Mental Health Bill [HL]

My Lords, as is fitting for a Bill of such importance, this has been a debate of particularly high quality. I begin by thanking the Minister for his lucid explanation of the Government’s policies as reflected in the Bill, and for the very measured tone that he struck when doing so. As a preface to the contributions that followed, it was extremely helpful. I do not think there can now be any of your Lordships who is not conscious of the deep concerns aroused by the issues with which we are dealing. Those concerns come from differing viewpoints and reflect not only the inadequacies of the present law but the real fear that, through this Bill, Parliament might legislate in a way that did more harm than good. That is why it is important for us, as we debate the Bill, to remain focused on what must surely be the objective, which is to deliver at the end of the parliamentary process legislation that is balanced, humane, concise, workable and which will command widespread acceptance over the long term. Last week, I was rather critical of the Government for having taken so long to bring a new Mental Health Bill before Parliament. The road, as we all know, has been long and somewhat rocky. There is one point that I do not seek to argue; the Government can be credited with recognising that there is a problem with the current Mental Health Act. As the Minister outlined, the problem is that it reflects attitudes and practices that are out of date and out of keeping with modern mental health service delivery. One of the tests of the Bill, therefore, will be the extent to which it corrects those shortcomings. I also agree with the Minister that there is an issue to be addressed about dangerous mentally disordered people and whether and in what way there may be scope to improve the legal framework so that those individuals with an untreatable personality disorder who are dangerous, either to themselves or to others, can be looked after more effectively. No one should forget—we have been reminded by many speakers—the horror and grief which resulted from the case of Christopher Clunis, the schizophrenic who murdered Jonathan Zito in 1992; or the equally distressing case of Michael Stone, who murdered Lin and Megan Russell in 1996. It is right to ask what lessons lie in those tragic cases and whether more could be done to prevent similar tragedies occurring in the future. The Government believe that this Bill provides part of the answer. Like the noble Lord, Lord Patel, and the noble Baroness, Lady Murphy, I am not at all convinced that the acts of violence committed by Clunis and Stone can be laid at the door of the Mental Health Act 1983. Therefore, to the extent that this Bill is designed as a means of preventing such incidents happening in the future, I shall argue that it holds out less promise than the Minister hopes. Like the noble Baroness, Lady Barker, I believe we should be looking at other routes. Nevertheless, it is right that in our debates we should confront head-on the problems posed by dangerous people with severe personality disorders and consider ways in which those individuals might best be treated and dealt with. I say to the noble Baroness, Lady Pitkeathley, in particular, that we should not labour under any illusion. The Government have consistently stated in terms that in their view mental health legislation is not about improving services. According to them, it is about public safety and, "““the legal processes for bringing people under compulsion””." I am personally very sorry that they should have chosen to make a statement of that kind so starkly and without qualification. As many noble Lords have pointed out, mental health legislation provides a perfectly legitimate opportunity to ensure that services are delivered in a way that reflects both sound principles and best practice. I have no doubt that in Committee we shall debate a number of aspects of best practice, not least the issue of advocacy. But, aside from that, "““the legal processes for bringing people under compulsion””," can never depend on just adhering to a set of mechanistic rules. They need to be underpinned by ethical codes of practice and by legal safeguards that respect the rights, dignity and autonomy of patients. It is not only what you do, but how you do it. Compulsion is a tool to be used very sparingly. Where it is used, it is as a means not only of protecting the public but of protecting patients from harming themselves. In both contexts, but in the latter particularly, it is an instrument of service delivery. It is therefore right that the Bill and its ensuing regulations should enshrine in the rules of compulsion those things that will ensure that best practice is fostered, as opposed to being put at risk. There is a wider point, which was well emphasised by the noble Baroness, Lady Murphy. Compulsion, whenever and wherever it is used, is never bland. It is always, but always, traumatic, demeaning and stigmatising. This is a Bill which, when enacted, will govern the behaviour and practice of clinicians for the indefinite future. If we get the balance wrong between public safety and patient rights; if the Bill unduly widens the scope for individuals to be treated against their will; if it is seen to facilitate practice that traumatises, demeans and adds to stigma, it will be self-defeating. The one thing that we cannot afford is a generalised fear of the system. If people who are mentally ill are afraid of the system and of what it might do to them, that fear will deter them from seeking help when they need it. Good mental health services create a climate in which people with a mental illness want to come to a doctor and tell him what is in their heads. The noble Lord, Lord Patel, quoted Dr Tony Zigmond of the Royal College of Psychiatrists. Those words bear reading in Hansard. The simple truth of what Dr Zigmond said tells us how delicate the balance is that the Bill needs to strike. He said, "““we need to get people to come and see us””." The Clunises and Stones of this world must not be deterred from seeking help; but nor must you, or I, or anyone else, if we should ever find ourselves weighed down by mental distress. In preparing for this debate, I have been struck by the disparity between some of the things that the Government say they want to achieve and what is actually in the Bill. In their response to the Joint Committee on the draft Bill of 2004, the Government said that they wanted to, "““reduce the need for compulsion””." What they certainly do not mean by that, judging by this Bill, is that the law should make compulsion more difficult to achieve. If at one and the same timeyou broaden the definition of ““mental disorder”” to encompass potentially more people, and give ““treatment”” a new meaning, so that treating a patient does not have to involve doing him any good, as night follows day you are bound to ensure that the scope for administering compulsory treatment is made greater, not less. The Bill includes no indication of the circumstances in which preventive detention might be considered appropriate, nothing about detention being necessary in all the circumstances, nothing about the severity of illness or patient need, and nothing about alternative measures being insufficient or inadequate. So while the Government may profess that compulsion might be necessary for only a small minority of people, the Bill as drafted does not seem to chime in with that policy intent. The Government have also stated that, "““it would be inappropriate to use the Mental Health Bill to detain (or otherwise apply compulsion to) people who are not in need of specialist mental health care””." What they certainly do not mean by that, judging by this Bill, is that doctors should never be put in the position of having to act unethically. Doctors most surely will be put in that position if the test of therapeutic benefit is abandoned in relation to clinical care and treatment. It amounts to abandoning the rule of ““first do no harm””. The other dimension is that of human rights. The main criticism of the phrase ““appropriate treatment”” that we have heard this afternoon is that it is imprecise—in my judgment deliberately so—and therefore can be taken to mean almost anything. ““Appropriate”” is a classic weasel word. If there is one thing that human rights law requires in rules that govern the use of coercion, it is that those rules should provide certainty. If they do not do that, the way that the rules are exercised is bound to be arbitrary to some extent, and you need only one piece of case law for ““appropriate”” to be applied in a manner that becomes increasingly authoritarian. In my opinion, the best way for the Government to begin addressing some of the criticisms levelled at them in this debate is to look again at that weaselly phrase, which has aroused suspicion and mistrust. Our efforts in Committee will be directed at many areas of the Bill, some of them very important, that I do not have time to refer to today. But one area mentioned by almost all noble Lords was supervised community treatment. I do not object to the idea of CTOs as such, though the evidence for their effectiveness is still pretty thin on the ground. I accept that for some people a CTO may prove right and helpful. What I find disquieting about the proposals as they stand is the potential for them to be used on a large number of people. The stated aim of CTOs is that they should apply to so-called revolving-door patients, but as the Bill stands, the door does not need to revolve at all for a CTO to be imposed. The power to apply a CTO to a person is broader in this Bill than in the 2004 draft Bill. It is true and very welcome that the power would be applicable only to those patients who had previously been subject to detention and treatment in hospital. But in practice it will not take much for a CTO to be approved. In the current culture of blame in the health service and with scarce resources for delivering good aftercare in the community, the clinician will look on a CTO as the safe option; a CTO protects his back. There is, in my judgment, a real risk that CTOs will become a substitute for the lack of available services in the community. I am also worried about the lack of sufficient checks and balances. The clinician responsible for imposing a CTO does not have to refer to anybody—not the patient, not the nearest relative, not the carer, not the patient’s GP. Once the CTO is in place, the responsible clinician has total control over the conditions that are applied to it. Not even the mental health review tribunal can alter them, and the Bill provides for no independent scrutiny of the waythat these powers of compulsion are to be used. That lack of checks and balances causes me considerable worry. Not only does the Bill risk bringing more people into the system, it will also keep them in the system for longer, as we have heard. There are no maximum time limits for treatment under a CTO. If the clinician wants to renew a CTO, he can do so on the same broad grounds as he used before. Again, one can well envisage clinicians playing safe and opting for renewal. The analogy of the lobster pot has been used to describe the difficulty that CTOs represent to the patient: easy to get into, but extremely hard to get out of. It is not surprising that many people view this Bill as a charter for keeping people under compulsion for a very long time. I repeat: the more we see that happening and the more people we see being made subject to compulsion, the more we will see the trust between doctor and patient eroding and the more likely it will be that the Michael Stones of this world will be too afraid to come forward to recount the dreadful things that are in their heads. That is why the balance to be struck in the Bill is more complex than simply rights on the one hand and safety on the other. The rights and the safety are mutually dependent. The success or failure of the Bill will be judged on the way that it protects not only patient rights but the values of modern-day clinical practice, not least patient dignity and patient autonomy; because unless the Bill does those things, it will serve to protect neither patients nor the public. As parliamentarians, we owe it to some of the most vulnerable individuals in our society to make this a Bill from which those values shine out.