Mental Health Bill [HL]

rose to move, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 32, at end insert ““but do propose Amendment 32A as an amendment to Commons Amendment 32, and Amendment 32B as a consequential amendment to the Bill””. 32A: Line 7, leave out paragraph (d) and insert— ““(d) it is necessary that the responsible clinician should be able to exercise the power under section 17E(1) below to recall the patient to hospital;”” 32B: Page 21, line 19, at end insert— ““( ) In determining whether the criterion in subsection (5)(d) above is met, the responsible clinician shall, in particular, consider, having regard to the patient’s history of mental disorder and any other relevant factors, what risk there would be of a deterioration of the patient's condition if he were not detained in a hospital (as a result, for example, of his refusing or neglecting to receive the medical treatment he requires for his mental disorder).”” The noble Lord said: My Lords, before I speak to my amendments, I, too, thank the Minister for his informative and supportive manner and his continued patience with those of us who are relatively new to the House and are trying to find our way through the complexities of health and social care legislation. When the Government announced their intention to introduce community treatment orders, they offered the reassurance that these were designed specifically to apply to so-called ““revolving-door”” patients, who, as many noble Lords are aware, constitute a relatively small number of those people who are detained under the Mental Health Act. I remind your Lordships that part of the Government’s rationale for introducing a CTO power was that it could provide a less restrictive alternative to long stays, or repeated stays, in hospital for such patients. I think that it is true to say that a great many of the experts from whom we have heard over the years, whether professionals or patients, have found the idea of a CTO acceptable only on these terms: that is, if its use is confined to the revolving-door patients—those who have had multiple admissions to in-patient care. If Parliament drafts the law too widely, the danger is that CTOs will be applied too widely. They could even become part of the normal discharge process for detained patients generally, as a kind of safety net for risk-averse mental health service staff and managers. If this happens, Parliament will not have produced a measure that enables a less restrictive alternative for the effective management of this small group of patients, but instead will have increased massively the legal coercion of psychiatric patients generally. I do not believe that this is the intention of Parliament and I hope that the Minister can reassure me today that my belief is correct. I again take this opportunity to point out the very understandable fear in some black and minority ethnic communities that any increase in coercive powers will impact disproportionately on them. It was with a view to defining the scope of CTOs more precisely that this House tightened the criteria for their use in its previous debates, but of course these amendments to the Bill were undone in another place. I understand that the Government are particularly concerned not to allow any threshold for using CTOs that arbitrarily excludes patients. I understand that concern, which we all share, but there are still some differences between us on what an arbitrary threshold would be. I doubt that I am the only one in this House who felt deep concern at the phrase used by some government officials and Ministers that every exclusion is a patient not treated. As chairman of the Mental Health Act Commission, I find it particularly disturbing to see the conflation of treatment opportunity and coercive treatment in this way. It is important that we establish a threshold below which treatment is offered rather than insisted on. It should be a salutary lesson to us all that, even in parliamentary debates and ministerial statements outside the House, the focus on revolving-door patients as the proper subjects of CTOs appears to have blurred. If the lawmakers cannot keep such a focus, it is a vain hope that the people who operate the law will do so. With that in mind, I will pay close attention to the consultation on the code of practice, and I hope that the code will end up with a clear statement of intent regarding CTOs. That is not as good as the proper legal threshold that I and many others in this House and elsewhere would like to see, but it seems that this is the best that we are likely to get. Therefore, my amendment is a modest proposal designed to ensure that professionals pay some regard to the clinical history of a patient for whom they are considering a CTO. It does not have the effect of establishing a threshold for CTO that certain things must have occurred in the patient’s treatment history, such as disengagement with services leading to relapse, but it will stand as a reminder to clinicians that they should be basing their decisions about a person’s liberties on evidence and not on supposition. It is not as far as I would like to go in defining the law, but it improves the government amendment, and I hope that the Minister will be able to accept it. I beg to move. Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment 32, at end insert ““but do propose Amendment 32A as an amendment to Commons Amendment 32, and Amendment 32B as a consequential amendment to the Bill””.—(Lord Patel of Bradford.)