Mental Health Bill [HL]

moved Amendment No. 33B: 33B: Clause 26, page 15, line 31, at end insert— ““(b) if the responsible clinician is not a medical practitioner, the responsible clinician has arranged for the patient to be examined by— (i) the registered medical practitioner who has been professionally concerned with the medical treatment of the patient; or (ii) if no such practitioner is available, a registered medical practitioner who is an approved clinician; and the medical practitioner has made a written recommendation in the prescribed form including a statement that in the opinion of the practitioner the relevant criteria set out in subsection (5) below are met; and”” The noble Earl said: My Lords, in speaking to Amendment No. 33B I shall raise an issue that has caused considerable and deep divisions between the Government and the mental health community, namely, the conditions which should determine the threshold of entry on to a community treatment order. I shall speak also to Amendments Nos. 36A, 47 and 59. The Minister should note that, in moving this amendment, I do not oppose CTOs outright, even though there is a strong argument for doing exactly that. If there was one speech in Committee that summed up the intellectual case against CTOs, it was that of the noble Baroness, Lady Meacher. The supposed effectiveness of CTOs as proclaimed by the Government is not backed up by any convincing evidence. Even more serious than that, there is a real risk that the coercive element in CTOs will undermine the whole basis on which community mental health services are provided through assertive outreach teams and the rest. Those services depend for their success on positive engagement and trust. It is very difficult to have benevolent treatment and coercion operating side by side; indeed, some would say that it is impossible. At the very least, the combination sends a very mixed message to the patient. The Minister seems to take it as self-evident that being on a CTO is better for a person than being detained as an in-patient because it is less restrictive, but he overlooks an important fact: although a patient may have been ill enough to be placed in hospital at the outset of the process, by the time the issue of discharge arises, that is no longer the case. At that stage, the issue is whether a person who is well enough to enter the community should remain under the enforceable and coercive power of an order. It is by no means self-evident that, for the generality of patients, continuing coercion represents an ethical or therapeutically effective way forward. We have to be clear that these orders are likely to be exceedingly restrictive in some cases. Clinicians will need to think carefully before imposing them because there is no doubt that any CTO will interfere with a person’s family and private life, sometimes severely. Yet the Bill tends to encourage the opposite approach—the noble Baroness, Lady Meacher, made this point—because it is framed in such a way as to put pressure on professionals to impose CTOs, even when they may not really wish to, purely to cover their own backs. I do not think we should put professionals in that position, which is one of the main reasons why I feel we owe it to them and patients to define as closely as we can the cohort of people whom we are prepared to accept could be made subject to an order. The amendments take as their starting point a premise that I am not sure the Minister has ever really accepted, which is that, leaving aside people who fall within Part 3, patients who retain full decision-making powers in relation to their own treatment should normally be allowed to take control over their own lives, just as anyone with any other health condition should be able to. Only where decision-making powers are impaired is there an ethical case for compulsion. Furthermore, I believe that those who are not a serious risk to others can be treated satisfactorily by the existing provisions of the Mental Health Act relating to leave of absence and supervised discharge. Although supervised discharge is little used, it has been proven to be effective in most of the cases in which it has been used over a wide range of clinical and social problems. It is suited to patients who are in hospital under compulsion and whose condition has stabilised to the extent that they do not require close hospital supervision but who are not well enough to be fully discharged from medical care. It is a supportive regime that strengthens rather than weakens the therapeutic relationship. One of the interesting features of the research into the use of Section 25 supervised discharge is that it improves compliance with medication. The absence of a coercive element does not seem to matter. Apart from the fact that that finding calls into question the whole rationale for CTOs, it provides good grounds for leaving out Clause 30 and retaining the option of supervised discharge. If one accepts that—and the vast majority of mental health professionals do—it is clear that we need to exclude from the ambit of CTOs any patient who represents no serious risk to others and can take balanced decisions about his or her own treatment. So what kind of patient is a CTO potentially suited to? The Government’s argument for the use of CTOs has focused on cases where a person poses a serious risk to others. The thought is that this group of people will benefit particularly from the blend of supervision, care and control and the possibility of recall that a coercive outpatient system provides. As far as hard evidence goes, the jury is still out on whether that assumption is valid in the sense of CTOs being able to prevent homicides. We simply do not know. However, in an effort to be fair to the Government, I am willing to take their belief at face value for the purposes of the Bill. Accordingly, the amendment states that those who pose a serious risk of harm to others should be liable to be placed under a CTO; furthermore, they should be people whose ability to make decisions about receiving medical treatment is significantly impaired. In a nutshell, we are dealing with patients who do not, at the relevant time, accept that they are a risk to others, despite being advised that they are, because of the nature of their mental disorder. In the accepted jargon, they lack insight. However, we need to go further than that. If we allow CTOs to be imposed on every patient who falls into that category, we run a big risk of leaving very wide scope for these powers to be used on people who will derive no benefit from them. There is simply no evidence that, for the majority of patients, coercion in the community works better than an informal regime of community supervision and care. If coercion is used, it must be justifiable. For that reason, I have also argued under the amendments that we should seek to restrict the application of CTOs to a relatively narrow group, commonly referred to as revolving-door patients. They are defined by a three-pronged criterion. The first prong is that, on at least one occasion for the current admission under Section 3, the person has refused to accept medical treatment for a mental disorder. The second is that, when appropriate medical treatment has been refused in the past, there has been a significant relapse in his condition justifying compulsory admission to hospital. The third is that, when the person was admitted compulsorily, medical treatment resulted in an improvement in his condition or prevented its deterioration. The conditions therefore link the previous refusal of treatment which results in admission with the proven benefit to the patient from the treatment proposed. They then require a relapse to have occurred because of the failure to continue with the medication. Furthermore, the doctor must be clear that the patient is unlikely to continue with the medication without an order. In that way, the legislation will make clear to professionals that the key criteria are: previous relapse, proven therapeutic benefit from treatment and the need—the need—for compulsion. The amendment also stipulates that any decision to place a patient on a CTO must involve a medical practitioner. That is because only a medical practitioner can take what are essentially medical decisions—what is the person's mental disorder, how severe it is, how likely it is that the patient will comply with medication, the risk of relapse and so on. I do not expect the Minister to change his position on the issue. He has previously resisted any narrowing-down of the criteria for CTOs. We are therefore likely to remain as far apart at the end of this debate as we were at the beginning. That is not a happy state of affairs, but it does not detract from my belief that the amendments represent the right way to proceed, for all the reasons that I have given. I therefore beg to move.