Clause 40
Mental Health Bill [Lords]
11:00 am

Conditionally discharged patients subject to limitation directions

Question proposed, That the clause stand part of the Bill.

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Frank Cook (Stockton North, Labour)

With this it will be convenient to discuss the following:

New clause 17—Removal to hospital of persons serving sentences of imprisonment——

‘(1) The 1983 Act is amended as follows.

(2) In section 47 (Removal to hospital of persons serving sentences of imprisonment, etc) in subsection (1) leave out from “Secretary of State” to the end of the subsection and insert—

“must by warrant direct that that person be removed and detained in such hospital as may be specified in the direction: and a direction under this section shall be known as “a transfer direction”.’.

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Tim Loughton (Shadow Minister (Children), Health; East Worthing and Shoreham, Conservative)

New clause 17 has a little more detail than the last amendment and deals with the criminal justice system and the duty to transfer prisoners. Its purpose is to place duties on the Home Secretary about referral of people in the criminal justice system to a hospital environment.

Section 47 of the Mental Health Act 1983 allows the Home Secretary to order the transfer of a sentenced prisoner to hospital. Any such decision is made by the Home Secretary, based on reports from two doctors. We are concerned that prisoners with mental health problems are still not getting the specialist medical treatment they need. We are all only too well aware of the enormous problems with mental illness among the growing——and record——prison population. The hon. Member for Slough (Fiona Mactaggart) responded to a question about the state of mental illness in our prisons just over a year ago, when she was the Parliamentary Under-Secretary of State at the Home Office. She referred to what she termed the most comprehensive national assessment to estimate the incidence of metal illness in prison, published by the Office for National Statistics (ONS) in 1997. The survey indicated that 90 per cent. of prisoners have at least one mental health disorder, including personality disorder, psychosis, neurosis, alcohol misuse and drug dependence. The majority of that number have common mental health problems, such as depression and anxiety, much of which may be related to their imprisonment rather than being a contributing factor to it.

A smaller, but again much larger than average, proportion of those people have more severe problems, such as schizophrenia or some form of personality disorder. We have discussed personality disorder problems and I mentioned the dangerous severe personality disorder prison population. I know some of the experiments that are going on in the pilot scheme in Broadmoor, which I  visited, where prisoners with severe personality disorder have been transferred for a different sort of treatment and confinement.

Those figures are slightly out of date but none of us would expect there to have been a drastic improvement in the mental health state of the prison population. The annual report of the chief inspector of prisons in 2002-03 estimated that 41 per cent. of prisoners in health care centres should have been in secure NHS accommodation. It was discovered in 2004 that, at any one time, at least 40 prisoners assessed as needing a transfer to hospital had been waiting over three months for it to take place.

There is a large divide between the health care that individuals can receive in the community and what can be achieved in the prisons, owing to the difference in priority and limited resources. Surely, prisons are not the place for people with serious mental health problems as they cannot provide appropriate levels of care. I know other hon. Members have raised the subject on the Floor of the House. My hon. Friend the Member for Wealden (Charles Hendry) introduced a private Member’s Bill last year on the mental health of the prison population. Many members of the Mental Health Alliance are concerned that section 47 of the 1983 Act has not proved to be an effective mechanism for transferring prisoners with mental health problems to a hospital for specialist care.

In line with the recommendation of the joint parliamentary scrutiny committee, many people believe that, where two responsible clinicians agree that the transfer to a hospital is needed, the Home Secretary should be under a duty to order his or her transfer. That may help with the burgeoning prison population. Given that the prison population has gone over 80,000 and the Government and Home Secretary are now having to look at emergency provisions such as floating prisons and so forth, taking some of those people for whom it would be more appropriate to be in some form of mental health accommodation out of the prison population could come as something of a bonus to the Home Secretary, whoever he or she may be in a few weeks’ time.

11:15 am
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Chris Bryant (Rhondda, Labour)

Has the hon. Member had any conversations with his hon. Friend the Member for Monmouth (David T.C. Davies), who thinks that the prison population should be doubled?

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Tim Loughton (Shadow Minister (Children), Health; East Worthing and Shoreham, Conservative)

I have not and I do not think that is relevant to the amendment we are talking about. I saw an interview in the weekend newspapers with my hon. Friend the Member for Monmouth, who was wearing a special constable’s uniform.

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Rosie Winterton (Minister of State (Health Services), Department of Health; Doncaster Central, Labour)

The hon. Gentleman was wearing it.

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Tim Loughton (Shadow Minister (Children), Health; East Worthing and Shoreham, Conservative)

I was not wearing a special constable’s uniform. I will talk to the Minister about that afterwards.

The proposal was put forward by the pre-legislative scrutiny Committee. There is a genuine problem. The problem, as we were told in the pre-legislative scrutiny Committee, is that corrections and community corrections staff lack the training and expertise adequately to identify  mental health issues in prisons. In Committee, we were told by the Department of Health that there are plans to implement a mental health first aid training package to provide corrections staff with the skills to recognise symptoms and provide initial assistance and referrals, and that higher-level training is being considered for key staff, as there are few specialist mental health staff in the prison system.

In responding to the new clause, will the Minister comment on what progress has been made on that? I think that we are all aware that the state of mental health provision, and of health provision generally—[Interruption.] I am sorry if I am boring the hon. Member for Stockport, but it is an important subject. There are many people who are not receiving the treatment they need, and whose condition is stagnating and worsening in prison environments where appropriate care is not available. I note the Government’s earlier references to appropriate treatment. Appropriate treatment is not available in too many prison scenarios.

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Angela Browning (Deputy Chairman (Organising and Campaigning), Conservative Party; Tiverton and Honiton, Conservative)

Does my hon. Friend agree that when people who have been through the criminal justice system await the courts’ determination as to disposal, the courts often face difficulties finding not only prison places but appropriate places in mental health secure units? When the Minister replies, will she assist my hon. Friend by giving us the latest figures and any advice that she has received from the judiciary regarding its concerns about having to make inappropriate disposals due to the lack of facilities?

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Tim Loughton (Shadow Minister (Children), Health; East Worthing and Shoreham, Conservative)

My hon. Friend makes a pertinent point, and I know that the Minister will be keen to give us those figures straight away. On that basis, I shall sit down.

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Rosie Winterton (Minister of State (Health Services), Department of Health; Doncaster Central, Labour)

I agree absolutely that we need to ensure that proper mental health facilities are available in prisons for prisoners who require treatment, which is why we have created a number of new prison in-reach teams. It is also important that we have an appropriate mechanism for transferring prisoners.

I refer Opposition Members back to our discussions about treatability. One issue, particularly for women in prison, is that the treatability test has got in the way. As Jean Corston said in her report, there are far too many women with personality disorders in prison who are not being treated, which is why she welcomed the changes that the Government want to make to the Act to ensure that treatment is available, particularly to the women whom she highlighted.

I recently asked for a review of both high security and medium security facilities. It has not yet been published, but I assure Opposition Members that due to the number of beds in the NHS and those commissioned in the independent sector, I am quite satisfied that provision is adequate, particularly for medium security prisoners.

Sometimes the issue is how to handle transfers from prison. The new clause would address that, as it concerns the treatment of offenders who have been sentenced to prison and then need to be transferred to hospital for specialist treatment of a mental disorder. The new clause is particularly concerned with the  Secretary of State’s power to direct the transfer of prisoners to hospital, which will occur when the Home Secretary receives reports from two doctors that a prisoner suffers from a mental disorder that makes it appropriate to detain the prisoner in hospital for medical treatment. The Bill provides for appropriate medical treatment for that prisoner.

The Secretary of State’s current power to direct transfer to hospital is discretionary. Once a prison has notified the Secretary of State that a prisoner requires treatment in a mental hospital in which he may be detained, he is under an expedient duty to take steps to obtain medical evidence. If medical advice says that a transfer should be made, the Secretary of State must take reasonable steps to do so, but, importantly, in taking those steps the discretion enables the Home Secretary to take account of the situations of hospitals to which a direction might be made. It does not oblige him to transfer a prisoner to a hospital regardless of whether appropriate care or facilities are available there, or whether the hospital has a bed available, or whether it is able or willing to provide sufficient security for the public and other patients or for its staff.

The Opposition’s new clause would remove the Secretary of State’s discretion and oblige him to direct regardless of particular circumstances. I completely understand that, when a prisoner is suffering from a mental disorder making it appropriate for him to be detained in hospital, there is a need to act as soon as is practicable. However, I cannot see the value in directing prisoners’ admission to a hospital that has no facilities to provide the treatment that they might need or that cannot offer the security needed to enable a prisoner to be treated in conditions of safety. The problem with the new clause is that it holds out the possibility of both happening.

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Tim Boswell (Daventry, Conservative)

I am always slightly suspicious when the Minister gets into caricature territory; my hon. Friend the Member for East Worthing and Shoreham may attend to that later. Can the Minister make something clear for the record? She has now twice referred to the Home Secretary while also referring, variously, to the Secretary of State. Although I may be wrong, I had understood that under the new arrangements for the division of the Home Office, the responsibility in question will devolve to a Minister or Secretary of State for Justice and not to the Home Secretary. It is important that we get that point clear.

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Rosie Winterton (Minister of State (Health Services), Department of Health; Doncaster Central, Labour)

That is a fair point.

I want to emphasise some important security questions here. Obviously, many prisoners would be in an extremely vulnerable situation, but it is also true that others may be extremely dangerous. We could be talking about people who have committed quite serious crimes; any prisoners in such circumstances would need to be transferred to hospitals with an appropriate level of security.

I completely understand that the spirit of the new clause in seeking to ensure that people get treated quickly. That is why, as I said, we now have 102 NHS mental health in-reach teams in prisons. This year, for the first time, all prisoners should have access to those services. Some 360 more whole-time equivalent staff  are employed on mental health in-reach provision, which actually exceeded the NHS plan for 300 to be in post by the end of 2004. More than £60,000 has also been invested over three years on mental health awareness. The hon. Member for East Worthing and Shoreham talked about basic training in that area for prison staff, which has commenced and should be reaching 20 per cent. almost as we speak.

11:30 am
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Tim Loughton (Shadow Minister (Children), Health; East Worthing and Shoreham, Conservative)

Before the Minister rattles off all this stuff, can I take her back to the safety angle? I am sure that she will be able to give me the figures, but is it not the case that fewer people have escaped from high security mental hospitals than from prisons? Her contention that a mental hospital would in some way be less secure than a prison for potentially dangerous people therefore does not hold. Is that not right?

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Rosie Winterton (Minister of State (Health Services), Department of Health; Doncaster Central, Labour)

No, because I was talking not necessarily about escapes, but about security levels for staff and other patients in respect of someone who is potentially quite dangerous. Security is needed not only for the individual, but for staff, visitors and other patients.

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Tim Loughton (Shadow Minister (Children), Health; East Worthing and Shoreham, Conservative)

If we are not discussing escapes, would not the Minister agree that the degree of specialism and skill that is available in high security mental hospitals to deal with someone who might be dangerous either to himself or to other patients is much better and more appropriate than in prisons? The reasons are the ones that have been stated, which are connected with shortage of skills and facilities. Whether the issue is escape, safety of inmates, public safety or the safety of the individual, there is better provision in hospitals than in prisons, so the Minister’s argument does not stand up.

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Rosie Winterton (Minister of State (Health Services), Department of Health; Doncaster Central, Labour)

I do not necessarily agree. The whole point of the new clause is that it would remove any discretion to consider the type of hospital that might be appropriate. That is exactly the problem with it, and that is why I have said that retaining the discretion is important.

It might reassure the Committee to know that there has been a significant decrease in the number of people who wait more than 12 weeks for a transfer from prison. In the quarter ending December 2006, 38 prisoners had been waiting for that period, compared with a figure of 62 for the quarter ending June 2005. The figure for December 2006 is obviously still too high, but I hope that it indicates that the changes that we have made are working.

The new clause seeks in a sense to use legislative powers to direct the allocation of NHS resources, and could almost result in more favourable treatment of prisoners, because hospitals would be obliged to accept them. That would put the issue in a rather different perspective—one that would not necessarily be favoured by the public.

I understand that the Opposition are trying to highlight the need for people to be transferred quickly  from prison to hospital, if transfer is appropriate, but there are some very good reasons why removing discretion from the Secretary of State would not be appropriate, among which are matters of public safety. I hope that the hon. Member for East Worthing and Shoreham will therefore withdraw the amendment.

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Frank Cook (Stockton North, Labour)

Order. Hon. Members on both sides are making references to an amendment. We are not discussing an amendment; we are discussing the matter of clause stand part.

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Tim Loughton (Shadow Minister (Children), Health; East Worthing and Shoreham, Conservative)

I was under the impression that we were discussing new clause 17, Mr. Cook.

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Frank Cook (Stockton North, Labour)

The hon. Gentleman has permission to discuss that new clause, but the Question before us is whether clause 40 should stand part of the Bill.

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Tim Loughton (Shadow Minister (Children), Health; East Worthing and Shoreham, Conservative)

So on the basis that new clause 17 is grouped with the matter of clause stand part, I have leave to discuss it.

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Tim Loughton (Shadow Minister (Children), Health; East Worthing and Shoreham, Conservative)

Thank you, Mr. Cook. I was a bit confused by what the Minister said, and I think that she got a bit confused too. Having said that the issue was not escapes, which endanger public safety, but behaviour and risk in prisons, where the public are not present, she ended up by saying that it was all about public safety. It seems to be a rather circular argument.

Having reeled off a load of supposed improvements to facilities in prisons and mental hospitals, the Minister then said that actually there might be a problem if such facilities are not available in a hospital to which the Secretary of State for Justice is obliged to make a transfer. Either things are getting better, in which case the services are available, or they are not, in which case we must do something about it, but at the end of the day it is about the health and well-being of patients who have serious mental health problems that are not properly catered for in prisons. They are in the logjam that exists in the prison system at the moment.

I do not take the Minister’s point about removing all the Secretary of State’s discretion. The new clause would place a duty on the Secretary of State. If given proper, investigated medical advice that a person should not be in a prison but a hospital environment, surely the Secretary of State for Justice should pay close attention to that advice. He or she will not be expert enough to give opinions on the person’s medical state. Surely there are few if any grounds on which the Secretary of State for Justice should challenge a medical opinion given by a person legitimately entitled to give it. Why, all of a sudden, is the Secretary of State for Justice as competent to give medical opinions as a highly qualified Secretary of State for Health would be?

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Rosie Winterton (Minister of State (Health Services), Department of Health; Doncaster Central, Labour)

But the new clause would specifically remove the following words:

“the Secretary of State may, if he is of the opinion having regard to the public interest and all the circumstances that it is expedient so to do”.

It would remove the reference to the public interest and replace it with a provision that the Secretary of State

“must by warrant direct that that person be removed and detained in such hospital as may be specified in the direction”.

There is no discretion whatever. The new clause would, in particular, remove the reference to the public interest, which is the discretion.

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Tim Loughton (Shadow Minister (Children), Health; East Worthing and Shoreham, Conservative)

It would remove the discretion to judge whether that individual has a problem, because the Secretary of State for Justice is not medically qualified, competent or expected to judge somebody’s medical condition. That is why we have experts to do so. That is what the legislation is all about.

As for the discretion, the Secretary of State

“must by warrant direct that that person be removed and detained in such hospital as may be specified in the direction”.

My understanding is that the provision does not say exactly which hospital. It would be inappropriate to dump a prisoner in a mental hospital that is ill-equipped, unsuitably insecure or otherwise deemed inappropriate.

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Tim Boswell (Daventry, Conservative)

Does my hon. Friend agree that the Minister’s reservations about the new clause might well reflect the fact that, despite her protestations about the adequacy or improvement of mental health services for prisoners, there might be no such hospital in the category to which a particular prisoner could be referred? In other words, there might be a covert agenda whereby the Secretary of State for Justice is aware that the system is failing a person’s needs and does not wish to be obliged to make a warrant for their redirection to hospital.

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Tim Loughton (Shadow Minister (Children), Health; East Worthing and Shoreham, Conservative)

This is a probing new clause, because it clearly recognises the problems that the Minister acknowledged when she claimed that improvements were occurring in transfers from prison to hospital. I do not see any incentive, other than to clear some prison space for people whom it is more appropriate to be place there, for the Secretary of State for Justice to do something about it. Does the Minister have figures for the number of people for whom there was medical recommendation for transferral to a hospital environment and about whom the Home Secretary, as it would be at the time, said no for whatever reason, because he had discretion to do so? What reasons would have been given that those people should not be transferred? If the reason was that the alternative was less appropriate, as the right hon. Lady suggested, were the decisions reviewed after some weeks or months when a more appropriate placing was available in a high security mental hospital, for example?

As it stands, the Secretary of State for Justice can say no and does not have to do anything about it. Should there not at the very least be some conditions whereby if he says no, he must then reconsider the decision after several months? If the medical determination is still the same, there should be a greater incentive or compulsion for him to ensure that an appropriate hospital space can be found by reference to the Secretary of State for Health, whose system clearly is not providing the services that are required for that different form of patient.

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Rosie Winterton (Minister of State (Health Services), Department of Health; Doncaster Central, Labour)

If the medical advice is that the Secretary of State recommends transfer, he does not question that advice. The discretionary bit is where the transfer is and that he can wait until an appropriate hospital is available. As I said, the numbers waiting for more than three months have decreased by about 33 per cent., so the discretion is about where and when, not the medical opinion in the first place. I hope that I have been helpful.

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Tim Loughton (Shadow Minister (Children), Health; East Worthing and Shoreham, Conservative)

I was not challenging that, but it is pointless unless the Secretary of State for Justice has to do something about it, such as decide whether to challenge the medical opinion or not to challenge it and say that a suitable place was not available. The consequences would be the same, as a person in prison, who should not be in prison, should be in hospital. That is the key point. What is the incentive for an appropriate space to be found as soon as possible? There does not seem to be any comeback.

The Minister gave us some indicative figures of how delay has been reduced when she referred to 12 weeks. Does that cover everyone? Is everyone automatically obliged to be transferred if the medical opinion is that they should be transferred, even if it takes three, six, nine or 12 months? Will that recommendation still be live? I do not know how the system works at the moment, but my reading of the mechanism suggests that there is a potential problem with having no incentive to get on with it.

I come back to the Minister’s point about public safety, and appropriate security and skill levels in a hospital. Surely, if she has confidence in the services that her Department is offering to mental health patients and those in secure mental hospitals who happen to have come through the criminal justice system as well, she should not be making the case that, in some way, they might be better off in a prison than a health environment. That is the clear implication of what she is arguing, especially by praying in aid public safety, which does not apply in prisons because there are no members of the public there.

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Angela Browning (Deputy Chairman (Organising and Campaigning), Conservative Party; Tiverton and Honiton, Conservative)

Let us suppose that it is recognised that there is a need for someone with a custodial sentence to be referred to a hospital placement. When that does not take place, there is the obvious problem of managing the person in the prison. I represent a Devon consistency and I have visited Dartmoor prison from time to time. It is my limited experience that mental health patients, which is how I describe them, are often confined to the medical wing on a semi-permanent basis because that is the most containable place in which to manage them.

If that referral is never made, however, the prison has to deal with the patient on an ongoing basis. When that person is discharged from prison, they could be sent back into the community with no proper contact with mental health services. They may have contact with the probation service, but not mental health services.

11:45 am
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Tim Loughton (Shadow Minister (Children), Health; East Worthing and Shoreham, Conservative)

My hon. Friend is right. That is not in anyone’s interests. It is not in the interests of the prison, which has its hospital wings jammed up with long-term mental health sufferers, or of other prisoners who, in  severe cases, may be at some risk from those people. In addition, the medical qualifications or training of the prison staff may not be sufficient to deal with such prisoners compared with those in a higher security hospital, which clearly provides the appropriate treatment.

We have raised some legitimate concerns about the mechanics of the transfer from prison to hospital. I am a little muddled by the Minister’s logic. I do not think that the amendments are as constrictive as she is suggesting in terms of taking away all of the discretion of the Home Secretary—or the Secretary of State for Justice as it is now. The Minister may want to reflect on some of our points.

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John Pugh (Shadow Minister, Health; Southport, Liberal Democrat)

Surely the weakness of the Government’s position as it stands is that it does not preclude the indefinite absence or postponement of treatment if the case is sufficiently severe for there to be a public interest. For example, nobody could find a good hospital for Ronnie Cray, so he was left to fester in prison. Also, in the case of terrorists, the Government would never find a public interest case for hospitalising such people even if hospitalisation is medically recommended. Therefore, the weakness of the system is that it allows the indefinite absence and postponement of treatment without any review of that decision.