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Miller of Chilthorne Domer, B.
Morris of Bolton, B.
Murphy, B.
Murton of Lindisfarne, L.
Neuberger, B.
Newby, L.
Newton of Braintree, L.
Northbrook, L.
Northover, B.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Palmer, L.
Palumbo, L.
Patel of Bradford, L.
Patten, L.
Pearson of Rannoch, L.
Pilkington of Oxenford, L.
Rawlings, B.
Razzall, L.
Redesdale, L.
Rees, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rotherwick, L.
Saltoun of Abernethy, Ly.
Sandberg, L.
Scott of Needham Market, B.
Seccombe, B.
Sheikh, L.
Shephard of Northwold, B.
Shutt of Greetland, L. [Teller]
Smith of Clifton, L.
Stern, B.
Stewartby, L.
Teverson, L.
Thomas of Swynnerton, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tonge, B.
Tope, L.
Trefgarne, L.
Tyler, L.
Vallance of Tummel, L.
Verma, B.
Waddington, L.
Wakeham, L.
Walmsley, B.
Walpole, L.
Walton of Detchant, L.
Watson of Richmond, L.
Wilcox, B.
Williamson of Horton, L.
Wolfson, L.
Acton, L.
Adams of Craigielea, B.
Adonis, L.
Ahmed, L.
Alli, L.
Amos, B. [Lord President.]
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Bhattacharyya, L.
Bilston, L.
Blackstone, B.
Borrie, L.
Bradley, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell-Savours, L.
Carter of Coles, L.
Chandos, V.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Corston, B.
Crawley, B.
Cunningham of Felling, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Drayson, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
26 Feb 2007 : Column 1424
Farrington of Ribbleton, B.
Filkin, L.
Ford, B.
Foster of Bishop Auckland, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Goldsmith, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haworth, L.
Hollick, L.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
Kilclooney, L.
King of West Bromwich, L.
Kingsmill, B.
Kinnock, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Lipsey, L.
Lockwood, B.
Lofthouse of Pontefract, L.
McDonagh, B.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mason of Barnsley, L.
Maxton, L.
Mitchell, L.
Morgan, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Yardley, B.
O'Neill of Clackmannan, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Prys-Davies, L.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Rosser, L.
Royall of Blaisdon, B.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Sheldon, L.
Simon, V.
Smith of Finsbury, L.
Smith of Gilmorehill, B.
Soley, L.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Thomas of Macclesfield, L.
Tomlinson, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Varley, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Whitaker, B.
Whitty, L.
Winston, L.
Woolmer of Leeds, L.
Resolved in the negative, and amendment disagreed to accordingly.
7.02 pm
[Amendments Nos. 40 and 41 had been withdrawn from the Marshalled List.]
[Amendments Nos. 41ZA to 43 not moved.]
Earl Howe moved Amendment No. 44:
The noble Earl said: My Lords, this amendment is about time limits. One of the big worries that many of us have about CTOs is that, as formulated in the Bill, they are of indefinite duration. To my mind that is not acceptable. Let us just consider what kind of patient will be thought appropriate for supervised treatment in the community. It will typically be the patient who is coming to terms with his diagnosis and finding out which treatment is best for him. It will be someone who is trying to re-establish a life in the community,
26 Feb 2007 : Column 1425
That profile of a typical CTO patient is all about making the transition from being an in-patient to living a normal life in the community. If CTOs are seen as transitional in this sense, then patients should not be subject to indefinite renewals of supervised community treatment once they are on it.
While a patient is on a CTO either he will get better or he won’t. If he has got better, he should be discharged. If someone’s condition has not improved to the extent that he can be discharged within a reasonable period—and the amendment proposes three years—that suggests that the CTO has failed to stabilise the patient’s health sufficiently. If that is the conclusion, then his treatment needs reviewing properly. A review of this sort should take place in hospital and need not involve a long stay. Once that has happened, it may be thought appropriate for supervised community treatment to occur on a slightly different basis from before.
In the Bill as published, setting aside the effect of the amendments passed earlier, the provisions for entry on to a CTO are very broad. A CTO can also be reviewed year on year without time limit. In those circumstances it may be very difficult for someone to prove that they no longer need to be placed on one, because there will always be an argument the other way. If the person’s mental health has improved, the argument will be that he ought to remain under the order to maintain the improvement. If he deteriorates, that could also be seen as justifying the need to continue the order. So a CTO validates itself either way.
Professor Genevra Richardson raised this concern with her memorable analogy of the lobster pot: a CTO will be relatively easy to get into but very difficult for a patient to get discharged from. A CTO can be renewed using the same broad grounds as those used to determine whether to place someone on a CTO in the first place. These are the reasons why, I believe, the aggregate period over which a CTO may be extended, including renewals, should be limited to three years. In other words, any extension of supervised community treatment after three years should require a new assessment under the Act. The amendment is in tune with the recommendation of the joint scrutiny committee, which proposed something very similar. Three years is a period which I am advised is sensible and reasonable for achieving the therapeutic objectives inherent in a CTO without restricting a person’s liberty in an unacceptable, open-ended way. I expect that the Minister has been briefed to resist the idea but I hope that, at the very least, he will wish to take it away and reflect on it. I beg to move.
Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Earl, Lord Howe, for his amendment, which seeks to set a time limit on the
26 Feb 2007 : Column 1426
I understand the lobster pot analogy used by Professor Richardson, concerning patients who would find it very hard to get out of non-resident treatment. I share the view, as I have already implied, that supervised community treatment should not last indefinitely, but I am not convinced that the amendment is the right way to go about it. Any time limit that we might set is inevitably arbitrary. The noble Earl might have chosen two years or four years; it takes no account of any individual circumstances or of the patient’s clinical condition. I suggest to the noble Earl that there is the danger of a “cliff-edge” approach, and the cut-off date might create that.
It might leave the responsible clinician in a situation of a perverse incentive, where a patient would have to be discharged on a certain date, irrespective of their clinical need or whether they are able to manage in the community without the support that the community treatment order provides. Mental health practitioners might be in a very difficult position if they had to stand by knowing that a patient was likely to relapse and the only action that they could take if they were not prepared to, or it would not be right to, take the risk of discharging the patient would be to apply to detain the patient once more and the patient would have to come back into hospital. I understand what the noble Earl is seeking to do here, but there is a risk that by putting three years into legislation it could work the other way. It might be perceived as the norm, and there might be an expectation that patients remain on supervised community treatment until their three years are up.
We believe that the construct of the Bill, with the safeguards, when the question of renewing the community treatment order is being considered, is the best way to deal with the issue rather than having an arbitrary time limit. Noble Lords should remember that a responsible clinician can discharge a patient at any time, and they must do so if the patient no longer meets the criteria for supervised community treatment as laid out in the Bill. That question has to be explicitly reviewed every time an extension of the community treatment order is considered. The patient can also apply to the tribunal for discharge as soon as a supervised
26 Feb 2007 : Column 1427
In conclusion, although I fully understand what the noble Earl, Lord Howe, seeks to do, the conditions and safeguards in the Bill serve the purpose better than a time limit, which, of necessity, is bound to be arbitrary.
Earl Howe: My Lords, I thank the Minister for his reply and take note of his comments. He described the amendment as a “cliff edge approach”. I do not share that analysis. The amendment would certainly not oblige a clinician to discharge a patient. The point is that it would leave open the option of a fresh assessment for the patient. In my view, that is only fair to the patient if, after three years, his condition has shown insufficient signs of improvement. We are seeking to avoid a situation where too few questions are asked. Once someone is on a CTO, it is very easy for a clinician to renew it with insufficient thought about whether it is the right thing to do therapeutically. Nevertheless, there is not going to be agreement between me and the Minister on this. It perhaps needs to be tested in the field before we see whether an open-ended arrangement is sensible and right. Noting the Minister’s objections, and with my own reservations and doubts on the record, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.15 pm
[Amendment No. 45 had been withdrawn from the Marshalled List.]
Earl Howe moved Amendment No. 45A:
Clause 26 , page 19, line 31, leave out from “report” to end of line 32 and insert “, in the prescribed form, that in his opinion the relevant conditions are met”
On Question, amendment agreed to.
[Amendment No. 46 had been withdrawn from the Marshalled List.]
Earl Howe moved Amendments Nos. 46A and 47:
(a) an approved mental health professional states in writing— (i) that he agrees with the opinion of the responsible clinician that the relevant conditions are met; (ii) that it is appropriate to make the order; and (b) if the responsible clinician is not a medical practitioner, a medical practitioner, as provided in section 17F(4A), has examined the patient and as a result of the medical examination it appears that the conditions mentioned in subsection (6) are satisfied in respect of the patient.” “(b) except where a patient is detained under Part 3 of this Act (a patient concerned in criminal proceedings or under sentence), the patient’s ability to make decisions about the provision of medical treatment is significantly impaired because of his mental disorder;26 Feb 2007 : Column 1428
On Question, amendments agreed to.
Schedule 3 [Supervised community treatment: further amendments to 1983 Act]:
[Amendments Nos. 49 to 50A not moved.]
Lord Patel of Bradford moved Amendment No. 51:
“(4A) The Secretary of State shall, after consultation with the Commission and with such other bodies as appear to him to be concerned, direct the Commission to keep under review the care and treatment, or any other aspect of treatment, of all patients in hospitals, independent hospitals and in such other settings as he may decide who are subject to sections 4A and 4B of the Mental Capacity Act 2005.
(4B) Where the Commission has good cause to suspect that a patient who is neither liable to be detained under this Act, nor subject to safeguards under sections 4A and 4B of the Mental Capacity Act 2005, is being deprived of his liberty as a consequence of admission to a hospital or an independent hospital, any person authorised by the Commission may—
The noble Lord said: My Lords, I will speak to Amendments Nos. 51 and 52. The Mental Health Act Commission is primarily a visitorial body, whose members meet patients detained under the Act and keep under review the powers and duties of the 1983 Act. It is a modern incarnation of an honourable, or at least relatively honourable, tradition of such bodies, stretching back to the seventh Earl of Shaftesbury’s lunacy commissioners of the mid-19th century.
In some ways, the lunacy commissioners had an easier task than that faced by the Mental Health Act Commission today. The landscape that they surveyed was largely one of asylums and private madhouses, within which most patients were subject to the legal powers that they were concerned to report on. But the increasing emphasis throughout the 20th century, rightly, on informal treatment has meant that most patients passing through the hospital systems today are not formally subject to legal powers and are out of the reach of the Mental Health Act Commission.
26 Feb 2007 : Column 1429
I am not seeking to make the point that the Mental Health Act Commission should have under its purview all mental health services. Indeed, in discussions with the Government on their plans to merge the Mental Health Act Commission with other health and social care inspectorates, I have argued consistently for the protection of a visitorial role, with a primary focus on those who are deprived of liberty in the psychiatric system.
The Mental Health Act Commission has been saying to various Governments for more than 20 years that not everyone who is deprived of liberty is subject to the formal powers of the 1983 Act. Our observations were confirmed by the European court rulings that have led to the so-called Bournewood proposals in this Bill. Even if Parliament accepts those proposals, and monitoring is established for the new legal framework for authorising deprivation of liberty, I guarantee to this House that there will still be patients who are subject to conditions amounting to deprivation of liberty without any formal powers and safeguards being invoked.
In Committee, I remarked on the dreadful irony that the safeguard of Mental Health Act Commission visiting extends to those who are lawfully detained but not to those who are unlawfully detained. The law at present appears to require Mental Health Act commissioners to walk past those patients who may be incarcerated unlawfully in dirty, cell-like rooms on the grounds that formal powers under the 1983 Act have not been applied to deprive those patients of their liberty in a lawful manner. This amendment would simply allow the Mental Health Act Commission to have legitimate access to patients and records and to raise its concerns formally when it encounters worrying situations concerning informal patients or patients subject to the Bournewood provisions. I emphasise now, as I did in Committee, that this is not a call for extra resources, but a simple request that the Mental Health Act Commission be enabled to raise questions about patients that its commissioners cannot but notice while undertaking their current statutory duties.
I have revised my amendment since Committee, having taken account of the Government’s correct concern at the earlier drafting, which implied that a statutory body could “keep under review” the unlawful treatment of patients. I have rephrased the amendment to be more specific about what the statutory powers should be when the Mental Health Act Commission encounters de facto detained patients.
In Committee, I said in response to the Minister that I could not accept his assurance that legal safeguards would be addressed in future legislation to merge current health and social care inspectorates. I cannot see why we should not take this opportunity to amend the commission’s remit now and provide some protections in the interim period, even if these measures will eventually be overtaken by events. The Minister knows well that existing powers under the 1983 Act enable the commission’s remit to be extended in the way that I suggest here. He will also know that our request for an extension of similar effect has been extant since 1985.
26 Feb 2007 : Column 1430
I believe that I have the support of many noble friends in this House and I hope that the Minister will be able to respond to my amendment in a constructive manner. I beg to move.
Baroness Royall of Blaisdon: My Lords, the noble Lord, Lord Patel, argued as persuasively for this amendment today as he did in Committee for a slightly different amendment. However, he will be glad to hear that we have some sympathy with the amendment, although there are a couple of important things to bear in mind.
First, as the noble Lord noted, there is current work to establish a new single regulator in England replacing the Mental Health Act Commission, the Healthcare Commission and the Commission for Social Care Inspection. We argue that the issue in the amendment of the noble Lord, Lord Patel, sits comfortably with that work and will be considered as part of the creation of the new regulator during 2008.
Secondly, the amendment may cut across monitoring proposals for the Bournewood safeguards. The statement of intent that we have published outlines how the monitoring function will be conferred on the three existing inspectorates in England, including the Mental Health Act Commission. After the establishment of the new single regulator, the function would transfer to that body. We would not wish to establish powers that might not dovetail with that.
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