Mental Health Act 2007 (Consequential Amendments) Order 2008

My Lords, as the noble Lord, Lord Williamson of Horton, said, the order is not particularly contentious; it is, as its name implies, consequential. However, it would be wrong to allow the opportunity to pass without pointing out one or two important issues referred to in the order, although not dependent on it, and one or two things that are not in the order but which are raised by it. First, as the noble Baroness pointed out, we have the removal from the Act of the terms, ““impairment””, ““severe mental impairment””, ““psychopathic disorder”” and ““mental illness”” and the substitute of the term ““disorder””. I do not know whether legally that makes an enormous difference, but I fear that it tends towards imprecision in people's understanding of what they are dealing with. There is a fundamental difference between a person who, because of damage or disturbance at or before birth, is permanently incapacitated in their functioning mentally and emotionally in a way that is not repairable for their lifetime and a person who, for example, in their later teenage years, begins to show traits which they then continue to exhibit over the rest of their life, which we could call a disturbance of personality. That is, in turn, completely different from the acute disturbance where someone who has previously been well falls ill. That may be transient—for a few days; it may be relapsing; it may be chronic; it may be profoundly severe; it may affect the personality much more profoundly in the case of a psychosis than in the case of a neurosis. Those are differences and if by substituting the single term ““disorder”” we are encouraging people to ignore the differences between those things or to think them unimportant, we are not doing anyone a great favour. We will find that in 20 or so years’ time, people will come back to change the provision. Those are important differences, not just from the point of view of treatment but legally, because they make for a very different legal issue—so different that in the Northern Ireland Act in the early 1960s, the notion of personality disorder being included was unacceptable. Northern Ireland legislation was quite different from legislation on this side of the water because of a different view. I do not think that psychiatrists in Northern Ireland ever regretted that difference. Although moving to a single term may be unobjectionable, I have substantial reservations about it. I rather think that we will live to regret it and those of us who live long enough will live to see it changed. The second issue referred to by the noble Baroness is the replacement of ““approved social workers”” with ““approved mental health professionals””. There are substantial potential benefits in that change, in that it opens the opportunity for a wider number of professionals to be involved in some important decisions, but we must not forget why social workers were specified in the first place. The reason was that we wanted a professional who would not only understand the disturbance of the individual but have a sense of their social background. The person was meant to be there in loco of their relation. The wife, husband, mother or father was unable to be there for whatever reason, so the social worker was there as someone who understood not only mental illness and the illness of the person involved but the family and the family context. If we are now to have a range of professionals involved, many of them in their practical training will not necessarily have the same appreciation of those issues as social workers in their training. I know that training is being put in place for that, but we need to understand that this is not a part of the core professional training of some people who will be involved. That needs to be kept in mind. When we move further down the line to regulation of others, such as psychotherapists, there is no reason why they should not be included in this list, but the same problem will arise. We need to pay attention to that. The noble Earl, Lord Howe, also referred to the question of independent mental health advocates. That was a very important development. Noble Lords will all recall the serious discussion about problems of consent and compulsion in relation to treatment—especially, but not exclusively, community treatment orders. There was a general sense—not entirely erroneous, I think—that some of the pressure for the legislation that came before us came not from the health department but from another department where the issue was about justice and order in the community. Therefore, there was felt to be a very strong need to have independent mental health advocates. Why? Because those who are mentally ill are vulnerable and often need someone who can speak on their behalf, someone who is not detained, someone outside who has the freedom to access information. It is a little disturbing that we find that the compulsory elements in the community treatment orders and other legal matters are coming into place shortly, but advocacy is left to the side in commissioning guidance, effective training, budget allocations and the whole question of the relationship to CTOs. It is not unreasonable for us to seek some assurance from the Minister that that will all be attended to. Otherwise, we will have to come back in some other context to press the issue. It is entirely possible that the community treatment orders will be dealt with in a fashion that is helpful to patients and professionals and reassures families. The noble Earl referred to his confidence that nursing staff, when the patients are in hospital, or other staff, when the patients are outside hospital, will manage to conduct the legal form in such a way that the patients will be looked after properly, humanely and thoughtfully and not compelled inappropriately. I do not wholly share that confidence, not because I believe there to be a lack of professionalism or because I lack confidence in the integrity of my professional colleagues in psychiatry, medicine, nursing, social work and psychology, but because I am very aware as a practising psychiatrist of the pressures under which all these healthcare professionals are working. Those pressures are substantial and are not diminishing. Nor will they diminish in the next while, and I fear that they will encourage people to take short cuts and to allow the rather compulsory component inherent in the legislation to take pride of place. The noble Earl speaks about the nurse explaining everything to the patient. Of course that is what the nurse wants to do. Indeed, the nurse tries desperately to create the space in which to do it. However, when there is a shortage of staff and staff sickness, and agency staff are in—all the sorts of pressures that are the reality of mental health in-patient care—it is not so easy to be optimistic that it will be done in quite that way. Finally, the availability of the form was mentioned. It is not unreasonable that forms and information of various kinds should be readily available on the internet. This is not the kind of form that is likely to be abused or misused. There is no real reason why it should not be readily available. I can see many a junior doctor or other professional trying to get a form at 12 o’clock at night. Rather than scrabbling through filing cabinets and drawers to find out where the last one was put and finding that the secretary to the ward, if such a thing existed, had not replaced the last form that was used, they can just get on to the internet and download and print the form. I see no reason why they should not immediately be made available and accessible on the internet, with all the other kinds of information that were mentioned earlier. I applaud the Government for trying to ensure that more and more governmental information is available on the internet and that there are more and more opportunities for healthcare staff to use the internet. This is laudable, but here is an opportunity to put this into place. If patients could see what is on the forms, what would be wrong with that? Families could see what the form looks like and what information is asked for. There is no disadvantage in that. It is transparent and open, which is only to be welcomed.