, professionals and the reputation of mental health services as a whole. I agree with the Royal College of Psychiatrists, the BMA and many others that there may be a small number of revolving-door patients who would benefit from CTOs. This proposition would assume several admissions before a CTO could be applied. As the Bill is drafted, almost every person who would now be discharged from detention under a treatment section, even on a first admission to hospital, could become subject to a CTO and thus required to comply with a regime of medication on an indefinite basis. Once ona CTO it is difficult to envisage conditions when a patient might be discharged from that order. This is a potentially tyrannical regime. In this context we need to bear in mind that the side effects of anti-psychotic medication for some patients are less tolerable than the symptoms of their illness, and those symptoms are horrendous in many cases. To impose such treatment for longer than absolutely necessary for such patients should be possible only in extreme cases. The consequences of such CTOs would be exacerbated by the current blame culture. Every tragedy involving the death of or caused by a mental health service user tends to lead to recriminations and criticisms of psychiatrists. We are in danger of creating a mental health system dictated by our tabloid press. The result of the CTO criteria as presented could be the wholesale application of CTOs because of the fear of professionals. Tight criteria are essential to protect patients and professionals. Excessive use of CTOs would undermine the efforts of doctors, nurses and social workers to establish a trusting and therapeutic relationship with service users, which is difficult enough following a period of detention in hospital with the loss of liberty and controls by professionals that this inevitably entails. Particularly serious could be the disincentive for patients to seek early help. At risk would be the work of early intervention teams, which are one of the great innovations of the Government in recent years. These teams were designed to prevent the development of revolving-door patients lurching from crisis to crisis throughout their adult lives. The envisaged CTOs could seriously undermine this work by increasing the fear and stigma associated with secondary mental health services. Families would do anything to delay the time when their young, increasingly ill son or daughter became embroiled with those stigmatised and frightening services. In this context, it is worth noting the Australian experience where CTOs were embraced in a major way and coincided with a serious failure of community care. The Scottish CTO system, which was discussed in a recent King’s Fund report, risks jeopardising its community care provision. In the Scottish case, the burden of increased bureaucracy and workloads on mental health staff is creating fears, "““that mental health CTOs may result in fewer services being available for other people with mental health needs””." Clause 25 sets out the five conditions to which a patient under a CTO would be subject while the order remains in force. This is a slightly smaller point, but it is nevertheless important. I support the view expressed by the Joint Committee that the conditions should be limited to requirements or limitations on a person’s place of residence and their medication. In particular, the condition, "““that the patient abstain from particular conduct””," is out of place in mental health legislation. It seems to have been brought across from the ASBO. The Bill introduces anomalies concerning professional roles which cannot be justified. The Royal College of Psychiatrists points out that under the new Bill, as in the 1983 Act, only registered medical practitioners are deemed to have the necessary training to make the initial recommendation that a patient meets the relevant conditions for compulsion. Quite rightly, the initial detention for treatment is made only with the recommendations of two registered medical practitioners and an approved mental health practitioner, which is a proper multi-disciplinary assessment. How then can it be suggested that one responsible clinician, who may not be medically trained and thus have many years of psychiatry training behind them, is able to ensure that the relevant conditions are still satisfied when the patient’s section is to be renewed? Is that consistent? It is surely even less appropriate to propose that a responsible clinician, who may not be a doctor, may discharge a detained patient from hospital on toa community treatment order. In view of the seriousness of such a step for the service user, which is potentially more serious than the original detention order, the reputation of mental health services and the likely impact on the quality of therapeutic relationships in the community, the decision should surely be made by a psychiatrist probably requiring a second medical opinion and, very importantly, involving the full multi-disciplinary team. A further inconsistency concerns the decision to recall the patient to hospital. The Bill envisages this decision being made by the responsible clinician—again, not necessarily a doctor—and an approved mental health professional. A similar process is proposed for the revocation of the CTO. The new Bill fails to follow the recommendation of the Joint Committee with respect to electro-convulsive therapy. It provides for a responsible clinician who may not be a doctor potentially to prescribe ECT. The Government may have in mind to deal with this matter in regulations, but the Bill would appear to be a more appropriate place for such provisions. Thus, the Bill presents three different proposals for the professionals or sets of professionals required to make key detention and treatment decisions. I ask the Government to consider the consistency or acceptable nature of those proposals. Finally, many noble Lords have spoken about the Bournewood gap, so I shall be brief. Most Bournewood gap patients require high levels of care and supervision. Many, but for their compliance with the proposals for their care, albeit often non-capacitous compliance, would be detained under the Mental Health Act. I share the concerns of the Mental Health Alliance that the safeguards set out in the Mental Health Bill are less strong and less effective than those under the Mental Health Act. In particular, under Section 58, there is a statutory second medical opinion procedure for medication beyond three months and for ECT. The Bournewood patients do not have that protection in the Mental Health Bill. They surely should. Statutory second medical opinions should also be required for treatment of these vulnerable patients for physical conditions. I cannot leave this subject without paying tribute to the powerful speech made by the noble Baroness, Lady Knight, with whom I do not always agree. She made a truly wonderful speech about the shocking starvation of elderly patients. Certainly, we have to find a way of protecting those patients. In summary, the Bill needs to be amended. However, in my view this is not a party political issue. In 1983 the political parties worked together to achieve a high quality piece of legislation, as it was for its time. The issues here are matters of ethics, justice and legislative support for a modern, community-focused and patient-centred mental health service. I hope we can once again work on a cross-party basis to formulate amendments that will find the right balance between the needs of patients or service users, carers and the community.