Mental Health Bill [HL]

moved Amendment No. 72C: 72C: After Clause 38, insert the following new Clause— ““Independent mental health advocacy After section 125 of the 1983 Act insert— ““125A Independent mental health advocacy (1) The appropriate authority must arrange, to such extent as it considers necessary to meet all reasonable requirements, for help from persons to be known as independent mental health advocates, to be available to qualifying patients. (2) The help available under the arrangements must include— (a) help in obtaining information about and understanding— (i) what medical treatment is being provided to the patient; (ii) why it is being provided; (iii) under what authority it is being provided; (iv) the requirements of this Act which apply in connection with the patient’s treatment; and (v) the rights which can be exercised by or in respect of him under this Act, and (b) help (by way of representation or otherwise) in exercising those rights. (3) An independent mental health advocate authorised by a patient or his nearest relative on his behalf may at any reasonable time, for the purpose of providing, in accordance with the arrangements, help requested by the patient or his nearest relative, meet with the patient in private. (4) The appropriate authority may by regulations provide that a person may act as an independent mental health advocate— (a) only if requirements specified in the regulations are met in respect of him; (b) only if requirements specified in the regulations are met in respect of any person with whom arrangements are made for him to act as an independent mental health advocate; and (c) only in circumstances otherwise specified in the regulations. (5) In making arrangements under this section, the appropriate authority must have regard to the principle that the provision of help under the arrangements should, so far as practicable, be independent of any person responsible for the patient’s treatment. (6) The following are qualifying patients— (a) a patient who is liable to be detained by virtue of an application for admission for assessment or an application for admission for treatment under Part 2 of this Act; (b) a community patient; (c) a patient who is removed to a place of safety within the meaning of section 135— (i) in the execution of a warrant under section 135; or (ii) by a constable under section 136; (d) an accused person within the meaning of section 35 remanded under that section to hospital for a report on his mental condition; (e) an accused person within the meaning of section 36 remanded under that section to hospital for treatment; (f) a patient in respect of whom there is in force— (i) a hospital order; (ii) a transfer direction; (iii) a hospital direction; (g) a patient, not being liable to be detained under this Act, who is asked to consent to any form of treatment to which section 57 applies.”””” The noble Lord said: My Lords, in moving this amendment I will speak to Amendment No. 72D as well. We left this subject in Committee on something of a high note, with the Minister undertaking to consider this amendment during the Bill’s passage. As I understood the noble Baroness, Lady Royall of Blaisdon, to have said earlier, the Minister is still considering it, so I hope this amendment may jolly him along. As there is no difference between us over the value of advocacy services, I shall not belabour that point. I remind the Minister—unnecessarily, I know—that the Mental Capacity Act is soon to come into force, with its special advocacy provisions. Indeed, the Government have made something of a virtue of this in public in the past week. This legislation has wide support among mental health practitioners and user groups. The Minister will not need reminding that the Mental Capacity Act provides a statutory duty on authorities to provide independent advocacy to persons who, for example, face serious medical treatment under the powers of that Act. The glaring lack of such safeguards for patients who are formally detained under the Mental Health Act is spelt out in Section 37(2) of the Mental Capacity Act. I believe that this distinction between the rights of patients under the Mental Capacity Act and the Mental Health Act is not only unethical in terms of equity of provision but dangerous. It is dangerous because we run the risk of having two statutes that have considerable overlap. The Mental Capacity Act is, and is seen to be, forward-thinking, concerned with patient rights and protections, and so on, whereas the Mental Health Act appears to be a set of second-rate provisions, outdated attitudes and the shifty machinations of a Home Office forever seeking unfettered powers of social control. Every time we allow some unjustifiable inequity between the way in which these two statutory frameworks deal with patients, we move a step closer towards the Manichean system of a nice mental health law and a nasty mental health law. The danger, as this House has heard before, is that the nasty mental health law drives away those whom we would wish to seek early treatment, not least on grounds of safety. Such concerns take us slightly away from the subject immediately at hand. To return to the question of advocacy, whether a detained patient is judged to be incapacitated or not in relation to certain decisions about his or her care, we must never forget that such decisions are taken within a framework of extraordinary disempowerment. I cannot see why patients detained under the 1983 Act should be any less deserving of statutorily-based advocacy services than incapacitated patients falling under the terms of the Mental Capacity Act. I hope that this puts some extra spark into the Minister’s deliberations. I beg to move.