Mental Health Bill [HL]

My Lords, I thank the Minister for the style and substance of his remarks and welcome his offer of working together to improve the Bill as it proceeds through this House, because I think that we are going to need to. I want to declare two interests. First, last year I was a member of the scrutiny committee on the original Bill so ably chaired by the noble Lord, Lord Carlile, who I know regrets very much being unable to be with us today. Secondly, for many years my main concern about mental health issues was from the point of view of family carers. It is widely accepted that of all carers, these families often have the hardest time for reasons that are well documented and have been mentioned by other noble Lords. We must acknowledge that changing the law on mental health is an extraordinarily difficult task. The amount of time it has taken successive Parliaments and countless Ministers to get to this stage, the number of Bills suggested, drafted and then abandoned, is surely proof of that. The Government are to be congratulated on being willing to venture into these dangerous waters. But before we change the law we have to be absolutely sure that the change will bring benefits and leave us in a better situation than before. But there is the rub, because when I talk about ““us””, to whom am I referring? A mental health law must satisfy many people and cover many areas: professional workers, including doctors and nurses; carers and families; and, above all, the needs of patients themselves. According to public reactions—and your Lordships will have received as many briefings as I have—the Bill as it stands satisfies no one except for perhaps a small proportion of the public who believe that anyone with a mental illness is a danger to others and must be detained or forcibly treated. It is true that a few people fall into that category, but the number is tiny compared with the vast numbers who live in misery, often committing suicide, and who bring similar misery to their families. Many would argue that in order to improve our mental health service we do not need legislation at all, but only an improvement in the services provided. Too many people with mental health problems are in prison, in poor housing, living on inadequate benefits and in a cycle of deprivation which seems never-ending. Legislation is not the way to deal with these problems; co-ordinated and more extensive services are the way. A criticism which has been levelled at the Bill, I am bound to say with some justification, is that it concentrates on containing and controlling the few, not on treating the many. As the Bill progresses through Parliament, I hope that Ministers will be able to give further assurances that it is one strand, but one strand only, of a policy programme which might at last see mental health services be less the Cinderella than they have been hitherto. However, like other noble Lords, I acknowledge the Government’s great record on mental health services, not only in extra resources but in the extra interest they have shown. Here I should like also to commend the amazing work carried out over many years by the many campaigning organisations that represent the interests of those with mental illness and their families. We must remember too that many of the most effective ways of dealing with mental illness do not cost a lot of money. The work of my noble friend Lord Layard, for example, which has been mentioned before, shows that the provision of cognitive behavioural therapy at an early stage is not only cheap but also extremely effective in preventing the need for further expense later on. I welcome the withdrawal of the treatability test in the draft Bill which is to be replaced by a test that appropriate treatment is available, and the definition of treatment is broad, including therapies, counselling and rehabilitation. But the downside is that it may open the door to far too much compulsion, raising concerns in patient/user/carer groups about inappropriate detention and compulsion. So here again we see the problem with mental health legislation: what is welcome for one reason is unwelcome for another. Nowhere is this more apparent than in the area of community treatment orders. Anyone who has ever listened to accounts of the nightmare experiences of carers of those with a mental health problem, what they go through because of the so-called ““revolving door”” syndrome, will welcome this provision. Carers see their loved ones—and here I should say as an aside that they usually are loved ones in spite of the fact that families are often seen as the cause of the problem or even as the enemy by mental health professionals—treated in hospital compulsorily. They take their medication, get better and are discharged into the community, often into the care of relatives—long-suffering relatives. Once out of hospital, they cannot be compelled to take their medication and so in spite of the efforts of their families or their professional carers, they stop taking it and the downward spiral begins again until they are bad enough to be admitted and compulsorily medicated. But distressing as these cases are, we should remember that they are comparatively few in number. It is for that reason that the scrutiny committee recommended that CTOs be explicitly limited to a clearly defined and clinically identifiable group of patients. There is great anxiety about possible infringements of patients’ rights, and I always want us to be alive to infringements of carers’ rights too. All too often carers are denied any access to information about the condition of the patient or of the likely prognosis, while at the same time being expected to provide care in the most stressful of circumstances. It is possible in most circumstances to deal with these apparently conflicting sets of rights, but it requires time, good negotiating skills and experience on the part of the mental health professionals who do this work. One or all of these are too often missing, and there is a danger here on which we seek reassurance: whether CTOs will be used as a sledgehammer to crack a nut and as a substitute for proper assessment which takes into account the needs of all the parties involved. A right to a full assessment of all health and social care needs is surely not too much to ask at the beginning of a person’s involvement with mental health services before treatment of any kind is prescribed. Perhaps the biggest issue for carers is the fact that relatives, partners and friends do not get either an assessment when they need one or the support they need. The current system of assessments and requests for help coming from the patient does not help to get early support and intervention to people when they need it. The only alternative is to wait for the crisis when more intervention is necessary, which is costly not only for the state but for the individuals and those caring for them in personal as well as in financial terms. It is critical that people with mental illness have the right to an assessment at an early stage and that the referral systems are sensitive enough to respond to the presentation of an illness at an early stage. I want to say another word about carers’ rights. The sections on supervised compulsory treatment raise new issues on carers’ rights, yet they do not provide a mechanism for balancing those rights. Under proposed new Section 17B(3), for example, one of the conditions is that the patient reside in a particular place. It is critical that there is some consultation and discussion about where that place is. For example, if it is with a carer, and particularly in the carer’s home, and the person with mental illness and the carer no longer want to live together, then the treatment order needs to be sufficiently flexible to allow that to happen rather than to trap individuals into situations that might involve breaches of the Human Rights Act as well as a great deal of distress. I welcome the nearest relative provisions and that the powers they contain are being retained. These are important provisions and I welcome in particular the fact that they are being updated to ensure that civil partners have equal rights to those of husbands and wives to be treated as nearest relatives. But while the Department of Health has rightly accepted that the provisions need to be updated and amended, it may have missed an opportunity in this area. I know that over the years Carers UK has provided the department with many examples of where carers are excluded from decision-making because they are not at the top of the nearest relatives list. In former draft Bills, the department has suggested that carers should be second in the ranking after the nominated person, and many people still feel that this should be the case. I am also concerned that the patient or carer will have to go through the county court system to displace a nearest relative. This could prove divisive and inaccessible for patients and carers alike. The other issue that the Bill must ultimately deal with is to bring about a culture change where information from carers is valued, as is their involvement. It is unreasonable to expect a family to care for someone but not equip them with the information they need to do so and to ignore their views and concerns when this could have led to better or more appropriate treatment for the person for whom they care. The vast majority of carers act in the best interests of the person for whom they care, and we should never forget that. Your Lordships will understand that I am, at best, ambivalent about the Bill. I cannot forget the overwhelming view of those who gave evidence tothe scrutiny committee that the proposals set outin the 2004 Bill were unethical and unworkable. While the Government have made a brave attempt to rework the original proposals, I am a long way from being convinced that they have taken on board the conclusion of the scrutiny committee that, "““the primary purpose of mental health legislation must be to improve mental health services and safeguards for patients and to reduce the stigma of mental disorder””." We all know that services for people with mental disorders are patchy and inadequate. Much of the need for compulsion, on which the Bill focuses, could be eliminated if a variety of adequate treatmentwas available at an early enough point to avoid deterioration and breakdown. As the Bill proceeds through your Lordships' House and another place, I hope we shall concentrate on making enough changes to it so that we can be sure—or, at least, more sure than we are now—that it will bring this about.