Mental Health Bill [HL]

moved Amendment No. 47: 47: Clause 31, page 31, line 40, at end insert— ““( ) In section 70 (applications to tribunals concerning patients subject to hospital and guardianship orders), at the end insert— ““(2) An application under subsection (1) may be made on the patient’s behalf by his nearest relative.”””” The noble Earl said: I will also speak to Amendment No. 48. Under the Mental HealthAct 1983, the nearest relative is one of the major safeguards of the patient’s rights. The person who is identified as the nearest relative has extensive powers in relation to the detained patient in both civil and criminal cases. Where a patient has been admitted to hospital for compulsory medical treatment via the courts or via prison, the nearest relative has the power to apply to the mental health review tribunal on his behalf. This is an important safeguard, especially where the patient lacks capacity or is simply too unwell to exercise his rights to appeal against detention. However, this does not apply to restricted patients, who under the current Act have no nearest relative. This means that many restricted patients who fail to exercise their right to appeal to the tribunal will not have their cases legally reviewed for three years, which is the point at which the Home Secretary has a duty to refer them to the tribunal. Only restricted patients lack the safeguard of having a nearest relative and I believe that there is a strong case for putting them in the same position as other Part III patients. That is what Amendment No. 47 seeks to do. The purpose of Amendment No. 48 is to give the mental health review tribunal the power to order the transfer and leave of absence of restricted patients. That proposal originates from a recommendation made by Professor Genevra Richardson’s expert committee. She said about the current arrangements: "““Our concern first sprang from our awareness that it was a considerable inhibition on moving patients across or down levels of security within the hospital system … we now have a tribunal ""that can order the discharge of someone with a restriction order but we do not have a tribunal that can order the essential precursors to discharge, the leave and the transfer. So we feltthat there was a potential problem there with compliance with Article 5(4)””." At the moment, the power to order transfer and leave of absence rests solely with the mental health unit of the Home Office. That is an administrative body whose decision-making has been widely criticised for rejecting the risk assessments made by professionals and for over-estimating levels of risk leading to patients being stuck in inappropriately high conditions of security. Many feel, and I am one, that it would be more appropriate for such decisions to be taken by a judicial rather than an administrative body. Underlying that is the desirability of providing an enforceable right to treatment in the least restrictive environment, consistent with the needs of the patient and the need to protect the public. The problem of patients stuck in inappropriately high conditions of security is long standing and, while it is welcome that the Government plan to increase the provision of medium and low secure facilities, the decisions surrounding these transfers are of such importance to the individual’s liberty that they really should lie in the hands of the mental health review tribunal. The tribunal is best placed to make decisions about the level of security that a patient requires, having heard all the medical evidence with representations from the patient. So I put it to the Minister that it is both wasteful and unjust not to allow the tribunal to act on that information. Of course I do not say that the Home Office should not continue to have oversight of the individual restriction order cases. The Home Office is the place where the continual history of a long-term dangerous patient is located and it should retain that oversight role. However, the decision-making arrangements need to be revised. I hope that the Government will be sympathetic to these amendments and I beg to move.