Mental Health Bill [HL]

I am addressing these amendments because I have responsibility for the tribunal service within the Department for Constitutional Affairs and because the mental health review tribunal falls within my remit. In this context, I am also responding on behalf of the Home Office, for this falls fairly and squarely within its remit. I am grateful to the noble Earl for so succinctly puttingthe issues relating to Amendments Nos. 47 and 48 before us. As the noble Earl said, the nearest relative provisions of the 1983 Act do not currently apply to decisions made in respect of restricted patients, so a question would automatically be prompted by the proposals in Amendment No. 47 about whether we ought to be looking to extend those principles to apply to the restriction order in all circumstances. It is a fact that the regime for the management of restricted patients is intentionally different from that for unrestricted patients. The noble Earl alluded to that in any event. Restricted patients are people convicted of serious offences whom the courts have found to pose a risk of serious harm to others, or if they are serving prisoners transferred to prison for specialist services. They are people who, instead of being required to serve a prison sentence, have been ordered to be detained in hospital subject to special restrictions for the protection of others. As the noble Earl also indicated, the decision on the discharge of restricted patients is made either by the Home Secretary or by the tribunal. He will know that the 1983 Act allows the tribunal to make that decision on the basis of a European Court of Human Rights decision, and that is accepted and part of our legislation. It is not to me apparent that we would derive much benefit for the restricted patient in being able to divert to the nearest relative the rights of reply to the tribunal. I hear what the noble Earl said and, as ever, I will think about it. However, in the case of a transferred prisoner, the effect of a tribunal’s finding that he is not properly detained in hospital is return to prison. The nearest relative provisions are not relevant to the management of a restricted patient. These are patients required by law to be managed on the basis of the need to protect others from serious harm. I fear that we would not be able to achieve what the noble Earl wishes to achieve in AmendmentNo. 47. However, I will, as I have indicated, think about the issue in our deliberations between now and Report. On Amendment No. 48, I acknowledge the work of Professor Richardson, but of course there is the recommendation of the pre-legislative scrutiny committee to allow the tribunal to be given thepower over the transfer and leave of absence of restricted patients, which fundamentally alters the arrangements for risk management of restricted patients, taking away from the Home Secretary his sole responsibility for decision-making on the risk management of detained and restricted patients. As I understand it, the Home Office takes 2,500 decisions annually on the leave and transfer of restricted patients. I hear the noble Lord’s concern about the Home Office’s role, but in the majority of cases applications are dealt with and responses delivered within the target dates, which are three weeks for leave of applications and two months for transfers. I am not entirely convinced that the tribunal, with due respect to its work, could improve on that performance without a vast increase in resources. It currently considers about 15,000 applications for discharge on a once-a-year basis. The management of restricted patients is complex. It is not an accident. It is the result of a balance between the rights of the public to be protected from serious harm and the rights of the patients. As I have indicated, the courts can divert restricted patients or offenders convicted in the courts from prison sentences to be treated in hospital. Diversion under a restricted hospital order means that there is no tariff to serve; there is no element of punishment in that sentence. The function of the Home Secretary and the tribunal is, if I may describe it as such, a constructive tension. The Home Secretary’s responsibility is to protect the public, balanced by the tribunal’s powerto discharge the patient from detention if it is not satisfied that that is justified by the patient’s disorder and the risks that arise from it. Checking the figures today with officials, I understand that 75 per cent of restricted patients are discharged. The effect that we are conscious of is that, if the tribunal were given the additional responsibility to regulate the pace of the patient’s rehabilitation by being able to order, transfer and lead for the patient, we would be in danger of undermining the Home Secretary’s power to protect the public—the constructive tension to which I referred. We think that, because the Home Office is dealing with matters effectively, the current system works well, and that the tribunal’s ability at the end to be able to discharge the patient under the 1983 Act is the right way to go forward. I will of course consider the matter further with colleagues in the Home Office, but at this stage I believe that the balance is right. I hope that the noble Earl will withdraw his amendment.