Mental Health Bill [HL]

My Lords, first I must declare my interests in the Bill. I am a Fellow of the Royal College of Psychiatrists and a supporter of the Mental Health Alliance which, as the noble Baroness, Lady Bottomley, remarked, is a quite extraordinary united front of nearly 80 mental health service user groups, professional organisations and campaigning charities established specifically to press for better legislation for the care of the mentally ill. We are at one in saying that this is a stigmatising, illiberal and yet curiously timid Bill. It is a little like a dying wasp which still has a sting in it. I was a co-author of the 1983 Act code of practice and for seven years vice-chairman of the Mental Health Act Commission. As a community psychiatrist I have sectioned dozens of people, so I know only too well the failings of the 1983 Act and the inadequacies of these proposed amendments. I have heard it said repeatedly—I think the Minister said it again today—that this Bill is about a small number, 15,000 or so, of people detained at any one time in hospitals. But there were nearly 47,000 uses of compulsory powers last year, which is no small number. In fact, it is more than the annual number of hip replacements in England Wales, which puts it in perspective. We are talking about a large number of uses of compulsory powers. Every person experiencing the terror and distress of mental disorder knows about these powers, the repressive culture that lies behind them and the stigmatising attitude towards those who most need our help and support. I can scarcely believe that a Government who brought forward the excellent and brave Mental Capacity Act has stuck us with a second-rate piece of work. It leaves in the wider definition of those who will be subject to compulsion. I think sometimes that if I had my pink forms with me, I could make some recommendations in the House. As I see noble Lords nodding off, their lowered consciousness might fit the bill for mental disorder within the meaning of this Bill—so watch it because I have just discovered that the noble Lord, Lord Patel, is an approved social worker. The Bill adds community treatment orders without many safeguards, but then abandons the safeguards that were proposed in the draft Bill, such as automatic appeals and the right to advocacy. The Bournewood safeguards are an improvement on what we have at the moment, but nothing like the safeguards that would be available under the Mental Health Act to people with dementia and learning disabilities in care who are resisting treatment. That is simply prejudicial and stigmatising to them. Is this really the best we can do after eight years of trying? There will be time in Committee to explore the detail of the Bill’s provisions, so today I shall focus on three matters: public safety; the continuing stigma of treating mentally ill people differently from people with other illnesses; and non-therapeutic detention. By ““public safety”” I specifically refer to homicide by people with mental disorder. I agree with the Government that this is of serious and legitimate concern. While the numbers are small—as we have heard, they are tiny compared with the number of homicides associated with alcohol abuse and domestic strife—I will not deny their importance, not least because of the catastrophic impact of such homicides in creating a false public perception of what mental illness is. The question is whether the proposals in the Bill are likely to have the desired effect, or quite the opposite. I have sat on three homicide inquiries and have read most of the other reports this past 15 years. My conclusions are similar to those of the Law Society and many others who have looked closely at the recommendations of those reports: the law is not the culprit. Time and again it is the poor co-ordination of services, the lack of follow-up, failure to listen to relatives and other statutory services, failure to use the existing legal provisions wisely and the lack of appropriate service resources and personnel. I remind the noble Baroness, Lady Corston, that the Christopher Clunis inquiry report said exactly that. Professor Nigel Eastman, the forensic psychiatrist and lawyer from St George’s, University of London, pointed out to the scrutiny committee the marginal contribution that law makes to public protection. It is all about services, he said, and the way they work. As he explained, psychiatrists know that, "““It is not that you can predict if somebody is going to kill somebody; it is that you intervene for their mental health care, and one out of goodness knows how many would have gone on to kill, but you have intervened.””." It has been estimated that you would have to lock up about 5,000 people in order to prevent one homicide, and I suggest we are never going to do that. It is pointless to prevent one homicide by repressive measures if the aggregate effect is to increase the risk of homicides and violence in the community in general. The majority of those needing help will still be failed when beds, crisis units, day centres, community and therapy services are inadequate to supervise these community treatment orders and to get people into the services they need. We need care and compassion, not more coercion. The Bill will frighten away from services potentially violent patients, as others have said and as was said repeatedly to the scrutiny committee. Early intervention services, assertive outreach and crisis resolution teams were all designed in urban inner city services who knew they were not able to reach the young folks on the streets. Young people in Lambeth, Hackney and Haringey already have a notion that if you admit to your frightening experiences, you will be banged up in a terrifying psychiatric ward and filled up against your will with drugs that make you drool and get fat. Do we think that word on the streets about a supervised community treatment order that you can be put on at the drop of a hat, with no obvious way of getting off it, will encourage people to come to services? I do not think so. This is likely to be ineffective law, because it will not deliver what the Government want. Safety lies in readily accessible and welcoming services, and I would include in that the right to ask for an assessment and get one from the family; professionals knowing what goes on in patients’ heads; and patients trusting professionals with information; and then getting the necessary supports in place. Yes, sometimes we need to use coercion and restraint, but we will know that services are improving when the number of sections goes down, not up. My second point is about the failure to base mental health law on the same principles as medicine in general. Why is it that the Scots can produce an Act based on the principle of lack of decision-making capacity, as recommended by Professor Genevra Richardson’s report to the Government seven years ago, while we have here a Bill still based on the principle that if someone has mental symptoms, even when they are capable of making fully autonomous decisions, they may become subject to compulsion? If we had a capacity-based Act, it would probably not lead to a very different group of people being sectioned, although I believe it would protect some at the margins who are now the subject of what I call the overenthusiastic psychiatrist. It would, however, have a dramatic effect on the confidence of mentally ill service users to know that their care and treatment would be subject to the same principles as someone with a physical health problem. ““Capacity”” does not refer to intellectual cognitive capacity only; it means the ability to make decisions uninfluenced by abnormal thoughts and emotions too. A capacity-based Act would stop dead the endless arguments about the types of mental disorder that ought or ought not to be subject to the Act. My third point is about ensuring that, asDr Zigmond from the Royal College of Psychiatrists said in his evidence to the scrutiny committee, mental health services do not become solely part of either the criminal justice system or an anti-social order system. They must be part of the health service. The new Bill apparently turns away from the notion in the former draft Bill of locking people up in mental hospitals even when they are untreatable, and of making doctors and nurses do the state’s business of keeping challenging people out of harm’s way even before they have committed a crime. That has been changed. Now a clause has been inserted to say that there must be appropriate treatment, but I and many others here will want to explore in Committee exactly what that means. It is by no means clear to me from the statements in the draft code of practice that the Government have accepted that clinical services are there to do clinical work, not to provide non-therapeutic detention. This is so disappointing. We want a Mental Health Act that ensures all treatment provided under compulsion gives a health benefit to the patient; limits community treatment orders to a very small number of revolving-door people and does not impose unnecessary conditions on them; gives everyone sectioned under the Act an advocate and the right to choose who speaks up for them; and gives patients and carers the right to an assessment when they ask for it before the crisis point is reached. I do not think the Bill, as it stands, will do the job.