Mental Health Bill [HL]

My Lords, this has been a passionate and interesting debate on a complex and important issue. I pay tribute to all those who work in mental health services and share the views of other noble Lords who have spoken this afternoon about the importance of producing a workable piece of legislation for those people. From this debate, I certainly have a clear idea of where people stand on these issues. After listening to the noble Baroness, Lady Murphy, I shall be sitting up straight with my eyes alert in case she and the noble Lord, Lord Patel of Bradford, come calling with their pink forms. I am grateful to the noble Earl, Lord Howe, for the calm and analytical approach that he adopted. I agree with him that we need to test the arguments and evidence, and we need to look carefully at these issues. Now is not the right time to try to respond in detail to many of the points made, but I should like to offer a few reflections on some of the key issues that have been raised throughout this debate. First, I want to reassure the House that advocacy has not been dropped. Indeed, there are many areas where advocacy services are already available. In our view, we need to learn from those and build on that experience. We do not need legislation to do thatand it is our policy intention to give patientsaccess to advocacy on a non-statutory basis. We do envisage developments continuing to take place in this area. Secondly, the issue of principles on the face of the Bill has been raised by a number of noble Lords. I remind the House that the Bill makes a series of amendments to the 1983 Act. It is not a total rewrite of mental health legislation with a new and different structure. That approach of amending the 1983 Act was a way forward that many people supported. We have re-written the code of practice accordingly and that contains a number of new guiding principles that are different from the old code. I refer to page 8 where noble Lords can see that there are 10 key principles. I shall refer to one—the transparency principle—which states that, "““decisions by professionals and statutory bodies should be made in a transparent way””." There is another principle on participation, another on the assessment of risk principle, and so on. I commend to noble Lords a study of the code, which has a statutory basis—Section 118 of the 1983 Act. Clinicians are required to operate in accordance with the principles of the code unless there are cogent reasons not to do so. Courts would have regard to adherence to the principles in individual cases. That draft code is in the Vote Office and copies have been placed in the Library. It will be easier to keep those principles up to date in a code rather than primary legislation. A number of noble Lords have drawn attention to the fact that it is now 23 years since the last amendment of the legislation. That point is worth considering in this context. A number of noble Lords have raised the issue of a therapeutic benefit test. The likelihood of patients benefiting from treatment is clearly a factor in deciding whether appropriate treatment is available. However, it is worth reflecting that a therapeutic benefit test is like the so-called treatability test, which has fallen into disrepute in that it focuses on one factor—the likely outcome of the treatment. We do not think that it is sensible to require decision-makers to demonstrate in advance that treatment is likely to have a particular effect. I suggest that that might mean inaction. An appropriate treatment test allows clinicians to make a holistic assessment and decide whether they have something clinically appropriate to offer in the same way that their fellow clinicians would be adopting for patients in other areas of medicine. The right reverend Prelate the Bishop of Manchester discussed having in the Bill a clinically defined group of patients to which supervised community treatment should apply. However, we have defined the criteria and those groups of patients. Since the 2004 draft Bill we have, as I said earlier, restricted supervised community treatment to patients who are already detained and treated in hospital. Restricting it further is likely to limit its benefit and effectiveness. In most areas of medicine we leave a degree of discretion to clinicians to make judgments on the basis of the evidence presented in particular circumstances. We have also provided in this area for criteria in the code of practice, and there are criteria in the Bill. A number of noble Lords have talked about the numbers affected. The information I have, which underpins the regulatory impact assessment, is that should the legislation be passed in its present form the expected number of people with a CTO would rise to the order of 3,000 to 4,000 per year over a five-year period. Those are the kinds of numbers that we have provided for in the regulatory impact assessment. I shall respond to some of the concerns expressed by a number of speakers about the Bill not dealing with certain service areas. I gently suggest that it is a mistaken belief that it is necessary to prescribe those requirements in primary legislation. As a number of noble Lords have said, it is more critical that we expand the resources and range of services, a point made eloquently by my noble friend Lady Pitkeathley. As I explained earlier, we have done just that in terms of money, the professionals involved in mental health services—a good example of that is the 3,000 extra clinical psychologists who have been put in place—and the range of community services that are now available. For example, there are now 700 new multidisciplinary teams working in mental health in the community. That is a sizeable increase of the resources available to provide community services, which were simply not in place when the 1983 Act was passed. We have 20 per cent more psychiatric nurses, and over 50 per cent more psychiatric consultants in place now than we had when we came to office. As several noble Lords have recognised, this is showing through in improved services. I think that we are entitled not just to take credit for that but to say that we should be trusted with the expansion and development of the services. We have delivered in this area—we have much stronger services. That is illustrated, for example, by the fact—as a number of noble Lords said—that we have the lowest recorded level of suicide and one of the lowest levels in Europe. Given our investment in this area, we can take it as given that we will safeguard our mental health services and the extra investment that we have put in place. We will clearly need to discuss supervised community treatment further in Committee. I am grateful for the support that some noble Lords offered on that issue. I re-emphasise that in the Government’s view that is a key aspect of the Bill, with which we need to persist. It has the capacity to reduce the detention of people as in-patients and the time that they spend as in-patients. It is worth dwelling on that; I occasionally thought during our debate that that point was not recognised enough. By any stretch of the imagination it represents the prospect, if I may say so, of an improvement in civil liberties, not the reverse. By all means let us see if we can improve the legislation’s wording but let us not delude ourselves that we do not need it or assume that clinicians will not use it for the benefit of patients. It is too easy to slip into that mode of thinking. A number of noble Lords raised the issue of children and young people. No one is keener than me to ensure that that group is properly looked after and have access to the range of services. I acknowledge that sometimes our child and adolescent mental health services have not delivered for many of our young people. It is an area that we need to keep a very careful eye on. However, it is important, when considering legislation, that we remember that the Children Act is designed to safeguard children and that in some cases it is more appropriate to use Section 25 of that Act than the Mental Health Act. It is also worth remembering that a Gillick-competent child of whatever age should not have their decision to accept or refuse treatment overridden by parental consent. All 16 and 17 year-olds are considered to be competent to offer their views on treatment if they have the capacity. The draft code of practice, which I mentioned earlier, has a section on the treatment of children and young people and that code has a statutory basis. They have not been overlooked. I recognise that a number of noble Lords are not satisfied with our approach and that people outside this House share that view. I cannot respond to all those concerns now but I know that we will explore them in more detail in Committee. I recognise the deep and worrying concerns about the overrepresentation of black and minority ethnic groups in our detained mental health services. I pay tribute to the work of the noble Lords, Lord Patel of Bradford, Lord Adebowale and Lord Ouseley, and I share the enthusiasm, expressed by other noble Lords, for having them keep us focused on this issue. I am sure that they will do so during the later stages of this Bill. My noble friend Lady Ashton will join me during the Bill’s later stages on the Bournewood safeguard issues, which a number of noble Lords raised. I propose to leave those issues to later debate, but I assure the House that my noble friend has responded positively to the helpful request from the noble Lord, Lord Adebowale, for a meeting to discuss those issues as soon as that can be arranged. In conclusion, I make it clear that we are very much in listening and negotiating mode, and we will continue in that vein with the various interests that have concerns about the Bill. I reassure the noble Baroness, Lady Barker, that what I am saying applies to the Bill as well as to the code. Our listening mode will not distinguish between those two documents. However, it is essential that we modernise the 1983 Act and I am grateful to noble Lords who have recognised that. We have to do that particularly, as the noble Earl, Lord Howe, rightly said, to reflect the expansion of community services and the range of mental health professionals working in this area. We must deal with the definitional problems that arise from the 1983 Act, and we need to improve patient safeguards, such as those relating to the nearest relative. So there is much work to do. We need to adopt that constructive approach—it will certainly be the approach adopted by the Government—and produce a workmanlike Bill that can go to the other place. I ask the House to give the Bill a Second Reading. On Question, Bill read a second time, and committed to a Committee of the Whole House.