Mental Health Bill [HL]

My Lords, I am the only speaker from these Benches today because my noble friends Lady Neuberger and Lord Alderdice could not be here for the duration of today’s debate, and my noble friend Lord Carlile of Berriew is not in the country today; he is away on government business. That is a shame because all three would have had things to say about this Bill, and the House would have greatly benefited from their experience. As the only speaker, I will succinctly say a number of different things about the Bill. I crave your Lordships’ indulgence if I go over time slightly. Noble Lords who have been reading newspaper articles—for example, last week in the Times—could be forgiven for thinking the debate on this Bill is between those who place the importance of patient rights above concerns for victims of crime and a Government who, almost alone, have understood that the way to identify those very few people with mental illness who might present a danger to themselves and others at any time is to subject many thousands of people who present no danger to detention and restrictions without safeguards. Such an impression is understandable, but wrong. Those who were severely critical of the 2004 draft Bill and of this Bill—and I am one—have always accepted the need to incorporate effective risk management and public protection into mental health policy and into any new mental health Act. However, we find ourselves in agreement with a wide range of knowledgeable organisations, from the Royal College of Psychiatrists to the Royal College of General Practitioners, that the extension of legislative power to subject people who are ill to compulsory treatment that may not have any therapeutic benefit for them, without rights to assessment and review, may not lead to greater public protection. Quite the reverse. The Government chose to ignore the majority of the joint scrutiny committee’s proposals—a body which included a former Home Secretary, three current medical practitioners, several government Back-Benchers and an opposition spokes person, and achieved unanimity. The Government have removed from the Bill any mention of people with dangerous or severe personality disorder but have retained measures that might be appropriate to that very small percentage of people with serious mental health problems, and will apply them extensively. They have ignored the committee’s recommendation that there should be a separate Bill dealing with people who are dangerous and present a clear risk to themselves and others, which should contain a far higher standard of risk assessment before a person is subject to detention. The Government could have chosen to deal with the 50 per cent of prisoners who have serious mental health problems and who prison staff frequently tell us are in prison simply because there is a serious lack of secure to medium mental healthcare beds for them, but they have not done so. Before turning to the detail of the Bill, I suggest that there are three overarching criteria upon which noble Lords should judge it. Would the enactment of these proposals add significantly to the effectiveness of current mental health practice as it is under the 1983 Act, both in therapeutic benefit for patients and increased public safety? Conversely, would it significantly harm the effectiveness of current practice under the 1983 Act? I ask noble Lords to judge the Bill that we have, not the Bill that we want. Many of today’s speeches were about the Bill that we want but do not have. It was interesting to note that noble Lords started their speeches saying that they were supportive of the Bill but went on to describe it variously as deeply depressing, deficient, fundamentally flawed, or in the words of the noble Baroness, Lady Pitkeathley, that well known critic of the Government, as a Bill that satisfies no one. I ask noble Lords to consider three points. First, the view of my noble friend Lord Carlile, which he would have given today but will do so at later stages, that, given the definition of disorder in the Bill, the proposal for appropriate treatment is intellectually dishonest. What it amounts to is not appropriate medical treatment but only habitation defined by a medical practitioner. Most people who will be subjected to appropriate treatment by compulsion under the Bill would receive treatment voluntarily under existing legislation. However, the crucial difference is that the Bill is wholly unclear about how such a patient would cease to be subject to detention, which is not mental health treatment. Secondly, on supervised community treatment orders, if these powers are to be used for a small minority of so-called revolving door patients, why is it possible to subject a person to a CTO indefinitely after only one episode of hospitalisation, which may have lasted for just 24 hours? The Government have not produced evidence from countries where CTOs are in operation on their effectiveness, or evidence from different countries on what does or does not work. The Government ignored the recommendations of the joint scrutiny committee on the level of safeguards such measures would need by not requiring the determination to impose a CTO to go before a mental health review tribunal. Nor is there any requirement on the responsible clinician to discuss the making of a CTO with a patient, or to explain the conditions to which the person will be subject, or the consequences of breaking them. A nearest relative, the person most likely to be involved in the life of a patient on an ongoing basis, and therefore often the person most at risk, has no power to object to the making of a CTO. The clinician or associated mental health professional who will be responsible for a person in the community need not be consulted about the conditions of the CTO. If a patient is recalled within one month of a CTO being made or three months of treatment being given, Section 58 treatment can be given without consent. The person thereby has fewer rights than a person detained in hospital, allowing mental health treatment to be given when it is neither necessary nor proportionate. Thirdly, those who believe, as the Government say, that this will affect a small minority of people should look at the Bill’s regulatory impact assessment. The majority of the £22 million assigned for implementation will be spent on CTOs. I suggest that the majority of CTOs will involve the administration of chemical treatments in the community. Nothing in the Bill will stop rogue practitioners making that their preferred method of treatment and using it inappropriately. The Bill is shot through with many serious flaws. It is difficult to know where to concentrate. I make two points which indicate the problem. Even the good bits of the Bill contain serious flaws. Noble Lords have spoken at length about the Bournewood provisions, which are inadequate as they rely on care home owners to trigger an assessment and give relatives no rights to request action. Noble Lords have said that there will be no aftercare for people subject to Bournewood. It is not clear in the Bill whether a person who is detained under Bournewood will have to pay for their detention. It seems that the Government may have the power to detain people and make them pay for their care. That is astonishing. Noble Lords have spoken of the missed opportunities for young people’s, children’s and adolescents’ mental health services and of the disproportionate effect of mental health legislation on people from black and minority ethnic communities. I suggest that whatever deficiencies there are in current practice will be aggravated. The regulatory impact assessment accompanying the Bill refers to £22 million. If the tribunal safeguards were to be implemented, it would cost vastly more than that. When parliamentarians discuss social and healthcare policy it is important that we bear in mind those people whom our comments will affect. I take the point made by the noble Baroness, Lady Pitkeathley, that the Bill will do nothing to help carers, who suffer greatly through lack of mental health services. Some 25 per cent of mental health users have reported asking for help but it not being available. Frankly, the Minister’s opening speech could have been an introduction to an entirely different Bill. He mentioned balancing. The 1983 Act is a balance between powers to control and treat people and independent review and representation. The Bill upsets that balance completely. It gives to psychiatrists powers that they have not asked for and which many of them think will not work and will, as the noble Baroness, Lady Murphy, put so well, risk making those patients who may be the most dangerous run from mental health services. The work that has been done to contain many people and enable them to live normal lives will be lost. We cannot compel the Government to listen. I hope that they will have a serious rethink. I disagree with the noble Lord, Lord Ouseley; the Bill is unfit for purpose. We have a very big job ahead of us to make it fit for purpose. I listened very carefully to the noble Lord, Lord Warner. He welcomed changes to the code of practice but not to the Bill. People have drawn parallels with the Mental Capacity Act, an Act that came with a draft code of practice but had at its centre principles and clear definitions of when powers would be used. That is in stark contrast to the legislation in front of us. This is a clunking fist of a Bill; this is not modernising. This is about returning people to detention, which is not therapeutic and is not treatment. It is about turning things back several decades in mental health legislation. For those reasons, it will not achieve even the very limited aims that the Government have given to it. I do not believe that it will make things safer, not for patients and not for the general public. The noble Baroness, Lady Pitkeathley, is right; this Bill satisfies no one. It deserves the fullest and toughest scrutiny at all stages of its passage—if it ever does pass through Parliament. In this House, we have the expertise to put before the Government the reasons why the legislation is deficient and to make it better. I hope that the Government will now start to listen.