Mental Health Bill [HL]

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 3. I shall speak also to Amendments Nos. 5 to 9, 15 to 18, 20, 22 to 30, 43 to 52, 54, 55, 57, 59 to 61, 63, 64, 67, 69, 70 to 72, 74, 77 to 100, 107 and 108. Some of them address amendments that were discussed, often passionately, in this House when the Bill was first before us; others make a series of technical improvements. Amendments Nos. 3, 5 and 6 restore the original wording of the Bill’s references to ““appropriate medical treatment””. Amendment No. 3 refers to the criteria for detention for treatment under Section 3 of the 1983 Act. Amendments Nos. 5 and 6 make similar changes in relation to the role of second opinion advisory doctors (SOADs) in confirming that it is appropriate for certain medical treatments to be given. These amendments reverse the amendment, agreed to by your Lordships, effectively reinserting the so-called treatability test, which the Government believe has done more harm than good. Restoring the references to ““appropriate medical treatment”” puts us in a position to respond positively to the concerns, expressed by many noble Lords and Members of all parties in the other place, that the Bill should spell out in more detail what ““appropriate medical treatment”” would mean in practice. Amendments Nos. 7, 8 and 9 do that by making explicit the purpose of medical treatment for mental disorder and so providing further clarification on the effect of the ““appropriate medical treatment”” test. I am pleased that there was all-party agreement in the other place to these amendments, tabled by my honourable friend Chris Bryant. The word ““purpose”” was felt to be better than ““intention””, and the word ““manifestations”” did not have the same risk of misinterpretation that noble Lords identified with the term ““effects””. The Government have listened carefully, and I have no hesitation in commending the result to your Lordships. Important improvements have been made to the safeguards afforded to children. Clause 24, inserted by this House, was removed by Amendment No. 15 as it did not provide sufficient flexibility. However, we have considered further the issue of age-appropriate services for children and young people following the debates in this House and the other place. Amendment No. 30 is the result. We are most grateful to the noble Lord, Lord Williamson of Horton, for laying the initial amendment on this subject and for his help in thinking through the important issues. His positive attitude and his customary determination have carried us a long way. Amendment No. 30 has cross-party support and will ensure that patients aged under 18 are detained in a hospital environment that is suitable for their age, subject to their needs. The word ““environment”” ensures that children and young people should have separate and appropriate physical facilities, staff with the right training to understand and address their specific needs as children, and a hospital routine that will allow their personal, social and educational development to continue as normally as possible. We have not set out a commencement date in the Bill. We believe that it would not be productive because we would have to veer on the side of caution and thus send a mixed message to the NHS. However, our aim is to implement the provision fully in England by around April 2010. Amendment No. 74 provides the necessary flexibility to allow, for example, that new Section 131A be commenced in relation to Part 2 and informal patients in England as soon as resources allow, rather than having to wait until it can be commenced for Part 2, informal, and Part 3 patients in England. Amendment No. 69 was tabled by my honourable friend Madeleine Moon in the other place, and we thank her for doing so. The amendment increases safeguards for 16 and 17 year-olds by ensuring that their cases are referred to a tribunal by the hospital managers after one year, rather than the current three years, where the patient has not used their right to apply or if their case has not otherwise come before the tribunal. This House amended the Bill to include provision for detained patients to refuse ECT, except in emergencies, where they have the capacity to do so. At that time the noble Earl, Lord Howe, and the noble Baroness, Lady Murphy, argued that urgent treatment provisions needed further restriction. Many noble Lords wished to see stronger safeguards on those few occasions when children are treated with ECT. We promised that we would consider the issues further. We did so and brought forward a number of amendments in the other place. As a result, the Bill has been further amended so that no child or young person under 18, whether detained or an informal patient, may be given ECT for their mental disorder without it being approved as appropriate for them by a second opinion appointed doctor. Amendments Nos. 47 to 52, 57, 61, 64 and 67 achieve that. In addition, Amendments Nos. 16 to 18, 22 to 24, 26, 27, 43 and 45 provide that, where the treatment is to be given on the basis of the young person’s own consent, a SOAD must also certify that the patient can, and does, consent to it. We listened carefully to concerns and agreed that ECT is not a treatment that should be given urgently in order to control a patient’s behaviour or relieve suffering. Amendments Nos. 25, 54, 55, 59 and 60 provide that the circumstances in which urgent treatment with ECT can be given in the absence of a SOAD certificate are now restricted to when the patient needs the treatment in order to save their life or to prevent a serious deterioration in their condition. Members of this House spoke passionately in earlier debates about the need for patients to have access to advocates. Your Lordships will recall debating amendments from the noble Lord, Lord Williamson of Horton, and my noble friend Lady Howells’s amendment in Committee about advocacy for all child patients. We considered this issue carefully and believe that the Government’s Amendments Nos. 29 and 100 are the right vehicles for establishing independent mental health advocates to be available to qualifying patients. These advocates, in the process of providing help and support to patients, will be able to meet them in private and meet those professionally concerned with the patient’s medical treatment. Many noble Lords and Members in the other place spoke of the need for specialist advocacy provision for particular groups of patients. A regulation-making power will ensure that specialist skills in addition to core competencies in advocacy can be provided for. With the exception of a small number of technical amendments, all the amendments to the new deprivation of liberty safeguards to be inserted in the Mental Capacity Act have been brought forward to fulfil commitments made by the Government in response to debates in this House. The new deprivation of liberty safeguards are needed for people who lack capacity to consent to arrangements made for their care. The cornerstone of the new arrangements is that deprivation of liberty will be lawful only if it is permitted by a formal authorisation or by a Court of Protection order. If an authorisation to deprive a person of liberty is granted, the period is set on the basis of the best-interests assessor’s recommendation on how long it should last but cannot be longer than 12 months. We are making it clear in the Mental Capacity Act code of practice and in training materials that the period set must be the shortest possible. To allay concerns that 12 months would become the default period for authorisation, my noble friend the Leader of the House committed to take a power to reduce the maximum authorisation period at a future date if monitoring of the operation of the safeguards provides convincing evidence that it is necessary to do so. Amendments Nos. 72, 79 and 98 achieve this. We will keep the length of authorisations granted under review. My noble friend Lady Ashton also committed the Government to consider whether more advocacy support was needed for people who are deprived of their liberty. We have considered the matter, and Amendments Nos. 80, 82, 83, 86 to 90, 93, 94 and 99 give the person deprived of liberty, or their representative, the statutory right of access to an independent mental capacity advocate (IMCA), who will explain to them the authorisation for the deprivation of liberty and provide support with a review or with an application to the Court of Protection. Section 40 of the Mental Capacity Act provides that an IMCA is not required to be appointed in specified situations. Amendments Nos. 71 and 95 to 97 provide for IMCAs in additional circumstances and limit the exceptions under Section 40. Amendments Nos. 81, 85 and 91 were introduced by the Government to make technical changes to the wording used to refer to applications to the Court of Protection and do not alter in any way the rights of the person concerned. Amendment No. 84 relates to one made on Report in this House and would further require the person concerned to be informed by the supervisory body that a request has been made to assess whether they are being deprived of liberty, whether an assessor has been appointed, the name of the assessor and the outcome of the assessment. Amendment No. 91 provides an easy reference point for definitions of terms used in connection with the deprivation of liberty safeguards. It does not alter the safeguards in any way but is purely technical. However, it will make the legislation easier to use. In the other place, the Government introduced Amendments Nos. 70 and 78 to the Domestic Violence, Crime and Victims Act 2004. They extended the rights of victims to receive information and make representations about offenders who receive unrestricted hospital orders. Currently, these rights are only available to victims of convicted offenders who receive a hospital disposal subject to special restrictions. My right honourable friend in another place paid tribute to the work of the Zito Trust and Victims’ Voice, and I would like to do so also. Their advice has been invaluable to us in understanding and addressing victims’ concerns. These amendments are the result. They show the importance that the Government attach to involving victims, and their proper concerns, in the process of managing mental disorder. The Government also tabled further detailed amendments to improve and clarify the safeguards for patients in the Act. Amendment No. 46 makes clear that certificates for child community patients apply when a patient is recalled to hospital or their CTO is revoked, in the same way as the equivalent certificates for adults. Amendment No. 63 provides that the appropriate national authority is able to require that the approved clinician in charge of treatment provide a report on treatment given under the authority of a SOAD certificate issued under Part 4A and on the condition of the patient concerned. It already has this power in relation to certificates issued in respect of detained patients. Amendment No. 28 clarifies what happens when a patient’s capacity to consent to treatment changes after a statutory certificate has been issued. Amendment No. 44 corrects a small gap in the 1983 Act to ensure that no offender patient detained by a court in a place of safety pending admission to hospital can be treated under compulsion. Amendments Nos. 77, 107 and 108 are uncontentious and straightforward. Amendment No. 77 refers to the removal of the privilege amendment. Amendments Nos. 107 and 108 make additions to the Long Title to reflect the clauses added to the Bill in the other place which amend the Domestic Violence, Crime and Victims Act 2004 and Section 40 of the Mental Capacity Act 2005. We listened carefully when the Bill was debated in this House. We have listened to the views of stakeholders and debated at length in the other place. We accepted amendments in the other place and brought forward our own. In doing so, we have addressed the many issues raised in this House. The Bill now makes explicit that medical treatment for mental disorder must be for the purpose of alleviating or preventing a deterioration of the disorder, its symptoms or manifestations. We have provided that children will be treated in appropriate environments, and have extended strengthened ECT safeguards to informal child patients. We have provided that advocacy services will be available to all patients subject to compulsion under the Mental Health Act, and extended advocacy to persons subject to a deprivation of liberty under the Mental Capacity Act. Moved, That the House do agree with the Commons in their Amendment No. 3.—(Baroness Royall of Blaisdon.)