Clause
32
Community
treatment orders,
etc
Tim
Loughton:
I beg to move amendment No. 63, in
clause 32, page 20, line 14, after
second ‘patient’, insert ‘aged 16 or
over’.
The
Chairman:
With this it will be convenient to discuss
amendment No. 65, in clause 35, page 31, line 25, at end
insert—
‘(6) The fifth
condition is that the treatment does not conflict with a decision made
by a person with parental responsibility for the
patient.
(7) In this section
“parental responsibility” has the same meaning as in the
Children Act 1989 (c.
41).’.
Tim
Loughton:
For clarity——if I may have your
attention, Lady Winterton, I point out that we have come to the last of
the big six areas of amendment in the Lords that many hon. Members
might like to speak on: community treatment orders. There are many
amendments and some new clauses in five different groupings. I do not
know whether you were going to allow a clause stand part, because there
is a big matter of principle with community treatment orders, beyond
the specific amendments. The first four amendments, including the one
dealing with the two lines that I should like removed, are smaller,
technical amendments that rely on the conditions already attached to
CTOs remaining in the Bill, although the Government will seek to take
those out.
I am happy
to speak briefly to amendments Nos. 63 and 65—and a lot of what
I shall say pertains to amendments Nos. 64 and 66—and then to
have what will effectively be a clause stand part debate as
part of the discussion on the Government amendments Nos. 23 onwards,
which deal with the matter in more general terms. It might be helpful
for the Committee if we focused all our bigger guns on that central
part, rather than having a clause stand part debate at the end. If that
would be helpful, I should be happy to go along with
it.
The
Chairman:
Now that the hon. Gentleman has got my
attention, I can answer his query. What he proposes is very sensible. I
hope the Committee is clear.
Chris
Bryant (Rhondda) (Lab): I did not understand
it.
The
Chairman:
Never mind, someone will
explain.
Tim
Loughton:
I am greatly flattered, Lady Winterton. The
Opposition are clearly confused, buy we will move
on.
Amendments Nos.
63 and 65 are tabled on the assumption that community treatment orders
remain—
The
Chairman:
Order. I shall clarify further, because I
suspect that everyone is in a muddle. We shall have a wide clause stand
part debate, during which the amendments will be debated, briefly or
otherwise. Is that
clear?
Tim
Loughton:
May I make your clarity a little clearer, Lady
Winterton? What we are proposing, and what I hope you are agreeing to,
is that we will talk specifically and briefly to amendments Nos. 63 and
65, and amendments Nos. 64 and 66, and then when we come to the third
raft of Government amendments, led by Government amendment No. 23, you
will permit a more wide-ranging debate on the principle of community
treatment orders in place of a clause stand part debate at the end. I
think that everybody might find that useful. In the absence of a
“no”, I shall carry on talking about amendment No. 63, if
that is all right, Lady Winterton. That has taken 10 minutes out of the
time for debate,
anyway.
Amendments
Nos. 63 and 65 relate to the effect of CTOs on children and why
children should be excluded altogether. CTOs are controversial, as we
know and as we will come on to in detail later. We are not clear about
why the Government have decided that such powers should be applicable
to children and young people, particularly given that powers that
currently apply to individuals living in the community, such as
guardianship and supervised discharge, have a lower age limit of 16. I
gather, from the research commissioned by the Government from the
Institute of Psychiatry about the international experience of CTOs,
that children and young people were not included in the review of the
literature.
Under the
United Nations Convention on the Rights of the
Child,
“the best
interests of the child shall be a primary
consideration”
In
“all actions concerning children”. The amendments would
limit CTOs to those aged 16 and over and are intended to find out why
the Government feel that they should be applicable to under-16s. What
evidence is there to suggest that children and young people will be
disadvantaged if CTOs are not available to them? As the Government have
made clear, the Bill is not about ensuring that people receive
services. Being subject to a CTO is not the only route to receiving
appropriate services in the
community.
The
provisions relating to treatment in the community are complex and
confusing. Furthermore, there is insufficient guidance in the draft
code to explain how those are intended to work in practice. There are
three keys areas of particular concern in the
treatment in the community of children and young people. First, there
are fewer safeguards for incompetent children than for adults who lack
capacity. For example, there is no requirement to involve a person with
parental responsibility for making treatment decisions for a child who
lacks competence to make such decisions for himself or herself.
Secondly, there is no definition of competence or any detailed guidance
in the Bill or any draft code on how to assess that. Thirdly, there is
no definition for the use of force. That is why amendment No. 63 would
add “aged 16 or over” to the
considerations.
Amendment
No. 65 would ensure that, where non-emergency treatment is proposed for
a child community patient—in other words, a child under the age
of 16 who has been assessed as lacking the competence to consent to
treatment—treatment will not be given if a person with parental
responsibility objects to it. We think that the amendment is needed,
because individuals subject to CTOs cannot be treated in the community
if they have capacity—or, in the case of a child community
patient, competence—to make treatment decisions and to refuse
such treatment. However, if the person lacks capacity, in the case of
patients over 16, or competence, in the case of a child community
patient, treatment can be given if certain conditions are
met.
The
Bill states that treatment cannot be given to an adult community
patient if it conflicts with decisions made by individuals authorised
to make decisions on the patient’s behalf where the patient is
not capable of making such decisions for him or herself. We believe
that that is an important safeguard, given that the Bill allows
treatment to be given, even if the patient objects, as long as it is
not necessary to use force against the patient to give it. However,
there is no provision for any person to be consulted as to whether the
child community patient should be given the proposed treatment. The
amendment would introduce such a
requirement.
These
are probing amendments to find out the Government’s view on the
use of community treatment orders for children. What safeguards exist
for children comparable to those proposed for adults? I am sure that
the Minister will be delighted to answer those
queries.
Ms
Winterton:
The amendments deal with important issues. They
seek to protect children and safeguard their treatment, which is an
honourable intention, but we do not feel that they will achieve it. It
might be helpful if I put the matter in context. We expect very few
people to be suitable for supervised community treatment. As hon.
Members know, only patients detained for treatment under the Act will
be eligible for SCT. Consequently, it will be available only to the
small number of children detained.
Even then, most children will
not be eligible, because SCT will not be necessary to ensure that they
get the treatment they need in the community when they leave hospital.
For example, many children will live at home with parents, who can
ensure that their daughter or son continues with key treatment in the
community if that is necessary to keep the child well. Equally, the
home can provide a safe environment for a child to live without
endangering themselves or others. For many children, SCT will not be
necessary, and if it is not necessary, it is not permitted.
That said, the Government do
not think it right to prevent children under 16 from benefiting from
SCT altogether, as amendment No. 63 would. SCT is designed to allow
patients to be treated in an environment of minimum restriction
according to their individual needs and circumstances. It will allow
some patients who would previously have been detained to spend less
time in hospital and more time at home with their families, an increase
in freedom from which children as well as adults must be able to
benefit. If we choose an arbitrary cut-off point of 16 to decide who is
or is not eligible, we risk discriminating against children under that
age when SCT could bring real benefits. That approach would risk
contravening European human rights
law.
2.45
pm
The review of
CTOs internationally covered children and young people. It covered CTOs
throughout the world, many of which have no lower age limit and
included children and young people. Ruling out SCT for children under
16 years old will fundamentally fail to protect them. It would be an
unnecessary restriction. If that is what clinicians believe is right
for a child and it might mean that a child could return to a home
environment, it is important that we accept that it might be best for
an individual child. To rule it out completely would be wrong. It would
not force anyone to make a CTO on a child if it were not appropriate
for that
individual.
The hon.
Member for East Worthing and Shoreham was right to say that we need to
provide very good guidance to practitioners when treating children
under the new provisions. We must make sure that we cover the special
needs and circumstances of children. My officials have therefore
invited experts in such matters, including the children’s
commissioner, to work with us on the code of
practice.
As I have
said, we do not accept amendment No. 65, but that does not mean that we
underestimate the vital role that parents can and should play in
decisions that are made about what treatment their child should
receive. However, the amendment goes too far because it would allow
parents to veto treatment on behalf of a child who lacks competence to
consent to treatment. It would be inconsistent with the approach taken
under the Act. If a clinician’s view is that treatment needs to
be provided to a child, for parents to have a veto over that would make
it inconsistent with the general working of the
Act.
James
Duddridge (Rochford and Southend, East) (Con): Earlier,
the Minister talked about putting a good target in place for getting
children out of adult psychiatric wards—that no under-16s would
be on such wards in 18 months. What safeguards is she putting in place
in terms of monitoring to ensure that young people are not forced into
CTO-type arrangements to deliver the pledge? It is a short-term issue,
but an area where extra safeguards might be worth
while.
Ms
Winterton:
We must be absolutely clear that a CTO could be
given only if it were right for the individual child. It must not be
given as a mechanism for bed management. It is about making sure that
the child is properly cared for, and that treatment is
provided in the least restrictive environment, if that is what is
appropriate at the
time.
I
return to why amendment No. 65 is unnecessary. In practice, SCT cannot
work in most cases if the parent refuses to allow the patient to be
treated. In many instances, a child subject to SCT will be living with
a person with parental responsibility for the child. If that person is
unhappy with the treatment that the child is to receive in the
community—for example, a particular form of medication—he
or she will just not be prepared to ensure that the child receives it.
If that happens, the patient’s SCT plan would become
ineffective. Without the co-operation of the parent, SCT simply will
not work. It means that the hospital medical team is most unlikely to
consider allowing a child to live with a parent without first
discussing the matter with, and taking into account the views of, that
parent. That is crucial, and I assure the Committee that we will ensure
that it is fully addressed in the code of practice.
There will also be cases in
which a child is made subject to SCT but is not living with the person
with parental responsibility. It will sometimes be appropriate to
consult that person; in other cases, it may not be. It would be wrong
to allow such a person to exercise a veto that prevented the child from
benefiting from
SCT.
I remind hon.
Members that clause 10 provides that the views of carers and interested
parties is one of the matters to which the application of the
principles that will inform decisions under the 1983 Act must apply. A
person with parental responsibility for the patient will count as a
carer or as an interested party. Their views will, therefore, be taken
into account when decisions are made about whether to put a child
patient who lacks capacity on to SCT, and about what treatment to give
him. The views of whoever is looking after the child will be taken into
account—for example, where the child on SCT is not living with
their parent, but may be living with foster
carers.
Other
problems with amendment No. 65 are that it does not take account of the
possibility that different persons with parental responsibility may
have conflicting opinions about what is right for the patient. Under
the Children Act 1989, the consent of any one person with parental
responsibility is sufficient for treatment to be lawfully given to the
patient. For example, for a patient to be treated informally, treatment
can lawfully be given for mental disorder with the consent of one
person with parental responsibility—say, the mother. If the
father disagreed, he could prevent treatment only by obtaining a court
order prohibiting it. That is irrespective of whether the parents live
together or which of them lives with the
child.
Because the
amendment would allow one parent to veto the provision of treatment, it
could make SCT impractical, even if the proposals were that the parent
should live with the other person with parental responsibility. I hope,
therefore, that, following that clarification, hon. Members will not
push the
amendments.
Tim
Loughton:
I am grateful to the Minister for giving a more
detailed response than I envisaged. However, she made some useful
points and said that the intention was honourable, which was helpful.
It was
also helpful that she said that the children’s commissioner and
other practitioners will be invited to consult as part of the
accompanying code of practice. We might argue on another day about what
she described as an arbitrary cut-off age of 16, and I do not want to
repeat our debates on age-appropriate treatment. We want to move on,
because the meat of what is behind this detail is contained in a later
strand of amendments. On that basis, I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Amendment
made: No. 22, in clause 32, page 20, line 21, leave out
from beginning to ‘and’ in line
32.—[Ms Rosie
Winterton.]
The
Chairman:
Before I call amendment No. 64, perhaps it would
be helpful if I say that I fear that one or two hon. Members may still
be unclear about the scope of debate this afternoon. As far as I am
concerned, there will be no separate stand part debate. That was the
original intention, even if it was not clear. I will, however, allow
debate on each group of amendments to cover clause stand part issues,
either the group led by Government amendment No. 23 or any other group
to which hon. Members wish to
speak.
Tim
Loughton:
I beg to move amendment No. 64, in
clause 32, page 20, line 35, at
end insert—
‘(d) the
following persons have been consulted about the making of a community
treatment order—
(i) the
patient;
(ii) any person with
parental responsibility;
(iii)
any person who the responsible clinician believes will play a
substantial part in the care of the patient after he leaves hospital
but will not be professionally concerned with the after-care services
to be provided to him; and
(iv)
the nearest relative of the
patient
and the responsible
clinician has taken into account any views expressed by the persons
consulted,
(e) in this section
“parental responsibility” has the same meaning as in the
Children Act 1989 (c.
41).’.
The
Chairman:
With this it will be convenient to discuss
amendment No. 6, in clause 32, page 22, line 7, at end
insert—
‘17BA Making of
community treatment order
(1)
The responsible clinician shall not make a community treatment order
unless—
(a) the
following persons have been consulted about the making of the order
under section 17A and the conditions to which the patient is subject
specified under 17B—
(i)
the patient;
(ii) the nearest
relative;
(iii) any person with
the authority to act on the patient’s
behalf;
(iv) one or more
persons who have been professionally concerned with the
patient’s medical treatment in
hospital;
(v) one or more
persons who will be professionally concerned with the treatment to be
provided for the patient after he leaves hospital;
and
(vi) any person who the responsible clinician
believes will play a substantial part in the care of the patient after
he leaves hospital but will not be professionally concerned with the
medical treatment to be so provided,
and
(b) the responsible medical
officer has taken into account any views expressed by the persons
consulted under paragraph
(a).
(2) On making a community
treatment order in respect of a patient the responsible clinician
shall—
(a) inform the
patient both orally and in writing;
and
(b) inform any person who
has been consulted under paragraph (a)(ii) and (iv) of subsection (1)
above;
of the matters specified
in subsection (3) below.
(3)
The matters referred to in subsection (2) above
are—
(a) that the order
is being made;
(b) the
after-care services to be provided under section 117 below;
and
(c) any requirements to be
imposed upon him under section 17B
above.’.
Tim
Loughton:
That is very generous of you, Lady Winterton,
but I will save my general comments until we debate the group whose
lead amendment is Government amendment No. 23, where I think they will
be most
appropriate.
With
amendments Nos. 64 and 66, we are giving the Committee an either/or
choice. This is to do with giving more details for the conditions under
which community treatment orders can be granted. Amendment No. 64
relates to the inclusion of parental responsibility within
that.
The
purpose of the amendments is to create a duty for the responsible
clinician, before making the supervised CTO, to consult and take into
account the views of the patient, the nearest relative and any person
involved in the care. We have severe reservations about the extensive
use of the supervised CTOs that the Government are looking to bring in,
but they must at least be accompanied by these safeguards. That is why
I am asking the Minister whether the thrust of what we propose in the
amendments has been taken on board. The amendments also ensure that the
responsible clinician must inform the patient, the nearest relative and
the primary carer about the care plan being
proposed.
Under the
Bill, a clinician can make a CTO if an approved mental health medical
professional agrees. However, there is nothing in statute to require a
clinician to consult a patient or the primary carer, who will be
responsible for providing most of the care when the CTO is in place.
Just as the Minister has already said, child patients will be expected
in many cases, although not exclusively, to be with parents or those
with parental responsibility who will be providing the care. The onus
will be placed on other family members to provide that care for people
living at home or back in the community on a supervised
CTO.
A duty to
consult will help to ensure that the needs of all those providing care
for the patient are taken into account when making a supervised CTO.
For example, it will ensure that the limitations and conditions placed
on a CTO, such as curfew orders or a ban on going to the pub, which we
will be questioning later during discussions on other amendments to the
clause, are proportionate and have the support of those who are
responsible for enforcing them—the carers. The
clinicians will be one step removed from the people who are on
supervised CTOs. The doctors in the hospital will not be
seeing—at all or on such a close basis—their patients who
are on supervised CTOs. A similar requirement is in place under section
25 of the Mental Health Act 1983, before a psychiatrist makes a
supervised discharge order. That is the closest
parallel.
The
responsible clinician and the approved mental health professional may
not have met the patient before their crisis. A CTO can be imposed on a
patient even if it is their first hospital admission—we will be
taking issue with that later on—and may not have in-depth
knowledge about the patient’s home life or the needs of the
patient’s carers. That could lead to assumptions about the
patient and unreasonable expectations on the carers to supervise the
patient—for example, transporting the patient or specifying
meetings and appointments, policing the conditions or even housing the
patient. The amendment also ensures that the responsible clinician
shares information with the patient’s
family.
Mr.
Boswell:
I defer to my hon. Friend’s expert
knowledge in this area, but is he at all worried that carers, for
example, or others involved in the delivery of this supervised
compulsory treatment order, may be subject to some legal obligation and
may be at some legal risk if they are unable to comply with terms set
in relation to the individual? Might they be said, for example, to have
aided and abetted a failure to comply with an
order?
Tim
Loughton:
That is an important point. It is essential that
those people are kept in the picture right from the start, all the way
through the duration of a supervised CTO, so that they can ensure it
can work to the benefit of the patient, if it is of benefit—we
will talk about that again later—and they can discharge their
own responsibilities, legal or otherwise, to the patient. My hon.
Friend is
right.
The
amendment also ensures, as I said, that the responsible clinician
shares information with the patient’s families and primary
carers. Many carers’ organisations, such as Carers UK and SANE,
regularly report that basic information is often denied to those
nearest and dearest to the patient. I have heard of a lot of such cases
from SANE, where the concerned parents of a son or daughter with severe
mental illness problems desperately want to help—as most
would—but they just do not get the information enabling them to
be as caring carers as they would like to be. The amendment allows for
adequate sharing of information with families and the different
agencies.
3
pm
Angela
Browning:
There is a common practice among the medical
profession generally, not just in the area of mental health: once a
child reaches the age of 18 and becomes an adult, that patient’s
relatives sometimes have a battle, even though the patient is very
dependent on them, sometimes for the rest of the patient’s life.
More often than not, the relatives are told that the patient is now an
adult in their own right, information cannot be shared and they are not
going to be told this or that. We need to sort that out, because people
are given or assumed to have taken on responsibilities, but with only
half the knowledge.
Tim
Loughton:
My hon. Friend makes a good point and speaks
from personal experience. The arbitrary cut-off term that the Minister
used is particularly appropriate here. Somebody with a severe
disability or a mental illness at the age of 17 years and 11 and a half
months does not automatically change their persona or metamorphose into
another sort of person when they hit their 18th birthday. So many of
the problems that we come across as constituency Members concern the
transition of children into adulthood, when they require the support of
various agencies or of part of the health service or social services.
The structures are not set up—because of rules, regulations and
criteria—to deal with someone achieving the age of 18 or 16 or
whatever. That is nonsense, because surely those agencies should be
there to give the appropriate care and support for people in such a
condition. That condition is entirely time insensitive in respect of
when they happen to reach the arbitrary date—their 18th birthday
in this case.
A
Health Care Commission survey shows that too few service users are
aware of their care plan. Forty-five per cent. of service users with a
standard care plan and 71 per cent. of those with an enhanced care plan
said that they had been offered a copy, although every service user
should have one by
right.
Under
compulsion, the need to ensure that every patient has a written copy of
their rights and the duties placed on them is surely much greater.
This, as my hon. Friend was saying, is a legal document aimed at
preventing readmission to hospital. It is equally important that
patients are fully aware that care services due to them are free,
according to section 117 of the 1983
Act.
If the
Government think that CTOs are the answer and that they can make them
work, surely the Minister must agree that the carers who in many cases
will be those responsible for the day-to-day management of a
person’s condition, in a non-medical sense, are fully
informed—fully consulted in the first place—and then kept
abreast of the requirements of that person while on a supervised
community treatment order. On that basis, I think that the amendments
are
helpful.
Ms
Winterton:
The content of the amendments is quite familiar
and looks remarkably like the provisions that apply to the making of an
order for aftercare under supervision, which is what the hon. Gentleman
said. However, those are the very provisions that we want to repeal,
because they are ineffective and have not been used. One of the reasons
is that they are excessively bureaucratic, although they were a good
attempt. At the time—I think it was 1995—the previous
Government felt that a form of aftercare in the community was needed.
The principle that the Opposition are signed up to is there, but
unfortunately the form of the measure is such that, because of
bureaucracy, it has rarely been used. Despite the fact that the
Conservative party, at that time in Government, felt that it was
basically the right approach, I think that everybody would admit that
the difficulty has been the bureaucracy involved, which is repeated in
the amendment.
I
reassure Opposition Members that that does not mean that we regard
consultation with the patient and/or parties with an interest in their
care as unimportant. I believe firmly that, without proper
consultation, supervised community treatment will not work, because
patients will be unlikely to engage with it. We must recognise that
consultation with nearest relatives and carers is
important.
In
the rare cases in which the responsible clinician is considering SCT
for a child patient, persons with parental responsibility will be
involved. That is obvious, but we do not think that the right approach
is to put very prescriptive requirements into the Bill. Rather, we want
that kind of patient and carer involvement to be seen as far as
possible as routine good practice integral to the operation of the Act,
an idea reinforced by the good work that we did with the Opposition on
clause 10, which contains some of the issues that we expect to be part
of the principles of the
Bill.
The second part
of amendment No. 6 deals with the provision of information to patients
and others. The Government do not believe that it is necessary, because
the Bill already contains provisions that will have almost the same
effect. Paragraph 30 of schedule 3 will insert a new section into the
Act concerning hospital managers’ duties to give information to
community patients. It will impose a duty to give information both
orally and in writing about the Act’s provisions for community
patients and the patient’s right to apply to a tribunal. That
information must be copied to the nearest relative unless the patient
requests otherwise. The amendment would not allow the patient scope to
request that his nearest relative should not be consulted. That might
be an oversight, given that it is a quite reasonable wish for a patient
to have.
In the
light of those points, I hope that hon. Members will be reassured by
what I have said and withdraw their
amendments.
Tim
Loughton:
Well, I have not been enormously reassured by
the Minister during this Committee, but in this case she is
right.
Lord
Commissioner of Her Majesty's Treasury (Claire Ward):
As
always.
Tim
Loughton:
She is not right always. She is right in
defining what we are trying to do. She referred to the conditions in
schedule 3. Again, we will want to see evidence that they will apply in
reality, but because we want to move to the next batch of amendments, I
beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Ms
Winterton:
I beg to move amendment No. 23, in
clause 32, page 20, line 40, leave
out from beginning to end of line 17 on page 21 and
insert—
‘(b) it is necessary
for his health or safety or for the protection of other persons that he
should receive such
treatment;
(c) subject to his
being liable to be recalled as mentioned in paragraph (d) below, such
treatment can be provided without his continuing to be detained in a
hospital;
(d) it is necessary
for his health or safety or for the protection of other persons that he
should be liable to be recalled to hospital for medical
treatment;’.
The
Chairman:
With this it will be convenient to discuss the
following: Government amendments No.
29.
Government
amendments Nos. 34 to
39.
Government
amendments Nos. 31 and 32.
Government new clause
12—Repeal of provisions for after-care under
supervision.
Government
new clause 13—Commencement of section [Repeal of provisions
for after-care under
supervision].
Ms
Winterton:
In view of your ruling, Lady Winterton,
I should like to make a few general comments about supervised community
treatment. I know that the issue has given rise to a huge amount of
comment. Many people have created unnecessary fear among patients and
the public by talking about large numbers of people being forcibly
detained in their homes and subject to curfews. They refer to community
treatment orders as psychiatric antisocial behaviour orders. That has
caused a lot of fear among a number of patients. I am sorry that that
has happened. I hope to use the debate to reassure them about what we
are trying to achieve with supervised community
treatment.
James
Duddridge: I cannot find a more generous word than timely
to describe the way that the Minister stumbled over community treatment
orders and supervised community treatment. The point of my intervention
was to find out the difference between a community treatment order and
a supervised community treatment.
Ms
Winterton:
Supervised community treatment is the general
term A community treatment order is what is given to the
patient.
As I have
said, in 1995, the Opposition tried to introduce a form of supervised
aftercare. I suspect that they had seen the problems that patients
experienced after they had been discharged from hospital.
Unfortunately, parents, carers and others would often have to stand by
and watch as the patient deteriorated to such an extent that they had
to go back in hospital for another detention. That could happen time
after time. It often happened because people had failed to take
medication and to stay in touch with health care
professionals.
It is
important to recognise that professionals regard the SCT as an
important new way to balance patients’ interests with patient
and public protection. Quite frankly, those views are not always given
the weight that they deserve. As I have said, we must reflect the views
of the many families and carers who are trying to look after people
with mental health problems. For them, the cases are great personal
tragedies. Many of them believe that the treatment is a welcome new way
to protect patients and the public. The provision is not a device to
subject more people to control on the cheap. It is a measure to enable
patients to receive treatment under formal supervision without always
having to be in a hospital setting, which is not necessarily the best
place for an individual to make a
recovery.
If we were
the first Government to propose the use of community treatment orders,
we could understand
the doubters. However, as hon. Members know, we are not the first
Government. CTOs have been operating in some areas for more than 20
years. They are very well established across the USA, Canada,
Australia, New Zealand and Israel. Since October 2005, they have
operated in Scotland. No country in which CTOs have been established
has ceased to use them. On the contrary, CTOs are seen as the modern
workable way to manage mental disorder in a community
setting. When we
started down this path, we were going to adopt the same approach as in
Scotland where there has to be no previous detention in hospital before
a community treatment order can be given to an individual. We received
a lot of criticism for that. We reacted by saying, “If there is
a strong feeling about having community treatment orders without having
a previous detention in hospital, detention in hospital must precede a
community treatment order.” We have already moved a long way in
our approach.
It is
also important to remember that, in many countries, psychiatrists and
patients were found to be in favour of CTOs. In New York, three
quarters of the patients interviewed in one study felt that CTOs helped
them to get and stay well, and gain control of their lives, without
being in a restricted hospital setting, but in the community with their
families and loved ones. The ability to get and stay well was an
important part of
that.
3.15
pm
Mr.
Boswell:
If that approach is to be implemented under the
Bill, does the Minister accept that the decisions should be essentially
clinical decisions and in the best interests of the patient? While, of
course, scores should be kept properly for monitoring purposes, will
she therefore say on behalf of the Government that there will be no
attempt whatever to flaunt the number of CTOs in place as a political
argument about how the nation is safer or, indeed, how individuals are
safer because of that miraculous event? It should be treated as a
professional and clinical matter on its
merits.
Ms
Winterton:
We are under quite a lot of pressure
from the Opposition to say that we shall be monitoring CTOs, so it is
important that we do that. I suspect that people will want to see the
information that flows from that monitoring. It is a matter of getting
the balance right because there has been pressure to make sure that we
monitor the situation, particularly the number of CTOs that are used,
to reassure people that they are not generally
overused.
Dr.
Iddon:
One of the criticisms of CTOs that I am picking up
is that the Government might not make the resources available.
Obviously, there will have to be more intensive monitoring of CTOs than
of other community treatments. What does my right hon. Friend have to
say to those who make that
criticism?
Ms
Winterton:
It will be the clinician who decides whether
such treatment is the appropriate course of action for an individual
patient. The hon. Member for Daventry said that it was important that
the decision was clinical. That is exactly why we are opposing the
changes proposed by the Opposition. They would put unnecessary
restrictions on the clinician’s ability to decide whether the
treatment was right for the individual
patient.
The
clinician cannot decide that a CTO could be given, if the appropriate
treatment were not available. If one of the conditions was that a
person was to be visited by a community team and the community team was
not there, it would not be appropriate for a CTO to be given to the
individual.
Mr.
Boswell:
The Minister is trespassing into the area that
was giving rise to some concern on my part. Either we continue with
compulsory detention or we have a supervised community treatment order
or another form of order, or we simply discharge the patient. The
principles on the fact that we should minimise the restrictions on
liberty are set out in respect of the code in clause 10. Will the right
hon. Lady at least accept that I am feeling after the concern that she
might argue that there has to be continuing detention and not
caricature my argument as being about whether there should be
supervised community treatment or something else, as if that will in
some way restrict the operation of clinicians? I am broadly on the side
of freedom as far as is possible, and I would like the law to support
that—I do not regard it as inhibitory to clinical judgments.
Does the Minister understand that there are some political
sensitivities on the issue? By that I do not mean party political
sensitivities.
Ms
Winterton:
The hon. Gentleman is right that we should take
the least restrictive approach. That is the reason why the Government
feel that CTOs play an important part. We are talking about the ability
of a clinician to make a judgment on an individual patient. To use an
example that some of us have come across in our constituencies, the
clinician may well know that if a patient continues to take medication,
they will likely stay well. If not, they will likely become ill. Often,
the result is that a patient ends up being taken back into detention,
which we are trying to avoid. It is about striking a balance between
continuing detention and creating a less restrictive environment by
enabling a patient to return to their home to the care of their loved
ones. Also, I believe that putting people in a loving environment
rather than a hospital helps them to
recover.
Dr.
Ian Gibson (Norwich, North) (Lab): I do not want to miss
the opportunity to talk about other countries, to which the Minister
referred. The King’s Fund, for which I have a lot of time and
with which I work, as I am sure many others do, has produced reports
about what has happened in other countries. Does the Minister accept
those reports or worry about them? Do the number of compulsory orders
grow over the years? It is too early to make a long-term analysis of
the situation in Scotland. In New Zealand, there is a slight growth.
Does she fear that and does she believe it to be an accurate
assessment?
Ms
Winterton:
My hon. Friend is right. The King’s Fund
has been generally supportive of the proposals. I talked to it recently
about some of these issues, and I will do so again. I was interested in
what it had to say
about SCT. We need to bear it in mind that SCT has to be right for an
individual. In some countries, there is almost no detention in hospital
settings, but there are many community treatment orders. We have to
accept that if the resources going into health services increase, the
number of people being treated might also increase. That is about
taking treatment to people.
The principle of the measure
is that it is about ensuring that people can receive the treatment that
they need. It would be advantageous if that treatment could be given in
a community setting as opposed to hospital.
I am not saying that
there are not wildly different views about supervised community
treatment. Different people within the King’s Fund might well
have different views about it. We have to ensure that we are weighing
the advantages and disadvantages.
Tim
Loughton:
Before the Minister prays in aid various groups
that do not actually make her case, I should say that if she had come
to the witness session to which Simon Lawton-Smith of the King’s
Fund gave evidence, she would know otherwise. Let me quote from the
King’s Fund’s
conclusion:
“Homicides
by people with a mental illness are unusual and relatively few in
number. Many are committed by people who had not previously been in
contact with services or had last been assessed as at low risk. It
should therefore not be expected
that”
supervised
community
treatment
“will
significantly impact on the total number of these incidents. There has
been no discernable reduction in the overall rates of homicides by
people with a mental illness in Canada, Australia or New Zealand as a
result of CTOs having been in place in those countries for some
years.”
That is not
supportive.
Ms
Winterton:
We can carry on quoting the King’s Fund
backwards and forwards. The King’s Fund’s report
certainly warns of risks, such as availability of resources and
effectiveness of sanctions, but it also says, in the evidence so far
available from Scotland, where CTOs have been operational since 2005,
that they are proving successful, but concludes that if
benefits,
“such as
positive clinical...outcomes for patients, a reduced risk to the
public”
become evident,
SCT
“is likely to become
an accepted part of the range of options for the treatment of mental
illness”.
We need to
look at where this provision already exists in other countries. We have
to ask ourselves whether we believe that it is the right approach. The
Opposition in 1995 tried to introduce a similar
proposal—supervised aftercare—which was a worthy attempt
to recognise that this approach was the way forward. As Members of
Parliament, we must all have experience of people coming to our
surgeries or writing to us about their problems owing to their son,
daughter, or whatever, not sticking to medication or not staying in
touch with health care professionals. However, at the moment such
people have to wait until the person involved becomes sufficiently ill
again, so that they are either a danger to themselves or others, before
they can be taken back into hospital.
The provision is simply a way
of giving clinicians the ability to say to a patient, “We
believe that if you continue to take medication you are likely to stay
well. If you stay in touch with health professionals, you are likely to
stay well.” I should also emphasise, because this is an
important part of what we are saying about supervised community
treatment, that it is not about imposing a set of instructions and
conditions upon an
individual.
Ms
Winterton:
Perhaps the Committee needs some assurance on
the point. The way that a community treatment order would work is as
follows. The individual would need to accept the conditions on which
the CTO was being given and be given a written copy of those. The
conditions would have to be agreed by an approved mental health
professional, because if an individual did not accept the conditions of
the CTO, it would not work so there would be no point giving it in the
first place. This is not about saying, “This is what you are
going to do”, with the person sitting there saying, “I
don’t accept any of that”, because a CTO will not be
given if the individual does not accept the conditions.
I should also say, for
example, that if an individual did not stick to the conditions, it
would not automatically mean that they would be recalled to hospital.
It is up to the clinician to decide whether it is
appropriate—whether it is because the person has become a risk
to themselves or others—for them, at that point, to be recalled
to hospital. This is not the imposing, non-involvement approach that
people have sometimes feared it would be. It is much more about sitting
down with the patient and explaining the conditions, then the patient
accepting the conditions, which will be looked at by an AMHP. If the
conditions are broken in some sense, it would not automatically follow
that the individual was recalled to hospital if that was not
appropriate. As always, the clinician makes the decision on what is
right for the patient.
3.30
pm
Dr.
Pugh:
The hon. Member for East Worthing and
Shoreham suggested that a barometer of success might be to look for any
reduction in the number of homicides. That figure clearly has not moved
a great deal when CTOs have been introduced. Is not a proper indicator
of the success of CTOs the extent to which there is a reduction in the
number of people who are sectioned without any increase in the total
number of people who are held under coercive regimes? Would not that be
a fair assessment as well as possibly a more accurate
one?
Ms
Winterton:
There is a whole range of factors, which is why
we want to monitor the issues carefully. It is important to be clear
that there have been inquiries that have recommended the use of CTOs.
The John Barrett inquiry is an example. The report on that inquiry
said:
“In our
view, the only means of securing John Barrett’s compliance with
treatment as an out-patient would have been a community treatment
order, which is not available under the Mental Health
Act.”
It
is important to recognise that that recommendation was made, and to
recognise that if CTOs can achieve, for example, greater compliance
with medication and greater contact with health care professionals,
there would be a reduction in requirements relating to the sort of
person who is continually in and out of detention. We should consider
all the factors that people want to have
considered.
I shall
address in due course why we should reverse the amendments that the
Opposition have supported. The restrictions have big
implications—particularly for potentially suicidal or
self-harming patients.
Dr.
Pugh:
The Government expect that, five or 10
years down the line, we shall see a reduction in people being
sectioned—all things being equal—rather than an increase
in the total number of people under coercive
measures.
Ms
Winterton:
We need to look at the whole range of measures.
I cannot make a prediction; that is why we are monitoring things. We
all know the objective. There are people who, on discharge from
hospital, do not take their medication or stay in touch with health
care professionals, and who become very ill. At the moment, there is
nothing that their carers and families can do to ensure compliance, and
the Government proposal would be a way to achieve that. Given that many
other countries have such measures, and that they reflect the modern
provision of community services, it is important to support
them.
The
Government’s first argument is that the concept was introduced
in 1995 in another form. The second derives from the Opposition
position that they support the concept in relation to people who are a
risk to others but not those who are a risk to themselves. That means
that they do not rule it out completely—and presumably neither
does the hon. Member for Southport. The Opposition are therefore merely
trying to limit the application of the concept, and we disagree because
we think that there are real problems with
that.
Angela
Browning:
The Minister is being incredibly optimistic
about the level of resources in the community that are available to
make the policy effective. In my experience, most people who have had a
period of in-patient treatment and then come out into the community do
not fail themselves to contact the community services, it is the
community services that fail them. There are simply not sufficient
resources. When we talk about treatment, medication of course is at its
heart, but that is not the only form of treatment. Across the country,
particularly in rural areas, those resources are just not there. The
Government have brought nothing forward in the Bill that reassures me
that back-up services will be there to support people who might be
subject to such a treatment
order.
Ms
Winterton:
First of all, 700 new community teams are now
available to support patients—a massive change since the
national service framework was introduced. I am surprised that the hon.
Lady did not mention that change, given that the other day she was
talking about services developing in her constituency. The Opposition
need to remember that, with community teams and crisis resolution
teams, we are trying to expand the role of other professionals. The
Opposition opposed that
approach. She cannot have it all ways. The
Opposition tabled an amendment that would delete clause 11 and the role
of the responsible clinician. We are saying that community treatment
has to be available. I am surprised, however, that hon. Members do not
recognise that very often the issue is not that the treatment is not
available, but that the individual does not turn up for a depot
injection, for example. That very often happens, and it is the sort of
issue that we are trying to
overcome.
I do not
think that we have ever claimed that supervised community treatment has
all the answers. It is not a magic cure, but it reflects how modern
services are delivered. It is available in many other countries, but at
the moment it is not at the disposal of clinicians. We need to
emphasise that point. We are saying not that clinicians have to do
this, but that it is available to them if they feel that it is the
right thing to
do.
As
to why we wish to reverse the amendments made in the other place, I am
afraid that they would result in a limited, stigmatising and, frankly,
non-viable regime for a few patients judged to be a risk to others. The
amendments would provide no real protection for patients at risk of
suicide or self-harm in the community. I find it difficult to
understand why the Opposition parties would wish to deny the
possibility of having supervised community treatment to suicidal
patients, while insisting that patients have to be hospitalised twice
before such treatment is an
option.
Tim
Loughton:
What is the Minister’s evidence that
supervised community treatment orders would have any impact whatever on
suicide
rates?
Ms
Winterton:
The report produced by the national inquiry
into suicide and homicide among people with mental illness showed the
potential for prevention. Let us remember that 1,300 suicides a year
are carried out by people who have been in touch with mental health
services. The report showed that 56 people in the last year had
committed suicide following non-compliance with medication or loss of
contact with services. Those suicides did not occur in the immediate
period of discharge from hospital, when medication would often still be
in the system, but in the two weeks after that. Of course that does not
mean that the suicides would necessarily have been prevented, but there
is the potential. I find it extraordinary that the hon. Gentleman feels
that it is appropriate to say to a mother, for example, whose son has
been terribly ill and who wishes him to be discharged into her care,
“If your son were a danger to you, we could put him on
supervised community treatment, but because he is a danger to himself,
we can’t.” That is a very difficult proposition, but it
is exactly what the amendments’ effect would
be.
Tim
Loughton
indicated
dissent.
Ms
Winterton:
The hon. Gentleman shakes his head, but in the
House of Lords, the Bill was changed to restrict supervised community
treatment to those who are a danger to others and not to allow it for
those who are a danger to themselves—those who self-harm or are
suicidal. I cannot see the logical reason for differentiating the two,
and I do not understand why he was shaking his head to indicate that
that is not what is happening.
Tim
Loughton:
By the Minister’s own logic, the
clinician would still be able to apply a supervised community treatment
order to a suicidal patient, whether or not that is defined in the
Bill. That is the point. What is the problem? The suicide rate that she
is always going on about has been falling as well. I repeat my
question: what is the evidence—rather than theory or
potential—that the suicide of any of those 56 people in the UK
would have been prevented? Where is the evidence from any one of the
six other countries using supervised community treatment orders that
they lead to a reduction in suicide rates? There is no evidence, and
she should admit
that.
Ms
Winterton:
This is curious. As I understand it, the
Opposition’s policy, if they ever get into government, is to
support the suicide prevention strategy. Part of that strategy is to
introduce supervised community treatment for patients who are a danger
to themselves and are likely to be suicidal. The hon. Gentleman says
that he supports the strategy, but part of the strategy is to introduce
SCT to ensure that we can offer that kind of support in the community.
I still do not know why he is saying that it would be possible for a
person who was potentially suicidal after not taking their medication
to be given a CTO when the amendments that he supports say specifically
that it could be given only to somebody who is a danger to
others.
Tim
Loughton:
In the spirit of compromise, if I undertake that
the Opposition will submit an amendment on Report that will include
those who are of harm to themselves, will the Minister agree to keep
the Lords amendment, with that additional criterion, as part of the
Bill?
Ms
Winterton:
I simply do not understand how we could have
one amendment that says that the treatment is restricted to people who
are a danger to
others—
Tim
Loughton:
And
themselves.
Ms
Winterton:
But that is what we are doing by reversing the
amendments from the House of Lords—going back to the original
position of supervised community treatment.
Tim
Loughton:
No, you are
not.
Ms
Winterton:
It is like Alice in Wonderland. We are
reversing the amendments in order to go back to the original
position—that supervised community treatment can be made
available to people who are a danger to themselves or to others, and
that it should not be restricted to those who have been detained twice.
I shall give the reason. There may well be people who have a history of
voluntary admission into hospital and of relapse during that time as a
result of not taking medication. A clinician should not have to say,
“Your son has a long history of going into hospital, not taking
medication, not staying in touch with health care professionals, going
back into hospital and coming out again. He has done it 10 times
voluntarily, but because he has been detained only once, we
can’t offer you supervised community treatment.” That
could make somebody go through the
whole process of non-compliance, relapse, crisis and coming back in, at
which point they could be offered supervised community treatment.
Frankly, we believe that that is wrong and goes against what the hon.
Member for Daventry said about the clinician’s
discretion.
3.45
pm
Dr.
Doug Naysmith (Bristol, North-West) (Lab/Co-op): I wonder
whether my right hon. Friend agrees with my view. I simply cannot
understand why the Opposition are trying to be so restrictive of the
introduction of community treatment orders. The submission of the
King’s Fund to the Committee, about which we have already heard,
asks this
question:
“What
do clinicians and patient groups say about
SCT?”
It goes on to
answer that question, interestingly pointing to the report that the
Royal College of Psychiatrists has given us, and
stating:
“Clinicians
are divided over the introduction of SCT. In one study involving more
than 1,000 consultant psychiatrists in England and Wales, 46 per cent.
favoured compulsory treatment in the community while 34 per cent. were
opposed to it”.
That
means that there is division among clinicians about whether such
treatment is useful. Why do we wish in this instance to restrict
clinical judgment, about which the Opposition have been very strong in
the Committee? Does my right hon. Friend
agree?
Ms
Winterton:
I certainly agree with my hon. Friend,
particularly on not trying to restrict clinical judgment. We must
recognise the extent to which we have moved on the use of supervised
community treatment from the Scottish position whereby it can apply to
anybody in the community without their having had a period in a
hospital.
Sandra
Gidley:
I understand the Minister’s point about
clinical freedom, but what evidence does she have that the average
psychiatrist or clinician will be able to predict accurately which
patients will be back in the hospital and which will not? Is there not
a danger that the orders will be used widely to try to prevent
litigation because somebody has not been prevented from
harm?
Ms
Winterton:
The hon. Lady needs to recognise that there are
strict criteria that have to be met for a supervised community
treatment order to be appropriate, as there are for being detained in
hospital. Decisions can be appealed against either by application to
hospital managers or, in some cases, at mental health review tribunals.
The matter is about trusting clinicians’ ability to make the
right decision and giving them the power, if they wish to use it and if
it is right for an individual patient. We need to be clear about the
safeguards that are in
place.
Perhaps
one thing that the Opposition are concerned about is the ability to
engage the patient in accepting conditions. I assure the Committee that
we will ensure that guidance in the codes of practice for England and
for Wales will cover that issue as well as other key issues such as the
duties of professionals under human rights law. I therefore hope that
hon. Members will support the Government in restoring the position
whereby supervised community treatment will not just
be restricted to those who are a danger to others, and whereby those who
are a danger to themselves will also benefit from them and get the
treatment that they often desperately need.
I hope that
hon. Members will support the fact that professionals spend a lot of
time examining a patient’s history and talking to their families
and carers, who know their circumstances. As Members of Parliament, we
also know that there are circumstances in which people come back and
say, “He has stopped taking medication again. We want him to
take medication, but cannot do anything unless he becomes so ill again
that he has to be detained in hospital.” Those are situations
that we, as Members of Parliament, come across every week. We should
recognise that, remove the Opposition’s restrictions and support
the Government amendments.
Tim
Loughton:
The Minister did not want to respond to any of
the interventions that she so generously took, in which she was asked
whether her proposals were based on any research or empirical evidence
on the impact that CTOs may have on homicide, suicide and hospital
readmission rates. If the Government are trying to propose such a
radical, powerful new addition to mental health legislation, it is
absolutely essential that they have the evidence on which to base their
proposals.
Not once has
the Minister produced any evidence to prove that community treatment
orders are necessary. We know that that is because there is not any
evidence. We know that the Government tried to find some evidence. We
know that last January the Government commissioned the Institute of
Psychiatry to engage in the most far-reaching research project on the
international experience of community treatment orders in those
jurisdictions that have experience of them. The report was delivered to
the Government last August. The Government were not happy with its
conclusions so they told the institute to go away and think again. The
authors did and, not surprisingly, there was little change to the
proposals. The Government then decided to sit on the
report.
Despite
all the pleadings by the Government that it was down to peer reviews
and various other things, and after the Government completely sidelined
any freedom of information requests, they published, under duress,
their report on the international effectiveness of community treatment
orders the day after the House of Lords finished their deliberations on
the Bill. It was a shameful suppression of key evidence that was
absolutely integral to this important piece of
legislation.
Dr.
Naysmith:
I have very carefully read the report that the h
G is talking about. There is not a shred of evidence that CTOs do any
harm either.
Tim
Loughton:
We are going to do negatives then, are we?
Simply because a piece of legislation does not do any harm, it can be
introduced.
Dr.
Naysmith:
That is not quite what I
said.
Tim
Loughton:
The Government’s prognosis for
such wide-ranging supervised community treatment orders is that they
will be a solution. As the Minister said, it
will not be the whole solution, but it will be part of a solution to the
problem. The orders are being introduced not because they will not do
any harm, but because they will help to solve a problem that we know
exists.
Dr.
Naysmith:
I said that on the one hand there was no great
evidence that CTOs were useful and did good, and on the other hand that
there was no evidence that they did harm. As someone who has spent most
of their life involved in scientific and medical research, it is not
unusual to come across that situation. Then one has to say, “The
evidence is not very good, we need to do some more research. We need to
carry on trying it out.” Since it has already been tried out in
20 other countries, why should we deny the use of this tool to our
clinicians?
Tim
Loughton:
I am sure that, as a scientist, the hon.
Gentleman will agree that scientists do not inflict something on
patients, for example, if they are investigating or researching a drug,
until they know not only that it will do no harm but that it will do
some good—unless he is in the business of thrusting placebos on
everyone he comes across. That is an extraordinary
admission.
I go back
to the research. The most comprehensive research on the international
experience of community treatment orders comprised 72 database
empirical studies that were undertaken in six countries. The report
stated:
“It is
not possible to state whether community treatments orders...are
beneficial or harmful to patients...Overall, although some
stakeholder views are positive, there is currently no robust evidence
about either the positive or negative effects of CTOs on key outcomes,
including hospital readmission, length of hospital stay, improved
medication compliance, or patients’ quality of
life.”
So, based on no
positive, empirical evidence that they work, we in this country will,
under the Bill, impose the most coercive form of community treatment
orders in
existence.
Sandra
Gidley:
The hon. Gentleman will have noticed how the
Minister was quoting rather selectively from the report when referring
to the USA and lauding CTOs. However, the executive summary
states:
“The
perceptions of CTOs held by different stakeholders were reported in 18
studies and were very mixed, with both positive and negative views
expressed.”
Even when it
comes something as relaxed as patient satisfaction, the jury is still
out.
The
Chairman:
Order. Before I call Mr. Loughton, I
wish to make an appeal. If there are any future interventions, will
they be brief? We seem not to be making as much progress as we might
otherwise have
done.
Tim
Loughton:
It is not through lack of trying on our part,
Lady Winterton. We are keen to get to the guts of the
matter.
The hon. Lady
is absolutely right. Yet again, the Minister quoted selectively. She
cited the example of New York, which has a different form of community
treatment order. It is far less restrictive and wide ranging than the
ones which, without empirical evidence for their efficacy, she is
trying to impose on the
Bill.
Let
us be clear from the start. We do not oppose community treatment orders
per se. That is why the amendments that were tabled in the other place
allow their use in certain closely defined circumstances for closely
defined sets of patients. That was exactly the conclusion that the
pre-legislative scrutiny Committee came up with. For people with
closely defined circumstances, we feel that there may be some merit in
them and it is at least worth seeing whether they
work.
However,
the Government are proposing a much more wide-ranging net that could
scoop up many more people. It could be counter-productive, too. What
has been most distasteful in the debate on community treatment orders
over several months is that CTOs have been put forward against a
backdrop of hyping up the dangerousness of people with a mental
illness, for which the Government have been shamefully irresponsible.
They have quoted all sorts of figures, put out all sorts of press
releases and had all sorts of media splurges in tabloid newspapers to
suggest that people with a mental illness are automatically dangerous.
Their figures do not justify that. The figures from the Home Office
show that, in the 1980s, there was no appreciable rise in
homicides by people with a mental
illness.
As for the
past 10 years, in 1997 there were 39 homicides by someone who had a
mental illness. That represented 6.4 per cent. of homicides overall. In
2005, that figure had fallen to 30. It was still 30 too many, but it
was 30 out of 820. The homicide rate has gone up substantially under
the Government, but that figure represented 3.7 per cent. of all
homicides. Yet the Government would have us believe that there is a
much heightened risk of homicide by someone with a mental illness. Many
other classes of people who commit homicide are far more dangerous. It
is the most deeply stigmatising thing that the Government could have
done to people who have an illness that happens to be a mental illness.
They should be ashamed of
themselves.
4
pm
Meg
Hillier (Hackney, South and Shoreditch) (Lab/Co-op): I
think it is shameful that the hon. Gentleman brings that up in that
way. My point is that under extended leave under section 3 and
detention under section 2 of the Mental Health Act 1983 many people are
effectively on community treatment orders anyway. The effect of the
Lords amendment would be to restrict current practice. Does he
agree?
Tim
Loughton:
No. The 1995 amendments to the 1983 Act on
supervised discharge were not nearly as coercive and restrictive as
what is now proposed by the Government. That was a good attempt to
address the problem of revolving door patients. What the Lords
amendments are specifically seeking to do is on the recommendation of
the pre-legislative scrutiny Committee and the vast majority of members
of the Mental Health Alliance. Let me read some of the comments that we
have had on the use of community treatment orders.
The Law Society, for example,
says that the amendments should be supported, because they
are
“based on existing
eligibility criteria that are used for CTOs in New South
Wales”.
They are based
on experience. It went
on:
“The
overall effect of the House of Lords amendments would be to prevent
CTOs from being overused as a substitute for hospital inpatient
treatment”.
They
raise
“the alarming
possibility of CTOs being used as psychiatric
ASBOs.”
Those are not
our alarmist words but the words of the Law
Society.
Mind
says:
“If
there is one measure in the Bill that alarms service users it is CTOs.
Service users fear that they will be over-used; make it more difficult
to manage the often severe side effects of medication; be used
disproportionately on members of BME communities; be unworkable in
rural areas; be harmful to therapeutic relationships; and divert
resources away from services....CTOs will not protect the health and
safety of the patients or
others”.
That is not us,
not politicians, but
Mind.
The British
Association of Social Workers
says:
“The
Regulatory Impact Assessment also assumes that the government’s
version of the CTO will result in a significant reduction in bed usage.
It would appear, therefore, that the government views CTOs as a way by
which patients generally, not just the ‘revolving door’
group, can be discharged part-way through their treatment when they are
still not well enough to accept after-care voluntarily. This is a
policy designed to save money, not to protect the
public”.
Meg
Hillier:
Will the hon. Gentleman give
way?
Tim
Loughton:
One moment. The BME network talks
of
“the likelihood of
racialised perceptions leading to the application
of”
supervised community
treatment
“on BME people
where clinicians feel the individual does not merit
detention”
being a
particular worry. It
says:
“By
virtue of extending compulsory powers under the amended Act, with the
absence of robust antidiscrimination mechanisms, this is effectively an
extending of the factors currently leading to disproportionate
sectioning.”
Perhaps
the hon. Member for Hackney, South and Shoreditch would like to comment
on
that?
Meg
Hillier:
I repeat my point to the hon. Gentleman, because
I think he misunderstood me. I have spoken to clinicians and heard
different views. There is about a 50:50 split in the Royal College of
Psychiatrists. We had the figures from my hon. Friend the Member for
Bristol, North-West earlier. Current practice is that on extended leave
people are released for community treatment. One consultant
psychiatrist said to me that removing the words “requiring
hospital treatment” from the current Act would effectively give
us community treatment orders. The hon. Gentleman
is deliberately hyping this for his own purposes, but clinicians have
told me that we already have current practice and patients have told me
that they are not all necessarily against
CTOs.
Tim
Loughton:
Under the 1995 terms, where can the hon. Lady
point to the extensive restrictions on movement, behaviour and other
attitudes of a patient? They were not included. We are now looking at a
different beast altogether. That is the point, and it is what everybody
outside and service users fear
most.
The
Children’s Commissioner for England is not a fanatic: he is
appointed by the Government and we generally agree that he has done
some good work, yet he has stated that the CTO
provisions
“are complex,
cumbersome and
confusing.”
The
commissioner went on to
say:
“There is
insufficient guidance in the Draft Illustrative Code on the Mental
Health Act 1983 (‘the draft Code’) on how these
provisions are intended to
work.”
He also believes
that
“there are
insufficient safeguards for treatment without consent”.
The National
Perceptions Forum
states:
“There
is strong evidence that CTOs are not necessary,
appropriate, or therapeutic—they may instead
be counterproductive and unworkable. They may drive some people away
from services and cause suicides. They contradict this
government’s choice in the health service policy—it is
supposed to be for all, but
excludes”
—excludes—
“mental
health patients.”
The
National Perceptions Forum submission also states that
“some people will end up on
long-term compulsory medication with dreadful side-effects, including
causing life-threatening illnesses, including in young people...
Someone could be required to live in a badly run and uncaring
hostel/home and suffer in silence, or someone could be required to
attend a day centre where there are other people he/she just
doesn’t get on with...It is very likely to be the case that
some people may find their lives made so miserable by CTOs they could
go underground or commit
suicide.”
Those are not
our words; they are the words of mental health charities and service
providers whose members and patients have real fears about the effects
of CTOs.
Let us look
at some of the fallacies that the Government have insisted on
circulating to support CTOs. There is no evidence to support the
proposal that people will be prevented from committing suicide by CTOs.
There is no international evidence and none from the confidential
inquiry—it is an entirely theoretical argument.
Another fallacy is that CTOs
will prevent patients from being re-hospitalised. In Scotland, where
CTOs are different from here—many would accept the forms of CTO
that apply in Scotland—the experience is that between 10 and 20
people are re-hospitalised each quarter out of a total of some 300.
There is no power to ensure that a patient abstains from a particular
conduct in Scotland, yet the Government are keen to impose such
provision here. When we look at the Government’s calculations of
how CTOs will work here in comparison with Scotland, we can see that
they assume that, in the first year, 2 per cent. of detained section 3
patients in England and Wales might be discharged on to a CTO. However,
if the experience of Scotland is replicated, where in the first six
months 23 per cent. of all hospital-based orders were varied
from patient discharge to CTO, that assumption will be a significant
underestimate.
The
Government estimate that any one patient is expected to spend nine
months on a CTO, which is significantly longer than the average length
of time—109 days or three and a half months—for which
patients are treated in hospital. Thus at any one time there are likely
to be more patients subject to a CTO and detention in hospital than are
currently subject only to detention in hospital. Compulsory treatment
will take longer and bed numbers will be limited. So the
Government’s own calculations on how many people will be
affected, as well as on cost and resource implications, fly in the face
of the experiences of Scotland and other parts of the world.
There is yet another fallacy.
The Government believe that CTOs would not skew resources within mental
health services, which, as we know, are in any case hard pressed.
However, there will have to be a concentration of staff and resources
on CTO patients, which will mean less time and resources for voluntary
patients.
There is
also a perverse incentive. The blame culture in which mental health
professionals work creates an incentive for those seeking to cover
their backs to use extra coercive powers even though that might not be
necessary or desirable. If a patient who is released from a secure
hospital and not put on a community treatment order turns out to be one of
the small number who subsequently do harm to themselves or someone
else, the flak will come back to the professional concerned. A question
will be asked as to why they did not insist on a supervised CTO being
attached as a condition of release.
Another consideration is how
long CTOs will last, and it has been defined by Professor Genevra
Richardson as the lobster pot scenario. I shall try to introduce
amendments that would impose time limits, because under the
Government’s legislation, a CTO might be renewed again and
again. CTOs are easy to get into and difficult to get out of. The
experience in Scotland is that more people are coming on to CTOs than
are coming off them.
Overall, we
therefore feel that the case for widespread use of supervised community
treatment orders has not been made, and that the Government’s
own research does not support their aim. That is why after much
deliberation in the House of Lords, a very sensible amendment was made
to ensure that only a closely defined set of revolving door
patients—those about whom the Minister is most
concerned—should be covered by supervised CTOs. That approach is
perfectly reasonable. It met widespread support from most if not all of
the parties in the House of Lords, including from some Labour peers, it
has the approbation of the vast majority of Mental Health Alliance
members and it gives assurance to service
users.
If the
legislation is enacted in the form that the Minister wants, service
users will be deterred from presenting for treatment in the first
place. People with mental illnesses will be driven under the clinical
radar, and potentially the most dangerous such people are those who do
not present and whose condition festers without proper medical
treatment. That is what the Minister risks creating, and that would be
the counter-productive effect of such legislation. Far from the
Opposition playing fast and loose with the safety of the public or of
individuals, which the Minister accuses us of, it is the Government
who, on the basis of unfounded evidence, could affect public
safety.
On the matter of risks
presented by people to themselves, the Minister failed to mention
that section 25A of the Mental Health Act refers expressly to
such people. They can therefore be supervised under that provision. The
extra coercion relates to the protection of
others.
Ms
Winterton:
The hon. Gentleman says that he will support
supervised community treatment for a certain group. The Government are
concerned that that position would in effect exclude suicidal patients
from obtaining treatment. He then points to another legislative
provision that he claims covers such people. Why does he want a
confusing scenario with two sets of approaches: one for people who are
a danger to others and one for those who are a danger to themselves? If
he is so unsupportive of the idea of getting help to people who are
suicidal, why did the previous Conservative Administration try to
introduce that concept into the 1983
Act?
Tim
Loughton:
That is a total caricature of our suggested
proposals and it is unhelpful to the debate. I have told the hon. Lady
why the House of Lords deemed that it was unnecessary to have an extra
safeguard for people who are at danger to themselves. The reason is
that it is dealt with by section 25A.
I have already offered, in the
light of this debate, to table on Report an amendment for the inclusion
of those who pose a risk to themselves in addition to those who pose a
risk to others. That should address any concerns that the Minister
retains. The caricature that the Opposition are in some way playing
fast and loose with the safety of the public and of individuals who are
at risk of suicide discredits the position that all of us in the
Committee are trying to take.
Ms
Winterton:
If the hon. Gentleman is proposing an amendment
whereby supervised community treatment covers people who are a danger
to themselves, for instance because they are suicidal or self-harming,
why is that different from the effect of reversing the position in the
Bill back to the original one, which covered such people as well as
people who are a danger to others? We want to revert to that position.
The hon. Gentleman seems to be saying that he will table an amendment,
but I do not understand why he is not supporting the
Government’s current
position.
Tim
Loughton:
The Minister is not listening. We support the
clause as it stands. I am offering to include in clause 32(5)(c), along
with
“it is necessary
for the protection of others from serious harm that he should receive
treatment”,
the
words,
“where it is of
significant harm to
himself”.
If the
Minister thinks that that reverts to the Government’s original
position, I am delighted. If that is so, we will have that amendment in
and the Government can get rid of the other amendments and agree with
our position. She does not seem to know what she is talking
about.
4.15
pm
I have tried
to make my case in the spirit of wanting to protect the public and
people who are at risk of harm to themselves, but I genuinely
believe—and this a belief shared by so many people in the mental
health world—that forcing through such coercive and wide-ranging
community treatment orders that have no parallel anywhere else in the
world, without any evidence for their efficacy, would make a
counter-productive measure that could lead to more people going
underground. That is not in their interests or those of the public at
large.
Mr.
Kidney:
We are debating the minority of patients who can,
even now, be subject to some restrictions when receiving treatment in
the community and would, under the Government’s proposals,
again, receive treatment under restrictions in the community. It is
worth reminding ourselves that the vast majority of patients who
receive services in the community do so
voluntarily.
My other
point is a legislative one. We are placing this provision in section 17
of the 1983 Act, which already, as my hon. Friend the Member for
Hackney, South and Shoreditch has tried twice to tell the hon. Member
for East Worthing and Shoreham, allows leave, including extended
indefinite leave, subject to any conditions at all that the supervising
clinician wants to impose, with no restrictions, as long as the
conditions are for the benefit of the patient or the protection of
other members of the public. It is worth mentioning that that has been
law since
1983.
Section 25,
which the Government are seeking to replace with CTOs, deals with
supervised discharge, which has been in place since 1995, under a
Conservative law. It is true that it was estimated in 1995 that about
3,000 patients a year would be under such compulsory supervision, but
in fact there are only hundreds each year. A study conducted in 2000,
reported in Psychiatric
Bulletin, volume 24, entitled
“Consultant psychiatrists’ experiences of using
supervised discharge: results of a national survey”, obtained a
100 per cent. response from psychiatrists using supervised discharge at
that time. In 77 per cent. of the cases in which supervision had been
in place for more than two months, the treating psychiatrist described
it as “helpful or very helpful”. Individual comments were
made that the conditions were too restrictive, but people wanted them
to be included in wider powers. It is worth bearing that in
mind.
I support CTOs
and the Government’s proposals, because the pool of those who
are potentially subject to CTOs are those who are already compulsorily
in hospital, so there is no question about people in the community
being picked on and having conditions imposed on them. Such people are
in hospital and the choice is whether they are treated in hospital or
out in the community. In respect of the least restrictive approach to
compulsory treatment, I agree with Dr. Angus Bell, in MH63,
who
says:
“Least
restrictive means in my view “at home” and not
unnecessarily in
hospital!”
I
want to draw Committee members’ attention to research by Gibbs
and Dawson in the Journal of Mental Health in 2005 in a study of
community
treatment orders in New Zealand, an area of
jurisdiction that has had this kind of law for 10 years, so it is
mature. That report
concluded: “The
usefulness of community treatment orders is accepted by most patients
under them in”
New
Zealand,
“as well as by
most psychiatrists. Critical factors include the quality of therapeutic
relationships and the structure provided for community mental health
care.”
People say that
there is no evidence because the Institute of Psychiatry tells us that,
so I looked for Gibbs and Dawson in the bibliography in the
institute’s report and found it—but it says, in a
footnote:
“This
paper published after completion of the searches for this
review.”
So there is
emerging evidence that CTOs can be beneficial. Of course we must be
cautious, because it is not yet clear what the evidence is telling us.
The last of the Government’s proposed conditions that can be
imposed on community treatment, the one about the person’s
behaviour, requires particularly careful
handling.
Mr.
Charles Walker (Broxbourne) (Con): First, may I take this
opportunity to apologise for my bad-tempered contribution last Tuesday?
It was discourteous to you, Lady Winterton, and particularly
discourteous to the Minister. I apologise for
that.
The
Chairman:
Order. Could I ask the Committee to listen to
the hon. Member who is speaking? There is far too much background noise
going
on.
Mr.
Walker:
Thank you for that protection, Lady
Winterton.
I should
like to quiz the Minister briefly on some numbers, and she may or may
not have time to respond. I read the briefing from the King’s
Fund and thought it well balanced. As we have ascertained, it examined
CTOs across international jurisdictions and pointed out that across the
71 jurisdictions, the number of CTOs per 100,000 people ranged between
two and 60, depending on where the threshold for compulsion
was set. It also examined Scotland, where the number seems to have
settled at about 5 per
100,000.
The
King’s Fund estimates that in England and Wales, if the Bill
becomes law as the Government intend, the number of CTOs will settle
somewhere between 7,800 and 15,000, which it points out is well above
the Government estimate of 1,450. If the figure does fall between 7,800
and 15,000, that is between 15 and 26 people per 100,000 who
will find themselves on CTOs, compared with the Government forecast of
nearer three per 100,000. In the few minutes left, I hope that the
Minister has time to put our minds at rest about why that discrepancy
will exist. Given the concern about the number of people who will be on
CTOs, will she keep a careful eye on their use to ensure that they are
not overused and that we are nearer three to five per 100,000 than the
20 to 25 per 100,000 estimated by the King’s
Fund?
Dr.
Pugh:
I have reservations about the CTOs, but I would like
to appeal for a measured discussion on them. I do not think that we
have hitherto had that. The
Government were accused of stirring up alarm among the general public
about what mentally ill people might do, and we subsequently had an
exhibition of alarm being spread among people who are mentally ill
about what the Bill might do. When we examine Hansard in the
cool light of day, I think we will see that it was suggested that the
introduction of the Bill could lead people to suicide or to go
underground. Simultaneously, the claim will be found in Hansard
that all research into CTOs so far shows neither a negative or positive
effect. Clearly, those things cannot simultaneously be
true.
In
principle, there is no case against CTOs as a therapeutic alternative
to sectioning. They are not better than voluntary co-operation, and
they have to be adequately resourced. They are widely used worldwide
and there is an argument about their relative effectiveness. The best
that can be said, as it has been, is that the jury is out on that.
There is an assessment problem, because people under CTOs in all
countries do not form a homogenous group. Regimes are different, and
exactly what a CTO means in one country is not necessarily the same as
in another. It is difficult to know how one should conduct a study and
whom one should compare. I have read some of the literature in
appreciable detail, and that is broadly the conclusion that I have come
to. With whom should we compare people on CTOs—existing
in-patients, or other patients who are seen on a voluntary
basis?
The real test
would be to take three identical, appropriate groups of people who we
agree ought to be on CTOs and do absolutely nothing with one group, put
another on CTOs and offer the third the possibility of voluntary
co-operation. There are ethical considerations as to why one should not
conduct such an experiment, but it is the only thing that would
establish satisfactorily the truth of the matter.
There would still be the
problem of how to assess the results. Should they be assessed in terms
of therapeutic benefit to the individual or should we, as in the cases
of drugs such as Aricept, bring in the effect on carers and the
community at large? One can imagine it being a formidable task for NICE
to assess the benefits of CTOs. It is not a piece of work that NICE
would immediately look
for.
None
the less, I think that all parties share the general presumption that
we do not want carte blanche, for good reasons. The civil liberties
considerations are important, but it has also been said quite
legitimately that a considerable element of coercion is therapeutically
negative. There is a severe possibility of misuse of two sorts. One is
the use of a CTO where it is not necessary because the patient can be
helped in some other way. The other type of misuse, which is very
different, occurs where we can simply afford to let the patient be
sick. I think that we do accept that. If I may go on a slight
discursion, I will get home
tonight—
Dr.
Pugh:
Maybe. Tomorrow, one of my regular clients will
appear in my surgery. He will have left three letters in my
letterbox—full letters, with lots of detail. He is a gentleman
who believes that lawyers and doctors conspire against him, that his
telephone is being intercepted and that he is being particularly
victimised by a Member of the House of Lords whom
I shall not name but who, according to him, sends
people over to where he lives in order to intimidate him.
He has an obsessive
need—that is where his illness takes him—to see his MP on
a regular basis. At one stage, I discovered that he was living outside
my constituency and in that of another MP. I pointed out to him that
there was a strict parliamentary rule, and he came back a week later
with a note from the MP saying that it was perfectly OK—he would
make an exception in that case. I referred him to his doctor. I said,
“Go and get me some indication that you are in fact as well as
you say you are.” He brought back a letter saying that he had
been referred by his doctor to psychiatric services, where they
pronounced him to be an interesting man with no particular
problems.
He is a
man with a mild case of paranoia, and he is never going to get help. He
is definitely never going to seek help. He describes himself as
miserable, and I guess that at times he is. He is 80, and has a lot of
health problems to come. But he is not a case for a CTO, because
society has simply decided that he can be ill, even though therapy
would help him at this juncture and would have helped him in years gone
by. There are a lot of people whose ailments we would like addressed,
but they never will be, and we accept
that.
However, there
are certain structural features of the CTO legislation that the
Government have not got right. If we are to have a CTO at all, we must
have clear selection criteria. The Minister and the Government are
suggesting that people should at least be sectionable before being put
under a CTO. That seems to be the line being pursued. One could almost
call it sectionable-plus, because a certain amount of prior detention
is required. There must be robust protection against needless
renewal—we have reservations about that, to which we shall come
later—and there must be as little coercion as necessary.
Clearly, that does not apply to the measures, because psychiatrists
have almost total freedom to forbid any activity by any person under a
CTO. That must be
addressed.
The
distinction between the Government and the Lords is that the Government
want people to be sectionable-plus, while the Lords want people to be
sectionable-plus-plus. One might ask why the conditions for a CTO are
set to a higher threshold than the conditions for being sectioned,
because that is what appears to be the
case.
It all comes
down to one fundamental reservation about the possibility for growth,
expansion and the use of CTOs beyond the current remit—for
mission creep. All the things that the Lords are trying to do would
arrest that development. In doing so, they might well omit suicidal
cases, which the Minister would like to see included. Surely, given the
empirical evidence across the world that CTOs suffer from mission
creep, the Government need to address that problem and address it in a
better way than the amendment that they have tabled
today.
4.30
pm
Ms
Winterton:
I shall be brief. First, I thank the hon.
Member for Broxbourne for his apology, which is certainly accepted. I
reassure him that the estimates
that we have made will, of course, be monitored. I think that hon.
Members wanted to know that we will be monitoring the number of people
on CTOs; their ethnic origin; the length of time of the CTO; the number
of recalls to hospital, and the number of revocations of
CTOs.
We are also
carrying out research to examine how the SCT is working in practice,
and collecting evidence about which patients receive SCT and what the
benefits are, so that we can have an ongoing discussion about how to
ensure that SCT is working properly.
I think that the hon. Member
for East Worthing and Shoreham was making an offer to extend, as the
Government wishes, the use of SCT to patients who may be suicidal or
self-harming. I am very grateful to him for making that offer. In the
light of that, I hope that he will not vote against the amendments that
the Government are moving today.
Question put, That the
amendment be
made:—
The
Committee divided: Ayes 12, Noes
9.
Division
No.
9
]
Question
accordingly agreed
to.
Tim
Loughton:
I beg to move amendment No. 3, in
clause 32, page 21, leave out line
46.
The
Chairman:
With this, it will be convenient to discuss the
following amendments: No. 4, in
clause 32, page 22, line 7, at
end insert—
‘(8) A community
patient or his nearest relative may make an application to the Mental
Health Review Tribunal to vary or suspend any or all of the conditions
imposed under section (3)(a), (b), (d) and (e) within the relevant
period or if substantial variations have been made by the responsible
clinician under subsection (4)
above.
(9) In subsection (8)
above “the relevant period”
means—
(a) six months
beginning with the day on which the community treatment order is made;
and
(b) the period or periods
for which the community treatment period is extended by virtue of the
report.
(10) Where application
is made to a Mental Health Review Tribunal by or in respect of a
community patient under subsection (8) above the
tribunal—
(a) may
recommend that the responsible clinician consider whether to vary or
suspend any or all of the conditions imposed under sections (3)(a),
(b), (d) and (e) of the Mental Health Bill [Lords] 2007 (c. );
and
(b) may further consider the patient’s case
if the responsible clinician does not make all or some of the changes
recommended.
(11) Nothing in
this section restricts the power to make applications to tribunals
under section
66.’.
No.
5, in
schedule 3, page 63, line 27, at
end insert—
‘(d) Where
application is made to the tribunal by or in respect of a community
patient and the tribunal does not direct that the patient be
discharged, the
tribunal—
(i) may
recommend that the responsible clinician consider whether to vary or
suspend any or all of the conditions imposed under section (3)(a), (b),
(d) and (e); and
(ii) may
further consider the patient’s case if the responsible clinician
does not make all or some of the changes
recommended.’.
Tim
Loughton:
As we have had the general dust-up on the CTOs,
I will not take long to move the
amendment.
The
amendments are intended, if we are to have CTOs in the form that the
Government want, to put more conditions on those
orders.
Amendment No.
3 would remove the extra condition on CTOs about patients abstaining
from particular conduct. The point that I tried to make earlier was
that the form of CTO that the Government are trying to push through
here is far more wide-ranging and stringent and imposes far more
coercive measures on patients than is the case anywhere else in the
world, as far as I can see.
Although the Government have
made the case for compliance with medication, the legislation would
give enormous powers to place restrictions on where someone could live;
what pub they may or may not be able to visit, and even to impose a
curfew that they may have to adhere to. I am afraid that those
lifestyle and social considerations are more akin to what we have in
ASBOs imposed under criminal legislation at the moment. That is why the
Law Society and many other bodies have called the CTOs psychiatric
ASBOs. It is likely that the use of CTOs will impact on key aspects of
a person’s life and dictate with whom they can associate and
places that they can go, even though they will not have committed an
offence.
The
draft code of practice states that the aim of the conditions is to
highlight to the patient what is expected of him while the order is in
force. However, surely such language implies a punitive use of the
orders, rather than the positive provision of services portrayed by the
Government. Refraining from such behaviour is likely to be unachievable
without a great deal of support. In any case, it is clear, for example,
from the widespread national concern about drinking and drug-taking
that merely telling people not to drink or take drugs is not an
effective health
strategy.
The Mental
Health Act Commission has raised serious concerns that over time those
provisions might be used to provide controlling arrangements, perhaps
for young black people thought to be drug addicts. They could then be
placed on the equivalent of an ASBO, but run under the aegis of the
Mental Health Act. That is a very serious concern.
Even the
National Forum for Assertive Outreach, which is a strong supporter of
CTOs, has agreed that it
would be morally wrong to place conditions on a CTO
preventing a patient from visiting the pub or from begging. In
addition, we believe that the extent to which a mental health
professional will be able to keep a close eye on an individual has been
greatly overstated. In reality, it would be left to the carers to
police the conditions of the CTO—for instance, to ensure that
the patient does not go down the pub or is back home by a certain time.
Surely, that will add to the already onerous burden on those carers. We
must consider the position of
carers.
Amendment
No. 4 is intended to ensure that conditions placed on CTO patients are
reasonable and that the patient has powers and mechanisms to challenge
them. Amendment No. 5 would amend schedule 3 so that a tribunal could
recommend responsible clinicians to vary or suspend conditions if a CTO
is to remain in place. The amendments would give a patient on a CTO the
right to appeal to the mental health review tribunal against any of the
conditions imposed. Surely, that must be right. If we are going to
impose a penalty or restriction on somebody, just as if we are going to
make something a crime, then how somebody could challenge the basis of
that prosecution or restriction of their liberty must be made explicit.
If the mental health review tribunal found that any of the conditions
were unreasonable, it could recommend that the responsible clinician
change the conditions and order a further hearing if it is not complied
with. That is similar to the existing power of the tribunal to make
recommendations to the clinical
team.
It
is important that conditions are reasonable and that the patient can
challenge any unreasonable requirements. The responsible clinician and
the approved mental health professional might not have met the patient
before the crisis, as I have said, so how could they be in a position
to determine the home life, and social and lifestyle choices of that
patient when back in the community? They would not have firsthand
experience. Although the supervising clinician could be sympathetic to
any such case made to them by a patient, the right to challenge
restrictions should not hinge on the good will of a
clinician.
The Joint
Committee on Human Rights concluded, in its report on the Mental Health
Bill, that to ensure compliance with the Human Rights
Act
“a patient should be
entitled to seek review of the conditions before a Mental Health Review
Tribunal.”
It
concluded that the right to an appeal is an important safeguard of
their proper use. Those are safeguards for patients whom the Government
now want to place under potentially highly restrictive conditions on
how they can lead their life—we are not just talking about
medication.
Dr.
Naysmith:
Does the hon. Gentleman not realise that the
patients about whom we are talking will have been to hospital at least
twice and be used to conditions much more restrictive than those they
will find when released into the community to stay with their loved
ones? Those restrictions would probably have been even more draconian
in hospital than in the
community.
Tim
Loughton:
Absolutely. We hope that people will be able to
return to some form of “normal life” because of the
treatment that they receive. Nobody is trying to
suggest that those highly controlling conditions in a hospital should be
replicated in the community. The whole point of the Minister’s
argument is that this is some form of step down, but we are trying to
ensure that there are proper checks and balances that appreciate and
respect the patient’s rights. Going beyond just ensuring
compliance with medication imposes severe limitations on the liberty of
that person to try to get back to normal in the
community.
Angela
Browning:
Does my hon. Friend agree that another group of
people who are often subject to punitive restrictions are those who are
subject to a probation order, but at least they have had the benefit of
going through the criminal justice system?
Tim
Loughton:
Indeed. My hon. Friend has experience in that
area.
I do not wish
to detain the Committee any further. These are useful amendments and I
hope that the Minister will leap up and say, “Of course you are
right. We will take
them.”
Ms
Winterton:
I think that there has been a lot of
misunderstanding on the issue of conditions. They are a way of helping
patients to live successfully in the community. They let the patient
know what the professionals responsible for his care think he needs to
do well. I must return to a point that I made earlier: the point about
supervised community treatment and community treatment orders is that,
unless the patient accepts that the conditions keep him well, there is
no point in imposing them. We can tell someone when he is discharged
from hospital, “We are going to impose this on you.”
However, should the patient not accept it, there would be no point in
doing it. The whole idea is to get the patient to accept that these
things keep him well in the community.
I should
emphasise that compliance with the conditions can be a marker of how
well a patient is managing life in the community. A failure to comply
with conditions may mean that the patient needs to be recalled to
hospital for treatment to avert a risk of harm to himself or to others,
but that is not an automatic consequence of a failure to comply. The
patient cannot be detained in hospital again unless the conditions for
detention in hospital once again come into play: the individual has
become a danger to themselves or to others, and treatment can be given
only in the hospital setting.
I shall come
on to abstention from behaviour, which is the condition that the hon.
Gentleman is particularly concerned about. On the first
condition—place of residence—it may be that the patient
agrees and accepts that living with their family helps them to stay
well. That is when we talk about residence. It might be that taking
illegal drugs always leads to a patient becoming very ill—we
hear such stories over and over again—and that is the issue
about the final condition, which the hon. Gentleman has talked
about.
Angela
Browning:
Within the criminal justice system, a court has
the right to waive a prison sentence where the person is agreeable to a
drug or alcohol treatment centre programme on the basis that should
they fall
through the net, they go back to a prison sentence. The amount of
support that goes into supporting a drug addict in such circumstances
is surely far more in terms of resource than what the Minister is
proposing.
4.45
pm
Ms
Winterton:
I return to what I said. Community treatment
orders will depend on the treatment being available. We are talking
about abstention from a particular thing, such as drug taking, that all
concerned know can make the patient ill
again.
On
the formal right of appeal against the conditions, I hope that hon.
Members will accept that it is not appropriate for the tribunal to have
a role in reviewing the conditions for a CTO. The tribunal is there
strictly to decide whether a patient meets the criteria for detention
or for supervised community treatment, as the case may be. Decisions on
treatment are outside its
remit.
The
expectation is that, first, the patient will accept that the conditions
are right; secondly, they must be examined by an AMHP; and, thirdly,
there are all the rights of appeal to the mental health tribunal and to
hospital managers, if it is felt that the conditions for SCT were no
longer applicable.
I
hope that that explains why we cannot accept the amendment, and that
the hon. Gentleman will withdraw
it.
Tim
Loughton:
I really do not think that the Minister has been
listening. This is a substantial restriction of liberty that is being
placed on individuals, and it is one above many other things that we
believe will act as a disincentive for people to engage voluntarily
with mental health services in the first place. Ensuring that someone
takes their medication is one thing, but having severe restrictions
placed on their lifestyle without due process of law, with all the
curtailments that that brings about, absolutely smacks of an antisocial
behaviour order. This piece of legislation belongs with the criminal
justice system, not the health system. On that basis, I intend to press
the amendment to a
vote.
Question
put, That the amendment be made:—
The
Committee divided: Ayes 8, Noes
12.
Division
No.
10
]
Question
accordingly negatived.
Amendments made: No.
24, in clause 32, page 23, line 28, leave out from beginning
to ‘the’ and insert ‘in his
opinion,’.
No. 25, in
clause 32, page 23, line 34, leave
out subsection (5).—[Ms Rosie
Winterton.]
Tim
Loughton:
I beg to move amendment No. 2, in clause 32,
page 24, line 42, at end insert
‘for a maximum of three years in
total’.
The
Chairman:
With this it will be convenient to discuss
Government amendments Nos. 26, 27 and
30.
Tim
Loughton:
I shall not detain the Committee long. Rather
unusually, I seem to be leading on a group including Government
amendments, so the length of the debate will depend on how long it
takes the Minister to introduce her amendments
afterwards.
The
amendment goes back to the lobster pot concept that I mentioned
earlier, which was raised by Professor Genevra Richardson. It is about
time limits being placed on CTOs, and whether somebody can get out of
the system having been much more easily scooped into it—the
lobster pot. We are questioning the time scale in the Bill. It was a
recommendation of the pre-legislative scrutiny Committee that there
should be a maximum for CTOs of three years in any five-year
period.
The amendment
endeavours to insert a maximum time of three years. If someone’s
condition had not improved to the extent that he or she can be
discharged in the proposed time of three years, surely that would
suggest that the CTO has failed to work and therefore needs to be
reviewed.
Being a
revolving door patient is not a permanent condition. It usually lasts
for a short period, while a person comes to terms with a diagnosis,
finds out which treatment or combination of treatments is best for
them, re-establishes a life in the community—possibly after a
lengthy period in a psychiatric hospital, which can involve going from
living alone to having to live with strangers with similar
conditions—establishes a therapeutic relationship with a
community psychiatric team or is referred to and engages with the
various resources available, such as day centres, employment support,
therapeutic support and housing support. Consequently, CTOs should be
seen as a shorter-term option to help patients through a period of
crisis when they have become a revolving door patient, not orders that
should be renewed indefinitely, which would make them rather more like
something from a piece of criminal justice legislation.
There is
also a self-fulfilling justification for CTOs, which can validate
themselves no matter what the outcome. If an individual’s mental
health improves, that could be seen as a reason for their remaining
under the order, so as to maintain that improvement. If they
deteriorate, that could also be seen as justifying the need to
continue. There is a real fear that people will be sucked into the
lobster pot and into coercion, but it is not at all clear how they can
get out. It is reasonable that a time limit should be imposed. I shall
be interested to know why the Government do not agree and why they did
not put one in the Bill in the first
place.
Ms
Winterton:
Let me say straight away that I understand the
reason for the hon. Gentleman’s amendment. I know that people
are concerned about whether community treatment orders could be
extended without any real justification, just to be on the safe side.
However, I assure the Committee that there is no reason at all why that
should happen, because if it did the person responsible would be acting
unlawfully. As we explained when the issue was debated in the other
place, there are many safeguards in the Bill to protect patients,
including access to the tribunal and the automatic referral to the
tribunal, which happens not only after the first six months, but after
three years.
There
are concerns about the renewal of detention, but I hope that hon.
Members will agree that our amendments to involve an approved mental
health professional in decisions about extending a patient’s CTO
will address those concerns. Our amendments were inspired by an
amendment in the other place. We are retaining the effect that their
lordships wanted, although we are changing the way it is set out in the
Bill.
If members
of the Committee accept our inspired amendments, patients on a CTO will
have a further important safeguard. Each time a CTO come up for review,
an AMHP must agree that the conditions for its extension are met and
that it is appropriate for the order to be extended before that can
happen. A second opinion from a professional who is trained to take
decisions using a different perspective—in particular, to
consider the patient’s social circumstances—will ensure
that the patient’s situation is considered from every angle.
Even if the conditions are met, the AMHP will be able to decide that
the extension of the CTO is not appropriate, so there will be full
scope for the right decision to be made for the patient. The
involvement of two professionals in the extension process will provide
further protection against the unjustified extension of
compulsion.
That is a
better way to tackle the issue than putting an arbitrary time limit on
CTOs, which would mean the patient having to be discharged on a certain
date, whatever his or her clinical condition at the
time—[Interruption.] Obviously the effect of my speech is
earth-shattering. There are obvious risks to that approach. Any time
limit is an entirely arbitrary construct and takes no account of
individual circumstances. As my noble Friend Lord Hunt said in the
other place, that approach creates a kind of cliff-edge, as opposed to
a lobster pot, in that a patient has to be discharged irrespective of
whether he can manage safely in the community without the support of a
CTO. That has the potential to put patients, their families, carers
and, in some cases, the public, at real risk. In such cases, the only
option may be to detain the patient.
We do not
think that those risks are justified, given the safeguards that are
available for patients. In addition to the involvement of the approved
mental health professional in CTO reviews, the patient has the right to
apply to the tribunal for discharge as soon as the CTO begins and once
during each period it is extended. Importantly, hospital managers and a
patient’s closest relative can exercise the power of discharge
from a CTO just as they can for detained
patients.
I hope that
our amendments will reassure service users, their families and all
stakeholders that we do not intend for patients to be on CTOs when
there is no need for them to be. The amendments will provide a
sensible, practical measure to deliver that further reassurance. I
therefore urge the hon. Member for East Worthing and Shoreham to
withdraw amendment No. 2 and to support our
amendments.
Tim
Loughton:
I shall not press the amendment, largely because
the Minister spoke so fast that I shall have to read her words
afterwards to understand them. I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Amendments
made: No. 26, in clause 32, page 25, line 3, after
‘satisfied’, insert
‘and if a statement under
subsection (7A) below is
made’.
No. 27,
in
clause 32, page 25, line 4, leave
out from ‘report’ to end of line 5 and insert
‘to that effect in the prescribed
form’.
No. 28,
in
clause 32, page 25, line 6, leave
out subsection (5).
No. 29, in
clause 32, page 25, leave out lines 24 to
43 and insert—
‘(b) it is
necessary for his health or safety or for the protection of other
persons that he should receive such
treatment;
(c) subject to his
continuing to be liable to be recalled as mentioned in paragraph (d)
below, such treatment can be provided without his being detained in a
hospital;
(d) it is necessary
for his health or safety or for the protection of other persons that he
should continue to be liable to be recalled to hospital for medical
treatment;’.
No.
30, in
clause 32, page 25, line 45, at
end insert—
‘(7A) The
statement referred to in subsection (4) above is a statement in writing
by an approved mental health
professional—
(a) that
it appears to him that the conditions set out in subsection (7) above
are satisfied; and
(b) that it is appropriate to extend the community
treatment period.’.—[Ms Rosie
Winterton.]
Motion
made, and Question put, That the clause, as amended, stand part of
the
Bill.
The
Committee divided: Ayes 12, Noes
8.
Division
No.
11
]
Question
accordingly agreed to.
Clause 32, as amended,
ordered to stand part of the
Bill.
Schedules 3 and 4
agreed to.
Clause 33
ordered to stand part of the
Bill.
Further consideration
adjourned.—[Claire
Ward.]
Adjourned
accordingly at Five o’clock till Tuesday15 May
at
half-past Ten
o’clock.
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