'(1) The 1983 Act is amended as follows.
(2) In section 58(3), after first "patient", insert "who is liable to be detained under this Act".
(3) After section 58 of the 1983 Act, insert—
"58A Consent to treatment of community patients
(1) Subject to section 62A below, a community patient who has not been recalled to hospital shall not be given any form of treatment to which this section applies unless—
(a) he has consented to that treatment and either the approved clinician in charge of that treatment or a registered medical practitioner appointed for the purposes of this Part of this Act has certified in writing that the patient is capable of understanding its nature, purpose and likely effect and has consented to it; or
(b) a registered medical practitioner appointed as aforesaid (not being the approved clinician in charge of the treatment in question) has certified in writing that—
(i) the patient is not capable of understanding the nature, purpose or likely effects of that treatment; and
(ii) he has either no reason to believe that the patient objects to being given the treatment, or he does have reason to believe that patient so objects, but it is not necessary to use force against the patient in order to give the treatment; and
(iii) he is satisfied that the treatment does not conflict with a valid and applicable advance decision, or a decision made by a donee or deputy or the Court of Protection; and
(iv) it is appropriate for the treatment to be given.
(2) Where a patient who has been liable to detention under this Act has been administered medication for mental disorder to which this section applies for less than three months prior to becoming a community patient, the period mentioned in section 58(1)(b) above shall be read to extend for no longer than one month beginning with the day on which the community treatment order is made.
(3) The Secretary of State may by order vary the length of the period mentioned in subsection (2).
(4) Certification under subsection (1)(b) above may take place whilst a patient remains liable to be detained, but will not come into force until the responsible clinician discharges the patient from detention in hospital under the terms of section 17A(1) above.
(5) Before giving a certificate under section 58(3A)(b) above the registered medical practitioner shall consult two other persons, who have been professionally concerned with the patient's treatment, but of those persons—
(a) at least one shall be a person who is not a registered medical practitioner; and
(b) neither shall be the patient's responsible clinician or the approved clinician in charge of the treatment in question.
(6) In section 61(1), leave out "or "58(3)(b)" " and insert "58(3)(b), or 58A(1)(b)".
(7) In section 61(1)(a) after "20(3)", insert "20A(4)".
(8) In section 61(3) for "responsible medical officer" substitute "approved clinician in charge of the treatment in questions".
(9) In section 61(3), leave out "or "58(3)(b)" " and insert "58(3)(b), or 58A(1)(b)" ".
(4) After section 62(2) insert—
"(2A) Section 62A below shall not preclude the continuation of any treatment or of treatment under any plan pending compliance with section 58 above where a community patient is recalled to hospital or a community treatment order is revoked and
(a) the patient is capable of understanding the nature, purpose and likely effect of that treatment and has consented to it; or
(b) the patient is not capable of understanding its nature, purpose and likely effect of that treatment, but it is not necessary to restrain the patient in order to give the treatment.".
(5) After section 62 (Urgent Treatment) insert—
"62A Treatment on recall of community patient or revocation or order
(1) This section applies where—
(a) a community patient is recalled to hospital under section 17E above; or
(b) a patient is liable to be detained under this Act following the revocation of a community treatment order under section 17F above in respect of him.
(2) Subject to section 62 above, a patient to whom this section applies shall not be given any form of treatment to which section 58 applies without its certification under section 58(3)(e) following that recall or revocation.".
(6) In section 64 (supplementary provisions for Part IV), after subsection (2) insert—
"(3) In this Part of this Act, references to 'not capable of understanding the nature, purpose and likely effects of treatment' are to be read in accordance with the test established at section 3 of the Mental Capacity Act 2005 (c. 9).
(4) References to a donee are to a donee of a lasting power of attorney (within the meaning a section 9 of the Mental Capacity Act 2005) created by a the patient, where the donee is acting within the scope of his authority and in accordance with that Act.
(5) References to a deputy are to a deputy appointed for the patient by the Court of Protection under section 16 of the Mental Capacity Act 2005, where the deputy is acting within the scope of this authority and in accordance with that Act.
(6) Reference to the responsible clinician shall be construed as a reference to the responsible clinician within the meaning of Part 2 of this Act.
(7) For the purpose of this section, a person restrains the patient if he—
(a) uses, or threatens to use, force to require the doing of an act which the patient resists, or
(b) restricts the patients liberty of movement, whether or not the patient resists.
(8) References to a hospital include a registered establishment.".
(7) In section 119 (practitioners approved for Part 4 and section 118)—
(a) in subsection (2)(a) for "in a registered establishment" substitute "hospital or registered establishment or any community patient in a hospital or establishment of any description or (if access is granted) other place",
(b) in subsection (2)(b), leave out "in that home" and insert "there",
(c) after subsection (2) insert—
"(3) In this section 'establishment of any description' shall be construed in accordance with section 4(8) of the Care Standards Act 2000.".'.— [Angela Browning.]
Brought up, and read the First time.
With this it will be convenient to discuss the following:
New clause 14— Authority to treat community patients (Mental Capacity Act)—
'(1) The Mental Capacity Act 2005 (c. 9), is amended as follows.
Amendment No. 89, in clause 29, page 19, line 24, at end insert—
'(c) the following persons have been consulted about the making of the order under section 17A and the conditions to which the patient is subject specified under 17B—
(i) the patient;
(ii) the nearest relative of the patient;
(iii) any carer who the responsible clinician believes will play a substantial part in the care of the patient after he leaves hospital; and
(iv) any person with parental responsibility; and the responsible clinician has taken into account any views expressed by the person concerned.
(d) in this section "parental responsibility" has the same meaning as in the Children Act 1989 (c. 41).'.
Amendment No. 101, in page 19, line 24, at end insert—
'(c) after subsection (3) insert—
"(4) Subsections (1)(b), (c) and (d) above shall not apply if the treatment is electro-convulsive therapy.".'.
Amendment No. 96, in page 19, line 27, leave out paragraphs (b) to (d) and insert—
'(b) if the patient is not under Part III of the 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;
(c) it is necessary for—
(i) the protection of others from serious harm, or
(ii) the protection of the patient from suicide or serious harm to himself that he should receive treatment for his mental disorder;
(d) subject to his being liable to be recalled to hospital for medical treatment such treatment can be provided without his continuing to be detained in a hospital;
(e) the patient has on at least one occasion within five years previous to the present admission under section 3 refused to accept medical treatment for mental disorder;
(i) when appropriate medical treatment has been refused there has been a significant relapse in his mental or physical condition justifying compulsory admission to hospital; (whether or not there has been such an admission); and
(ii) medical treatment was then provided to him which alleviated or prevented a worsening of his condition, its symptoms or other manifestations of his condition.
(f) it is necessary for the protection of others from serious harm, or the protection of the patient from suicide or serious harm to himself, that he should be liable to be recalled to hospital for medical treatment; and".'.
Amendment No. 84, in page 19, line 37, at end insert—
'( ) The following persons have been consulted about the making of a community treatment order:
(i) the patient;
(ii) any person with parental responsibility;
(iii) any person who the responsible clinician believes will play a substantial part in the care of the patient after he leaves hospital but will not be professionally concerned with the after-care services to be provided to him; and
(iv) (where practicable) the person (if any) appearing to be the nearest relative of the patient. and the responsible clinician has taken into account any views expressed by the persons consulted.'.
Amendment No. 85, in page 20, line 9, at end insert—
'"parental responsibility" has the same meaning as in the Children Act 1989.'.
Government amendments Nos. 22 and 23.
Amendment No. 103, in page 20, line 33, at end insert—
'(8) A community patient or his nearest relative may make an application to the Mental Health Review Tribunal to vary or suspend any or all of the conditions imposed under subsection (3)(a), (aa), (c) and (d) above within the relevant period or if substantial variations have been made by the responsible clinician under subsection (4) above.
(9) In subsection 8 above "the relevant period" means—
(i) six months beginning with the day on which the community treatment order is made; and
(ii) the period or periods for which the community treatment period is extended by virtue of the report.
(10) Where application is made to a Mental Health Review Tribunal by or in respect of a community patient under subsection (8) above the tribunal—
(i) may recommend that the responsible clinician consider whether to vary or suspend any or all of the conditions imposed under subsections 3(a), (aa), (c) and (d) above; and
(ii) may further consider the patient's case if the responsible clinician does not make all or some of the changes recommended.
(11) Nothing in this section restricts the power to make applications to tribunals under section 66'.
Government amendment No. 24.
Amendment No. 87, in page 23, line 14, at end insert
'for a maximum of three years in total.'.
Amendment No. 100, in page 24, line 15, leave out clause 30.
Amendment No. 92, in page 26, line 10, leave out clause 32.
Amendment No. 97, in clause 32, page 29, line 2, leave out 'or 64G'.
Amendment No. 99, in page 29, line 19, clause 32, leave out from 'treatment' to end of line 22.
Amendment No. 74, in page 29, line 25, at end insert—
'(6) The fifth condition is that giving the treatment does not conflict with a refusal made on the patient's behalf by a person with parental responsibility in relation to that patient.'.
Amendment No. 86, in page 29, line 25, clause 32, at end insert—
'(6) The fifth condition is that a person with parental responsibility for the patient consents to the provision of such treatment.
(7) In this section "parental responsibility" has the same meaning as in the Children Act 1989 (c. 41).'.
Amendment No. 98, in page 29, line 28, leave out 'or 64E(6)(b)'.
Amendment No. 75, in page 31, line 16, at end insert—
'(2A) References to a patient who lacks competence are to a patient under the age of 16 years who lacks the maturity and understanding to be able to understand and retain, or to weigh in the balance, information relevant to the treatment decision, or to a patient under the age of 16 years who lacks the ability to communicate a decision by any means.'.
Amendment No. 76, in page 31, line 17, leave out 'accordingly' and insert
'in accordance with subsection (2).'.
Amendment No. 77, in page 31, line 17, at end insert—
'(3A) References to a patient who has competence are to be read in accordance with subsection (2A).'.
Amendment No. 78, in page 31, line 30, at end insert—
'(9) References to a person with parental responsibility are to a person with parental responsibility within the meaning of sections 2 to 4A of the Children Act 1989.'.
Amendment No. 79, in schedule 3, page 63, line 27, at end insert—
'(2A) After subsection (2) of section 72 insert—
"(2A) The tribunal may remove or vary any condition as to behaviour imposed on a community patient."'.
Amendment No. 90, in page 63, line 27, at end insert—
'(d) Where application is made to the tribunal by or in respect of a community patient and the tribunal does not direct that the patient be discharged, the tribunal—
(i) may recommend that the responsible clinician consider whether to vary or suspend any or all of the conditions imposed under subsections (3)(a), (aa), (c) and (d) above; and
(ii) may further consider the patient's case if the responsible clinician does not make all or some of the changes recommended.'.
I should particularly like to speak to new clause 13, but I shall also discuss new clause 14 and amendments Nos. 96, 92 and 98, which basically address the question of consent to treatment, particularly on the part of community patients. New clause 13 would provide simpler but safer provision for community patients who are not recalled to hospital, particularly when it comes to providing for a second opinion authorising doctor to examine a community patient in the same set of circumstances as a patient who is detained. In other words, we would like parity, because there are clear parallels between the two sets of patients. New clause 14 seeks a second opinion in respect of those who may be covered by the Mental Capacity Act 2005, but who none the less require treatment. The effect of the amendments is to require a SOAD to examine a community patient. The question is one of considering what happens to patients who are detained in a hospital, and of trying to implement legislation that will give parity to those outside hospital—and, in the context of this group of amendments, to those who are on community treatment orders.
At the moment, under section 58 of the Mental Health Act 1983, a detained in-patient who has already been on medication for three months—we have had some discussion about whether the period should be three months—faces one of two situations. If the patient has capacity to consent to the medication, and does consent, as confirmed by the responsible clinician, the responsible clinician specifies the medication on statutory form 2. If patients lack capacity to consent to medication or if they retain capacity but refuse it while they are in-patients, the responsible clinician must require a SOAD. The SOAD reads the patient's medical records, examines them, interviews a nurse and another professional who is neither a doctor nor nurse but is involved with the patient's care, discusses the case with the responsible clinician, then authorises what medication may be given, including details about whether or not it may be given by injection or only by mouth, assuming that an injectable form of medication is made. Details are given on the statutory certificate issued by the SOAD, so there is careful clinical assessment by someone with a specific medical background.
The SOAD assesses the patient's mental state, decides if they retain capacity, listens to their objections, if any, to any of the medication, takes note of the patient's history and response to medication, including adverse effects, notes the patient's physical health—something that we have discussed a great deal in our debates on the legislation—and explores, particularly with the other professionals, whether there are other non-medication interventions that are more appropriate or whether there is a reasonable alternative. All patients on a community treatment order, after the relevant time of three or four months, see a SOAD, who undertakes the same assessments, examinations and interviews as those for in-patients, but because the patient agrees to the treatment, it is self-evident that the SOAD cannot explore the reason why the patient is refusing and whether that is reasonable. The SOAD will issue a certificate authorising both the medication that can be given only with the patient's capacitous consent and medication that can be given should the patient lose capacity or refuse the original medication in future. We raised that problem in Committee. The Minister rejected our proposal, but there was quite of a lot of discussion of the need to write the certificate and what might follow under a certain set of circumstances several weeks or even months down the track.
The SOAD must issue the certificate, despite having no knowledge, nor being able to assess why, for example, the patient has suddenly become incapacitous or, while retaining capacity, has decided to refuse medication that they previously accepted. One must assume that patients on a community treatment order, as opposed to those who remain, or are detained as, in-patients, at the point at which the CTO is discussed, will agree to the treatment and suggested programme of intervention, which would be conditional on their having a CTO. All too often, however, things go wrong, so when something significant changes it is important to have a professional judgment by a clinician that is based on the facts, and that is what is at the heart of our proposals.
The new clause gives CTO patients exactly the same rights and safeguards as patients detained in hospital. Patients who are capacitous and consenting would have their treatment authorised by the responsible clinician. Patients who lack capacity, or who refuse treatment, would have the safeguard of the requirement for a SOAD authorisation based on an examination and assessments at the time the decision needed to be made, not based on a piece of certification ordered previously, which could be many months out of date. Safeguards for necessary and emergency treatments are included by amending section 62 of the Mental Health Act 1983 to ensure that patients do not suffer as a result of having to wait for a SOAD assessment. The Minister should consider that seriously. In Committee, we did not have enough time to go into the disparity between the appropriate treatment for in-patients compared with the treatment for people on a CTO. The CTO is proposed as an alternative for patients who hitherto would have been considered for in-patient treatment, so it is right that there should be parity in the way in which their conditions are clinically addressed, particularly after a significant change of circumstances or after a given period after the CTO is made, and there is a need for reassessment by a clinician. I therefore hope that the Minister will look favourably at the proposal, as she often does when such cases are put to her, perhaps with a little more detail and time than we had in Committee. She has generously tabled amendments on Report—not, I accept, across the board, and I would have preferred many more to be tabled—on issues where she believes that fairness and parity should prevail for patients, as they should be treated equitably. That is what is at the heart of our proposals in this group of amendments.
I have tabled amendment No. 74, and amendments Nos. 75 to 78, which relate to child patients in the community. I have also tabled amendment No. 79, which deals with appeal rights. The amendments seek to give effect to paragraphs 1.18 to 1.25 in the recommendations of the 15th report by the Joint Committee on Human Rights. Clause 32 governs the treatment of CTO patients in the community, without recalling the person to hospital. The basic principle is that a patient with capacity, or competence in the case of a child under 16, may be given treatment in the form of medicine for mental disorder only if they consent and if there is a certificate authorising the treatment from a SOAD. If the patient is capable but refuses treatment, that treatment may only be given without consent by recalling the person to hospital.
The JCHR received evidence from the Children's Commissioner for England and from the Royal College of Psychiatrists expressing concern about the provisions of clause 32 and their potential impact on child community patients. The principal broad criticisms were that the provisions provide insufficient safeguards in relation to treatment without consent, that they are complex, cumbersome and confusing, and that there is insufficient guidance in the draft code on how they are intended to work. More specifically, a child patient may be given medicine for mental disorder without consent in the community if they lack "competence". The same applies to an adult patient if they lack "capacity". The Bill specifically provides that decisions about capacity are to be made in accordance with the test in the Mental Capacity Act 2005, but there is no guidance as to how the competence of a child community patient is to be determined.
Adult patients have greater protection in relation to non-emergency treatment than children, as the treatment of an adult must not conflict with an advance decision which the person giving the treatment is satisfied is valid and applicable. Equally, for adults, but not for children, the treatment may not be given if it conflicts with a decision of a donee, of a deputy, or of the Court of Protection. The Children's Commissioner and the Royal College of Psychiatrists argue that that should be addressed by giving those with parental responsibility the right to be consulted over the treatment of a child who lacks competence. The European Court of Human Rights, in the case of Glass v. the United Kingdom, recognised the rights of the mother of an incapacitated child patient as his treatment proxy when he lacked competence. The JCHR therefore recommends that provision should be made for the involvement of those with parental rights in decision making about the community treatment of child patients who lack competence. It recommends that individuals with parental rights should have the same rights as donees with lasting powers of attorney or deputies to refuse non-emergency treatment on behalf of an incompetent child patient.
The children's commissioner and the Royal College of Psychiatrists have expressed deep concern, too, about the power forcibly to treat children and young people in the community when they actively resist treatment. They insist that guidance on the circumstances in which emergency treatment and the use of force are authorised should be clarified, and they say that further guidance is essential. We share those concerns. Treatment given without consent engages article 8 of the European convention on human rights, especially if there is an objection, and in order for such interferences to be in accordance with law, a person's position should be more clearly ascertainable than is currently the case, given the lack of specific guidance on competence.
Again, my right hon. Friend the Minister helpfully wrote to the Committee about the matter, but I am a little concerned about her approach. The position that the Government seem to be adopting, as set out in paragraph 26 of her letter, is that the effect of allowing a parent to refuse treatment would be to veto community treatment for that child, which may not be in the child's best interests, but she goes on to say that without the co-operation of the parent, supervised community treatment will not work. The Government seem to want to have their cake and eat it, saying that the parent should not have rights in these circumstances, yet expecting them to co-operate.
Without parental co-operation, it is unlikely that a treatment order in the community would be made in the first place. There is some inconsistency in the Government's position on the matter. When she replies to the debate, perhaps my right hon. Friend will give us more information about why she thinks parents should not be involved in the decision making about community treatment for their children.
Amendment No. 79 relates to paragraphs 52 to 56 of our fourth report. A patient subject to a community treatment order can appeal to a mental health review tribunal against the order as a whole, but not against specific conditions of the order. We think that that risks interference with articles 5, 8 and 13 of the European convention. The Government's response was that the need to obtain the agreement of an authorised medical health professional as to the making of the CTO and as to the nature of the conditions to be imposed provides protection against arbitrariness. We do not think that that offers much of a safeguard. Will my right hon. Friend be more specific?
The Mental Health Alliance supports the amendment because of the need for better safeguards against unreasonable conditions. It states that despite the Government's amendment, CTOs give clinicians wide powers to impose conditions on patients' behaviour and lifestyle—for example, that the patient should live in a certain institution, should be subject to curfew and should not engage in specified conduct.
The MHA says, and I agree, that it is important that any conditions are reasonable and that the patient has the power to challenge any requirements that are unreasonable. It makes the valid point that the responsible clinician and the approved mental health professional may not have met the patient before their crisis, and may not have in-depth knowledge about the patient's home life or the needs of their carers. That could lead to assumptions about the patient and unreasonable expectations of their carers as to supervision of the patient, transportation for treatment, police conditions and even housing for the patient.
The Mental Health Alliance gives a series of examples of conditions that could be unreasonable. A person could be required to live in a certain place where they might experience abuse or stigmatisation from neighbours. A person under a curfew might find that too restrictive if they find a job requiring them to work after specified curfew time. Although the supervising clinician may be sympathetic, the right to challenge such restrictions would hinge upon the good will of the clinician. That goes to the heart of the European convention. I hope my right hon. Friend will read our report on the matter in detail. It is not good enough to be able to challenge the order as a whole. It should be possible to challenge the conditions if they are specifically unreasonable. I urge her to consider the human rights implications of not providing such a right of appeal.
I shall speak briefly to amendment No. 89, in my name and that of Lynne Jones. It is similar to amendment No. 84, except in its positioning. It seeks to address what I still believe is a gap in the Bill—a gap in the details of consultation with patient, family and carers before a community treatment order is made.
I have read the Official Report of the Public Bill Committee and I know that attempts were made in Committee to plug the gap, but that was felt to be unnecessary. I agree with some of the Minister's comments and question others. She said at column 328:
"I believe firmly that, without proper consultation, supervised community treatment will not work". ——[Official Report, Mental Health Public Bill Committee,
She also agreed that consultation with nearest relatives and carers is important. I agree with her about that, but she went on to say that that should not be prescriptive, but part of routine good practice integral to the operation of the Act.
Again, I agree with the Minister, but that would be in an ideal world. I fear that we are not living in such a world. She and the House are no doubt aware of the recent Healthcare Commission in-patient survey carried out by the Picker Institute. Several questions were asked about communication between staff, patients and the families. It was an extremely large survey—140,000 patients in acute hospitals, not mental health settings—and there was a 59 per cent. response rate, which is incredibly high.
Question 36 put to that large number of in-patients was:
"Were you involved as much as you wanted to be in decisions about your care and treatment?"
On average across England for acute hospitals, 11 per cent. said that they were not involved. Question 38 was:
"If your family or someone else close to you wanted to talk to a doctor did they have enough opportunity to do so?"
The average across the country, 16 per cent., said no, they did not have sufficient opportunity. That was brought to my attention in my local paper because one of my local hospitals was one of the worst, with 25 per cent. saying that they were not given that opportunity.
Those were acute hospitals, where good communication is surely paramount. Poor communication, as many of us hon. Members know, is one of the commonest causes of complaints to us. Good communication is vital, especially when it involves curtailment of liberty or freedom of choice among mental health patients. I would like to have seen provisions like those in the amendment written into the Bill. Consultation cannot be left to routine good practice.
An attempt is made to address the gap in schedule 3 on page 65, but that gives a duty only to managers and it is a duty to inform, not to consult or discuss. Will the Minister deal with the matter in her remarks? The duty of clinicians—doctors and nurses—is to inform and explain things to their patients. Without that being written into the Bill, a large gap is left.
I shall speak broadly in favour of the Government position and against the amendments tabled by Angela Browning and her allies, largely because I have been going out and talking to people in Hackney—practitioners, users and residents who live alongside mental health patients in the community who are not always receiving the treatment that they need. I mentioned that on Second Reading and subsequently, but it has not been voiced enough in the debate. Some of those patients will be bounced back into hospital because their needs are severe. Some do not necessarily need to be in hospital, but they need an element of compulsion to deliver their treatment.
I am not blindly following the Minister's lead on the matter. I have come to my own conclusion that treatment on the basis of need should be what drives our treatment of people in need of mental health services. That principle pervades the national health service in other areas. The difficulty with mental health is that not everyone can identify their needs, and even if they can, they are sometimes unable, for various reasons, to adhere to treatment voluntarily.
I have spoken to users about this on a couple of occasions. I heard mixed views from them, but they did not rule out compulsory community treatment orders completely. Some said that they would rather have one as an alternative to hospital treatment because it would allow them to continue their family life and their work. Moreover, crucially, it is less stigmatising than removal to hospital, whereby someone is suddenly taken away from their home environment and family, and perhaps away from their workplace if they are able to hold down a job, for a period of time. That identifies them as a mental health patient, whereas in other circumstances they could say that they were in hospital for an operation, without having to go into specifics.
There was a common and clear view from the mental health service users to whom I spoke, thanks to Hackney Mind and its user group, that compulsion was entirely acceptable if the behaviour of somebody with a mental health problem led to police involvement. That was a universal view, admittedly not from a scientifically representative group of people, but from a group of mental health service users to whom I spoke in preparation for the Committee stage of the Bill. Interestingly—I hope that the Minister has heard this from users too—they were more concerned about consistency, quality and communications in relation to community care in general. The compulsion element was obviously part of our debate, but it was mainly about the quality of community services. If we are to have CTOs, we should also have better community services alongside them, so that someone does not have to have a CTO in order to get the services that they need, but can pick up services in the community as well.
Does the hon. Lady agree that if people are in the community under CTOs, there should be some parity with the level of service given to in-patients in hospitals? At a recent meeting in my constituency, when I asked 19 immediate carers of mental health patients whether they had ever seen the care plan for the person they looked after, only two of them had ever seen it, let alone been consulted about it.
I agree that everybody should be able to see their care plan and have some input into it. Perhaps there are some gaps in services. Certainly the crisis team that I spoke to in Hackney, which includes medical professionals and social workers, does a very good job in intervening at the stage of pre-admission to hospital. I applaud the work done by them, by my local mental health trust and by Mind locally in giving users a voice, but that process is sometimes underdeveloped because there is not a great deal of funding for it. However, much as I would love to have endless discussions about types of treatment and services—issues that are vital to my constituents—this measure is about the narrow area of compulsion and treatment. That must be properly resourced and organised if it is to deliver what is required.
One of the consultants in my area highlighted the part of the Mental Health Act 1983 that deals with requiring treatment "in hospital" for a mental health condition. As he rightly pointed out, adaptations through case history over the years since then mean that a patient does not need to be in hospital day and night. If one replaced the words "in hospital" with, say, "requires treatment", one would in effect allow for CTOs under current case law—and professionals have told me that in many cases they are already, in effect, in operation, in Hackney and elsewhere.
Under section 3 of the 1983 Act, extended leave after six months in hospital allows for treatment that could mean that someone goes back into hospital if they do not adhere to it. Under section 2, detention for 28 days is allowed, as well as special orders for people who have committed crimes and are released because it was an episodic crime. Section 41 deals with court restriction orders, whereby the person has to report to a psychiatrist every three months. That is far more restrictive than a CTO—although it does deal with far more severe cases. It can outline where someone lives, who they see and when to take medicine. I would be concerned if some of those matters were covered by CTOs. The Home Office enforces those restriction orders, and usually people placed under them have been in Broadmoor before the order was applied.
Having spoken to a number of professionals, and from what I have heard in the House and in Committee, I would guess that the Royal College of Psychiatrists is split about 50:50 on this. It is perhaps not surprising that its younger members and city-based psychiatrists tend to be more in favour of CTOs. Unfortunately, in constituencies such as mine we have a far higher incidence of mental health problems than we should, but we need to ensure that we are dealing with the situation in the most appropriate way. The same local psychiatrist whom I quoted earlier said:
"The idea that this upsets the relationship between patient and psychiatrist is more theoretical than happening in real life."
He deals with people on restriction orders and all the other types of leave of absence that I mentioned, and believes that instead of admission, a patient's relationship with their practitioner can be beneficial. The Royal College of Nursing, among others, is in favour of CTOs as long as they are administered properly.
An important issue about staff was raised in an earlier debate. It is important that in using CTOs staff are not asked to do something in someone's home that would put them at risk. We have to get the balance right. It is sometimes more appropriate for somebody to be readmitted to hospital, but it is often better for them to be in the community. However, it is not fair on people in the community who are living with somebody who is not taking their treatment to have to put up with such difficulties when they know, perhaps better than the patient themselves, that something needs to be done that may not be being picked up by the crisis teams.
Another local consultant described sectioning as an act of kindness, and said that it was bizarre to restrict it to hospital. I have come to that conclusion myself. I hope that Dr. Taylor is reassured by the amendment to which Members agreed earlier, which gives patients going through compulsory sectioning the right to an advocate to argue their case. I hope that some of the points that he raised will be addressed by that, although I have a lot of sympathy with the views that he expressed.
I am in favour of this because of the work that I have done, which shows me that we are only regularising what currently happens anyway. In some cases, we will provide normalcy for patients, beyond mental health issues, so that they can carry on with their normal lives. By happily agreeing to the advocacy amendment—I am delighted that the Government introduced that—we can put in safeguards to ensure that patients in any sort of compulsory treatment, be it in hospital or in the community, have somebody to help them to argue their case for them. That is vital, and makes this a much better measure.
The Bill does not solve all the issues that I, like my constituents—be they users, professionals or residents—think important, but it goes some way towards tackling them.
I certainly do. Without going into details, I am representing individuals in a couple of cases, one involving a victim's family and the other involving the perpetrator, where there was not that insight, and the individuals concerned would not have recognised that they needed treatment. In such situations the "revolving door" bounce back into hospital may still be necessary.
The Bill would not solve everything. I have moved to being in favour of something that I questioned when I first learned about it, because of the evidence that I have heard directly from people, which has shown me that the measure is being used already, but through different routes. If the Bill is passed tomorrow, it will regularise the current situation and give psychiatrists another method of supporting people on the basis of their need. Through the safeguards on advocacy, among other things, we will ensure that patients get many benefits.
Earlier, Sandra Gidley raised black and minority ethnic mental health issues, which I have also raised in the Chamber and in Committee. The huge inequalities in my constituency are one reason for my getting involved in mental health issues. The Bill is not the place to solve those problems, and I look forward to working with the hon. Lady, and Members of all parties, on tackling those gross inequalities further.
There is a serious problem of inequality. The number of black and identified minorities that make up the population of mental health institutions is disproportionate by a long way. Does my hon. Friend not believe that the Bill could tackle that a little more?
I have already said that one of the main reasons for my interest in this matter is the inequalities in Hackney. The Bill is narrow and primarily tackles compulsory treatment. It is not the right measure to deal with inequality. The Government have a programme about black and minority mental health issues, which is making some progress. At least we now record and recognise the important problems that exist.
Several people have asked whether compulsory community treatment orders would exacerbate inequalities that are already evident. However, I believe that the inequalities exist and are problematic, and that community treatment orders on their own will not increase that inequality. They may reflect the inequality that currently exists and we must accept that reality. We need to tackle the inequality at its root and ensure that it is not reflected in either detention in hospital or compulsory treatment in the community.
I agree with much of what my hon. Friend says, but one factor affecting the disproportionate number of black and ethnic minority people who are detained is reluctance to come forward early and access services. I take the point that we must tackle discrimination, but one problem is the culture within a society that does not trust the system. The Bill is relevant to that. We have heard many scare stories about the contents of the Bill, so we must tell the truth about that, but it is also important to have regard to the impact of the Bill on the stigmatising effect on people with mental health problems.
I agree that there have been many scare stories about the Bill, which have not helped the general debate in the wider community—or, indeed, in parts of the House. Conversation with several different groups in my constituency, including Derman, which represents Turkish and Kurdish groups, and the Chinese Mental Health Association, shows that there are many complex reasons for people not presenting with mental health problems. Sometimes it is to do with the culture of the community, and I admit that it is also sometimes to do with the way in which the system deals with people.
However, the Bill, with its narrow focus, will not solve those problems, whatever we do to it. If it were amended to the point of dealing with the way in which we provide services, it would be a different animal. It would be about provision of services, whereas it is about the legal rights of detention and compulsion. It appears that there is some consensus in the House about examining more deeply and radically the way in which we ensure that our mental health services provide treatment on the basis of need, and by ethnically blind means so that gross inequalities no longer exist. Black men in Hackney are three times more likely to suffer from mental health problems than anywhere else in the country—I forget my exact facts, but the instance is higher than average.
I look forward to working with hon. Members of all parties to try to tackle the matter, perhaps outside the Bill, but in the next mental health measure—my right hon. Friend the Minister looks weary at the prospect—in which we may consider direct provision of services and tackling inequality. The debate has at least helped air those matters to a slightly wider audience than those of us who live among people with such difficulties.
It is a pleasure to follow Meg Hillier. We are considering a huge cluster of amendments, and it is impossible to speak about them all—and I should not be encouraged to do that anyway.
Amendment No. 101 is an attempt to remove ECT from compulsory treatment, for which I have given sufficient good reason. I want especially to concentrate on amendment No. 96. Like many hon. Members, I am not against CTOs in principle. I know that they exist in many countries, including Scotland, and that evidence for efficacy is inconclusive. I also accept that they are difficult to assess because clients and jurisdictions differ worldwide.
As an alternative to sectioning, CTOs have some attractions. However, as an extension to coercive medicine, they pose some genuine dangers. Throughout the process, the Government have been unable to guarantee that the range of coercive treatment would not be increased. The object of critics is to ensure that the threshold of coercive medicine is not lowered unduly. Amendment No. 96 would do that.
Amendment No. 92 is the nuclear option, for when all else fails. Amendment No. 96 would introduce a set of eminently reasonable criteria, including impaired judgment, a record of refusal, and evidence of the medical efficacy of the treatment offered. The individual would have to be sectionable, and at risk to himself or the public. There would have to be evidence that treatment was available and the individual would, in theory, have to be recallable to hospital if he defaulted on his course of treatment.
At least four of the conditions are the same as the Government's proposal. The only genuinely crucial distinction between the Government's proposal and amendment No. 96 is that the amendment would require evidence that the voluntary route was unlikely to work, but that the compulsory route would work. That is a reasonable expectation. It could be argued that the threshold is higher than the current threshold in Scotland. The Scottish legislation has been much admired throughout our discussions, including by many critics of the Bill. Perhaps the amendment would provide for a higher threshold than exists throughout the world, wherever CTOs are used. However, it is not much higher than that that the Government have already set, and it is necessary to allay fears.
I share some of the views of the hon. Member for Hackney, South and Shoreditch, who emphasised the fact that many of the fears that have been expressed about the Bill are grossly unreasonable, unfair and uncharitable towards the legislators. I am genuinely surprised that many of those who, like me, are sceptical about the prospect of CTOs reducing suicide, believe totally and without much evidence that their mere existence will drive people away from seeking help. Worldwide evidence leaves one agnostic on both scores.
It we are to use CTOs for their avowed purpose, not simply as an extension of coercive medicine, the Government must explain why the threshold in amendment No. 96 is too high. Mere stubbornness will not do. The Government have a chore to convince hon. Members on this side of the Chamber that our proposal is unreasonable, given that it supplements theirs with reasonable expectations about the efficacy of treatment and the likelihood that the patient will not be dealt with effectively on a voluntary basis.
Early in his contribution, the hon. Gentleman referred to amendment No. 101 on ECT. I am not sure why he brushed over it so quickly. It is an excellent amendment, and perhaps he could go into more detail about his reasons for brushing over it. Has he received reassurances, or did he not speak about if for long because of time constraints?
I have spoken about the topic for a considerable time already; I am fearful of acquiring a reputation in the subject. The point that I wish and intend to make is that where compulsory treatment is in place, it should not entail anything as invasive or uncertain as electroconvulsive therapy. I believe that that is a general common-sense point that we can all accept.
Let me return in conclusion to what the hon. Member for Hackney, South and Shoreditch said. There is a real danger of decrying this legislation because it does not achieve everything. However, I would like to repeat, as an addendum to what I have said previously, that there are many people out there who are rattling around in society with very little insight into their condition, but they are not sufficiently dangerous or troublesome ever to meet the criteria to become eligible for compulsory treatment. My point is that we simply have no solution for those people at the moment. At one stage, they would gradually have drifted towards the institutionalised route, but now they exist in various forms and are by and large untreated.
Does the hon. Gentleman accept that the prospect of compulsory treatment might actually be a deterrent to some people, and indeed might deter their friends, family or neighbours from advising them to seek the help that they clearly need and deserve? Might we not end up with more people in an even more vulnerable situation as a result?
I share the view of the hon. Member for Hackney, South and Shoreditch that there is no evidence for that. There is a great deal of worldwide evidence of using community treatment orders, which we can look at to establish whether it does drive people away from ordinary means and mechanisms to secure treatment. I do not believe that the evidence is there, so although the point exists as an allegation, it remains largely just a fear at the moment.
I raised my concerns about community treatment orders in Committee and, with the indulgence of the House, I will do so again on Report. I hope that I have the Minister's indulgence and that she will not mind if I raise my concerns with as good grace as I can muster— [Interruption.] That sounds pretty good.
There are huge resource issues with CTOs. From the piles of briefing that we have read over the past couple of months, it seems that there are currently about 32,000 people a year receiving some form of in-patient hospital care. With the introduction of CTOs, it is estimated that the numbers involved could be in the region of 25,000 a year. The figure is disputed, but a number of organisations that submitted evidence as part of the consultation process and then as part of Public Bill Committee scrutiny believe that the threshold for CTOs in this country will be set at a far lower level than that in many of the other 70 jurisdictions. It is anticipated that about 50 people per 100,000—a significant number—will be eligible to be placed under CTOs in this country. I am well aware that the Minister disagrees with the figure and will probably come back with a counter-bid, but if we could work on the basis of 25,000 people for the next few minutes, I would be grateful.
First, we have to ask what will be the mechanism for delivery of CTOs. How will they be applied within the many diverse communities?
My hon. Friend will recall that when CTOs were first talked about in the Chamber, they were referred to by the rather unfortunate description of medical ASBOs.
Psychiatric ASBOs—and I am grateful to my hon. Friend, who is as astute as ever on the Front Bench and listening to my every word. If they are not to turn out as psychiatric ASBOs and if they are to stand a chance of working effectively, what about the resource implications, which my hon. Friend Mr. Walker has just mentioned? How will they manifest themselves and what will be the impact on other community-based psychiatric services?
My hon. Friend makes an excellent point. We are perhaps in danger of commanding mental health armies that do not exist—or do not yet exist. We need to be aware that huge resource issues are involved—we are talking about 25,000 people in England, which is about 500 for each county, and many will require additional support to what is already being provided by the existing excellent mental health service professionals. We thus need to explore the mechanism for delivery at greater length. Perhaps the noble Lords in the other place will do so when the Bill returns to them.
The hon. Member for Finsbury Park— [Interruption.] The hon. Member for Finsbury, North— [Interruption.] I mean Jeremy Corbyn, I am sorry. I wanted to leave Finsbury Park in, because it is one of my local train stations on the way through to the House. I apologise as no slight was intended. The hon. Gentleman made an important point about the concerns of black and ethnic minorities. I have a briefing from the Commission for Racial Equality, which is concerned that certain communities will be more prone than others to CTOs. Of course, we hope that that will not be the case, but we need to have procedures in place to ensure that the concerns of minority groups—and indeed the concerns of hon. Members—are properly reflected in the implementation of CTOs. We do not want to disfranchise huge parts of our community so that people feel that the Bill is yet another measure unfairly applied against them. That is not where we want to be.
I return to the point made by my hon. Friend Angela Browning. Who will actually deliver CTOs? Will it be community mental health nurses, or will there be CTO teams working together to ensure that the orders are applied and work fairly in the community? CTOs will have significant training implications; the orders will be new to this country so we shall want to be sure that they are subject to best practice and effectively delivered. Who will be responsible for providing training? How much will it cost and how will it be given? Will it be on the job or will front-line practitioners have to be taken away from their patients to spend time learning about the new techniques? I hope that the Minister does not think I am being churlish when I raise these concerns — [ Interruption. ] I am sure she does not; she is too generous.
I am rather perplexed by the hon. Gentleman's argument. By and large, the people we are talking about will already be in the mental system. Unlike the Scottish system, this proposed system is more "liberal" in that people have to be detained in hospital before they can be subject to a CTO, so has it occurred to him that some patients might think that a CTO would guarantee them services they cannot receive because they have been discharged and will be forgotten until the next time they exhibit difficult symptoms?
That is a very long question and I do not think I can remember every aspect of it, but I shall try very hard.
Of course, CTOs will be applied only to people who have been in hospital, but how long will the orders last? If 32,000 people are seen in hospital over a year, how many will be subject to CTOs and for how long? Will the orders last six months, a year, two years or three years, or will they be indefinite—almost life sentences? The hon. Lady makes an important observation, but I do not think I am being hostile in arguing my concerns. I am raising legitimate questions to which mental health professionals have the right to an answer.
Many of the people who would be subject to a CTO will be known to the mental health services, but we are not talking about business as usual; CTOs will introduce a whole new regime and a whole new system for dealing with people, and they will require a whole new set of skills.
The hon. Gentleman talks about a whole new system, but in my comments I highlighted the fact that there are already cases of people who are, in effect, on community treatment orders. They are admitted to hospital under a section and when they are released they have to undertake certain treatment or they will have to go back to hospital. Given such examples, it seems to me that the hon. Gentleman's argument falls apart.
Meg Hillier may have been referring to a recent meeting we attended with the Minister and some psychiatrists she had invited to the House. When I raised the existing section 25A orders under the 1983 Act, I was told that there are powers that allow people to go back to the community, but with the threat that if, for example, they come off their medication, they can be taken to a hospital—usually by the police. A psychiatrist told us, quite flippantly, that the powers were rarely implemented because the police do not want to co-operate. It is scandalous that powers on the statute book that could be used effectively are not being implemented.
My hon. Friend makes an important point. If such powers already exist, we should be asking why they have not been used more widely and why we do not consider using them more widely before introducing CTOs.
Does the hon. Gentleman know how widely the powers have been used? I was talking not merely about my own constituency but about a fairly common practice.
Actually, I do know. We covered the matter at some length in Committee and the view was that the powers had not been widely used. I think there were about 1,500 cases a year—
I do not know the exact number, but I raised it only last week with the psychiatrist whom the Minister brought before those of us who chose to attend her meeting. It was a good meeting, but I was interested to know why section 25A orders are not used more frequently—they have been on the statute book for a long time— and the psychiatrist said that it was because the police do not want to co-operate. The situation is extraordinary.
If we want section 25A orders to be used more widely, perhaps we should direct people to my hon. Friend's constituency, where they seem to be having some success.
One concern about CTOs is how they will be implemented at local level when there are many hundreds, if not thousands, of them. How will we know if people are not complying with them? Who will be there, day in, day out, monitoring their effectiveness? Will there be a spy camera in someone's bedroom—I am sure that there will not be—to ensure that they are taking their medication, or will people follow them to ensure that they do not go to the pub? Those are Orwellian possibilities, which I am sure will not happen, but the legitimate question is: how on earth will we realistically monitor 10,000, 15,000, 20,000 or 25,000 people on community treatment orders? If someone breaks an order, what will we do? Will we send them a warning letter, will they get a knock at the door, or will they receive a visit from one of their clinical team?
The hon. Gentleman should remember that many of the people who do not take their medicine as regularly as they should and so on are often lonely, isolated, have bad relations with their neighbours because of their condition, and do not receive sufficient support. If community care is to be effective, we need a much better system of local, individual, social support for those people.
The hon. Gentleman makes an excellent point. I recall that many years ago when I was a young man there was all-round support for the idea of care in the community, returning people to the community, and closing institutions down. It sounded extremely good, and in theory was extremely good, but when people got back into the community insufficient care was delivered. Perhaps—I am not an expert on this—we would not need to go down the road of CTOs if we had the proper resources in place to ensure that people with mental illness receive the care and the contact that they need.
It would be interesting to consider how we will measure CTOs' effectiveness. Again, I do not have the answer, but I am sure that the Minister has, and I am sure that she will tell us that she looks forward to coming to the House in three or four years—I look forward to my hon. Friend Tim Loughton coming to the House—to tell us how they are working. I hope that they will have achieved what people want them to achieve, and that we will have better delivery of services to the mentally ill in our community.
It has been pointed out that many of the people concerned are known to the mental health services, and that is so, but community treatment orders will often be compulsory, and that will require advocacy, which will have another implication on resources. We talked earlier about advocacy services, but if we are applying community treatment orders liberally around the country to people who do not want to be subject to them, I imagine that the demand for advocacy will be high. We must consider how we will meet that demand and who will meet it.
We have talked about using local charities, such as Powher, which operates in my constituency—I am not sure whether hon. Members are familiar with it—but empowering such charities to help people who are worried about being placed under a CTO might be a way forward.
Finally—I am sure that that will be a great relief to all hon. Members assembled here—how will we protect the confidentiality of patients under community treatment orders? Many of them will have jobs and places of work, and a CTO might stigmatise them. I would be interested to know whether, if someone is placed under such an order, there would be a personal contract between them and the relevant health service, or would the CTO be made known to a wider audience?
To conclude, if such services are to be delivered in Hertfordshire, the Minister will have to take a long, hard look at what is going on with our mental health trust. Its budget has been cut by £5 million a year—last year, this year and next year. That will have resource implications, which I hope that she will take into consideration. I tried to make that point with extreme good grace.
I want to speak briefly to amendments Nos. 84, 85 and 86, which I tabled.
Amendments Nos. 84 and 85 are a simple attempt to include consultation in the Bill. They aim to make sure that those who are involved or likely to be involved in supporting or caring for patients in the community—but not as professionals—are included in the consultation process. That is particularly important for children, as it will ensure that they benefit both from the skill of professionals and the informed support of those closest to them.
It is best practice to involve carers, but, over the years, many have complained that they are excluded from the care plan process, which means that the care plan often does not take into account the knowledge and skills of those closest to the patient. Imposing some types of condition on a patient may also have an impact on others living in the same household. From the point of view of the long-term success of the treatment, the provision seems particularly important. In addition, the rights of parents or carers could be affected.
In many cases, patient confidentiality is cited as the reason for not sharing information. That is a strange argument for a blanket refusal to consult, however, as the people denied information are often the very ones who will assist and support the patient. If part of a care plan is to treat a young person at home, it is important that the other people in the household, and possibly the patient, have some understanding of the condition. They do not necessarily have to know all the medical evidence, but there ought to be a process by which their needs can be taken into account.
Amendment No. 86 provides a similar provision for consultation when non-emergency treatment is proposed for a child community patient—a child under 16 who has been assessed as lacking competence to consent to treatment. If a person over 16 lacks capacity, or a person under 16 lacks competence, treatment can be given if certain conditions are met. The amendment provides greater safeguards for child community patients.
The Minister has suggested that for all practical purposes a CTO cannot be put in place for a child under 16 if parents do not consent to the treatment plan and its conditions. The amendment would ensure, however, that the rights of the parents are also enshrined in law, so that there is no ambiguity whatever when a CTO is set up. Parents of a hospitalised child for whom a CTO has been suggested need to understand what their rights are, with regard to saying yes or no to conditions that may be set to allow a young person home after treatment. A CTO for a child under 16, with conditions, places the whole family within the framework of those conditions. Parents should be consulted fully in that respect.
The preceding speeches proved to be rather like a series of wind-up speeches. I am sure that the Minister will carry on in the same way on probably the most contentious part of the Bill, which was debated long and hard in another place and in Committee.
The reference by Meg Hillier to another mental health Bill coming along was rather alarming. We have not had a mental health Bill for 24 years, but if we are not careful a couple are going to come along together—rather like double-decker buses. We are, however, almost at the end of the gestation of this Bill.
The Bill's provisions on community treatment orders are contentious. I shall talk primarily to amendment No. 96, as my hon. Friend Angela Browning skilfully expounded the virtues of new clauses 13 and 14, which we tabled. The amendment goes to the heart of objections about how CTOs have been placed in the Bill. We intend to put the amendment to a vote at the appropriate time.
We welcome the Government's climbdown on some of the most objectionable aspects of CTOs, especially on proposed new section 17B(3)(e), which contains the criteria whereby those under a CTO could be directed to "abstain from particular conduct." That would have been one of the most coercive pieces of mental health legislation in any jurisdiction. It would also have been wholly counterproductive and unworkable. I am glad that the Minister has seen that and withdrawn that part of the clause.
I am also pleased, to an extent, that the Minister has sought to rewrite the conditions of CTOs so that they must have a medical treatment benefit. That is welcome, but it does not go far enough, so we have tabled amendment No. 96, which is a reworking of the amendment that received overwhelming support across all parties in another place. We have listened to the debate and to some of the objections that the Minister and her colleagues made, and have adapted the amendment, we think, to make it more acceptable in dealing with the problems that she flagged up.
We do not want to dismiss CTOs out of hand, because they have a place. I was a member of the pre-legislative scrutiny Committee, which considered CTOs in great detail. It said that they have a place, but that they should be used for a closely defined set of "revolving door patients", as they are called, in closely defined circumstances. We have taken that line all along. However, the definitions that the Government have left in the clause are still far too broad, will capture too many people, leave too many unanswered questions, and are too open-ended. The amendment defines the criteria for CTOs in limited circumstances, which are not to include criminal proceedings, that are deemed to be necessary to protect the public, which we all agree with, and to protect the person, him or herself. That meets the Minister's concern that we were ignoring the plight of those with suicidal tendencies. That was never the intention. In any case, they are covered by other parts of the Bill.
A concern was also expressed in another place that we could end up issuing a lot more CTOs to people who could be deemed to be suicidal. That would overload the system and many more people would be under CTOs, with limited, and certainly questionable, benefit. We have responded to what the Minister said and have added to the definitions where it is necessary to protect somebody.
We have also adapted part of the amendment so that a person may have a CTO imposed on them
"if he has refused to accept medical treatment for a mental disorder" in the previous five years—effectively, somebody who has form. The second time that he comes under compulsion in the system, the responsible clinician may decide that a CTO would be appropriate.
We believe that there are good grounds for the five-year period. The wording is based on the New South Wales Mental Health Act 1990. Australia is one of the countries that operate a form of CTOs. There has recently been an extensive review of the Act, focusing particularly on CTOs, and there was no push to change the wording in the new Bill published last week. What we are suggesting has not been conjured up out of the air; it has precedents in parts of the world with experience of CTOs that are very different from the coercive variety that the Government are trying to introduce.
Our second criterion is that a CTO should be permissible when refusal of medical treatment has led to a significant relapse justifying a compulsory admission, whether or not an admission subsequently took place. The Minister suggested that someone might not have been admitted despite qualifying for admission, and that in such circumstances there would not be grounds for a CTO. Our view is that if compulsory admission was justified, that should count towards a CTO. The final criterion is for subsequent medical treatment to have alleviated the patient's condition.
We have thought a great deal about how CTO criteria can be honed to ensure that they affect a closely defined set of people in a closely defined set of circumstances and take account of many of the potential loopholes identified by the Minister, although I believe that most of her suggestions were unjustified. There is no empirical evidence for the efficacy of CTOs where they exist overseas. They exist in some 52 jurisdictions in Australia, New Zealand, Canada, the United States, Scotland and Israel. In 51 of those jurisdictions the scope is narrower than that of our own law: the definitions are narrower—as is the case in New South Wales—the criteria are narrower, or both. In North America, for example, the scope is substantially narrower. Typically in the United States, imminent serious harm to self or others is required before the powers can be used.
The long-awaited Churchill report, which the Government commissioned from the Institute of Psychiatry and were then reluctant to publish until the House of Lords had finished its deliberations, followed examination of no fewer than 72 reviews of the workings of CTOs in those six countries. It is the most comprehensive research ever conducted on CTOs. The first key point is that
"It is not possible to state whether community treatments orders...are beneficial or harmful to patients."
The Government have been proceeding with a new measure, pioneering new ground affecting new classes of patients, without being able to provide evidence that this arrangement works anywhere in the world where there is an equivalent system. On that basis, it is surely incumbent on them to make the merits of their case categorically and without doubt. We believe that they have failed to do that, which is why we have been keen to ensure that if CTOs are to be used, the circumstances are defined very narrowly. We need to know exactly who will be affected by them, and exactly how people get into and out of them. I shall say more about that when dealing with another amendment in this group. We support the principle of CTOs, but want them to work justifiably in practice. We want a restricted regime.
According to one body of thought—this is not scaremongering, as some have suggested—CTOs could be counterproductive. That is clear from some of the criteria in briefings received by all Members of the Committee. They state that there is a potential for harm to patients and to service provision for voluntary patients, which should not be discounted, and that
"CTOs interfere with a person's Article 8(1) rights to private and family life and need to be proportionate under Article 8(2). CTOs increase the numbers of people under compulsion. This brings bureaucratic burdens and adds to the public expenditure."
Given the comments we have heard about the resourcing of mental health services, there is a genuine fear that CTOs could eat up a substantial and disproportionate part of the mental health budget, to the detriment of other people who require the system on other levels.
The briefing goes on to state that
"In the 'blame' culture in which mental health professionals work there is a strong incentive to use extra coercive powers even where they might not be needed or desirable", on the basis that if somebody who could have been subjected to a CTO subsequently goes out and commits an atrocity, the flak will hit the professional concerned and he will be asked, "Why wasn't that person put under a CTO? It is available."
The briefing further states:
"There is no enthusiasm for the Government's proposals from any other professional group and they are feared by service users."
The hon. Member for Hackney, South and Shoreditch said that the Royal College of Nursing was in favour of CTOs. It is not. The RCN has questioned some of the criteria, but it is not a great advocate and proponent of CTOs. It and members of the Mental Health Alliance base their position primarily on the responsible clinician criteria, not on CTOs. Regardless of whether there are 75 or 80 members of the MHA, the vast majority of professionals, mental health charities, service users and others still have serious reservations about community treatment orders.
It is my good fortune that I have in front of me the question MH 54 that was submitted to the Committee. It is entitled "Further Memorandum submitted by the Royal College of Nursing". It says that
Under the subheading "Criteria for Compulsion", it adds:
"The RCN is clear that any treatment must be of therapeutic benefit to the individual or prevent deterioration of his/her condition."
I am sure no Member would disagree with that. That is what the RCN says; perhaps I should have quoted it in my speech, but I have done so now.
That is not a ringing endorsement of CTOs, nor does it endorse the Government position.
I do not want us to return to the situation that arose in Committee, when the Minister read out a brief that she had received but which no one else had, and it turned out to be a rather interesting misinterpretation of the position of certain groups. The fact is that she has been unable to produce any ringing endorsement of CTOs from any members of the MHA or any respected professional body, and neither has she been able to cite any reviews conducted anywhere else in the world that have found that they are efficacious.
Professor Thorneycroft of the Institute of Psychiatry was one of the co-authors of the Churchill report. He said:
"There are real risks not just of the unamended Bill having neutral effects but causing actual harm. The key such areas of harm, would be increased treatment avoidance by people with mental health problems, perpetuation, at least, of current disparities with respect to people from black and ethnic minorities who, as you know, are much more likely to be detained, and huge transaction costs from the implementation of CTOs. Without the evidence that CTOs work, not only would the money be ill-spent, but the opportunity to invest the relevant funds wisely in effective services would be lost."
We are all greatly concerned about the impact on black and minority ethnic communities. The hon. Member for Hackney, South and Shoreditch has greater experience of that than many of us because of the particular problems in her constituency among the BME community. A recent letter from the director of policy and public sector of the Commission for Racial Equality does not pull its punches. He says that the concerns it has
"primarily relate to the widening of the definition of 'mental illness', the impact of supervised Community Treatment Orders and the role of Approved Mental Health Professionals. It is our view that in each instance there is the potential for negative impact" for mental health users from different ethnic minority communities. Interestingly, he also mentions in that letter the Minister's selective use of available research. We have certainly seen instances of that.
My hon. Friend the Member for Tiverton and Honiton mentioned existing section 25A powers and section 17 supervised discharge powers. Section 17 leave of absence powers allow a compulsory patient to leave hospital and live back in the community, while still being subject to the powers of the Act. A section 17 patient can be recalled any time a clinician wishes, without the need for formal re-sectioning and the imposition of compulsory treatment. The provision is widely used. As the King's Fund said, this raises the question of whether a better understanding of section 17 powers might negate the need for supervised community treatment. So the point is that many existing powers are not being used. We should be investigating why they are not being used first, before bringing in a whole raft of new powers that are potentially very off-putting to people coming to the mental health service.
My hon. Friend was present when I asked about the application of section 25A orders. If it has been the case for many years that the police do not co-operate with them, one would have thought that an inquiry into the matter would have been undertaken. However, the problem seems simply to have fallen on deaf ears.
That is right, and at no stage have we had an explanation of why these orders are not working as they should, and as they can do under the powers already granted. They have been dismissed with the observation, "Oh well—these things aren't used. The clinicians don't like them." Why not? Surely we need to find out why the existing powers for professionals are not being used properly and are not working as they should, before the Government introduce new proposals for which there is no empirical evidence that they would be any better, let alone that they would work at all.
I thank the hon. Gentleman for being generous in giving way again. On speaking to consultant psychiatrists about the powers of release under compulsion, they made it clear that that point was reached through successive instances of case law and through pushing at the edges of what is possible within the current law. The two main psychiatrists to whom I spoke, and others, expressed the view that putting such a provision in the new Bill will make it clearer and make it easier for clinicians to use it; it would also make the situation for patients, including their rights, clearer. Perhaps that goes some way toward answering the hon. Gentleman's question.
If there was a very real need to achieve what these measures are trying to achieve, there would have been greater pressure to make the existing laws work before going down a new, untried and untested route.
There is a very real fear, which has also been raised, regarding the number of people who will be covered by these provisions. The Bill will inevitably lead to an increase in the use of compulsory powers, thus exacerbating a trend that was not anticipated back in 1983. By definition, those on CTOs cannot be detained in hospital—they are a different group. The Government assume that in the first year, 2 per cent. of detained section 3 patients in England and Wales might be discharged as CTOs. However, if the experience of Scotland is replicated—the point that my hon. Friend the Member for Tiverton and Honiton may have been getting at—whereby in the first six months, 23 per cent. of all hospital-based orders were varied upon patient discharge to a CTO, this will be a significant underestimate.
I thank the hon. Gentleman for giving way; he is being very generous. I rise to back up what my hon. Friend Meg Hillier said earlier. The existing powers do not enable us properly to do what we are doing through community treatment orders. They are being pushed to their limits, and many psychiatrists—I have discussed this issue on more than one occasion with psychiatrists—know that they are not really intended for the purpose that they are using them for. CTOs will give them that tool and that power, which will be used sparingly by professionals to do something that they know may well help them to treat their patients better.
I greatly respect the hon. Gentleman's position—he and I have been heavily involved in this issue from the early days of this legislation—but the fact is that the majority do not agree with him. The Royal College of Psychiatrists and the British Medical Association do not agree with him. There are some psychiatrists who do agree, including a predictable dozen whom the Minister troops out at every opportunity to talk to us, as if they represent the entire psychiatric field. But they are, with perfectly good intentions, in a minority—
It is unfortunate that Meg Hillier raised the current powers, because she has been hoist by her own petard on this issue. I have a letter from Professor Sarawan Singh, one of the psychiatrists who came to the meeting. I have talked to him, and he quotes a survey published in the British Journal of Psychiatry in 2000, which showed that 46 per cent. of psychiatrists responding were in favour of CTOs, 35 per cent. were not in favour and 19 per cent. were unsure. I do not know whether there have been any subsequent surveys, but it would appear that claiming that the majority of psychiatrists are against CTOs is not necessarily true.
They had every opportunity to influence the position of the Royal College of Psychiatrists and the Mental Health Alliance, but they have not been able to do so. I remember Professor Singh, when he came to that briefing with his 11 colleagues, together with Dr. Swartz, who was flown over at Government expense from the US—
Well, he was flown back at Government expense. I do not have a copy of the Minister's admission, but Dr. Swartz, from Duke university, North Carolina, was shipped in to speak alongside several other so-called professionals to tell us how wonderful CTOs were in North Carolina, but the CTOs there are rather different and he did not even know what sort of CTOs the Government are trying to promote in this country. For that, the Minister has admitted that we had to pay part of his airfare and his other travelling expenses, and that was a poor deal.
There are two other important issues. Amendment No. 103, which is coupled with amendment No. 90, provides the right for patients to apply to the mental health review tribunal to vary or suspend the conditions of their CTO or the period for which it is in force. The tribunal can therefore recommend that those conditions should be varied or suspended and can follow up the issue if the responsible commission does not make the changes that it recommends. That is important, because if we are to have some form of CTOs, we need flexibility so that they are sensitive to individual patient's needs, especially given the great powers to impose all sorts of conditions even within the diluted form of CTOs that we will now have. In the interests of balance and fairness, patients must be able to challenge the conditions of the CTO imposed on them.
Amendment No. 87 goes back to Genevra Richardson's original expert committee, and her reference to the lobster pot analogy. People can be subject to CTOs, but it is not clear how they can have them removed. CTOs can be renewed every six months or year, in perpetuity. If a CTO is still going after three years, it has clearly failed and is not the solution for the patient concerned, so we need to go back to the drawing board and review the best form of treatment for them. It is also natural justice that if we are to impose criteria that restrict the liberty of an individual, he or she needs to know how they can avoid getting into the lobster pot and, equally, how they can get out of it when their condition improves and they no longer need to be subject to the same strict criteria.
The lobster pot is a good analogy. It is easy to get into it, but difficult to get out of it, and that is why we need the checks and balances in amendments Nos. 103, 90 and 87. If we are to have CTOs, people must know how they can justifiably avoid them, or have them removed. That must be in the best interests of those people for whom a therapeutic benefit is intended and who need to trust the clinicians treating them.
We have had a thorough debate. I hope that I will be able to address all the concerns that hon. Members have raised and to explain why we reject several of the amendments that have been tabled. I also hope that I will be able to indicate that we have examined the matter carefully, which is why we have tabled specific amendments on the conditions of supervised community treatment. That has occurred because concerns have been raised about supervised community treatment during extensive debates in the House of Lords and in Committee.
Let me set out some of the background to supervised community treatment because it represents one of the most important changes that we wish to bring about through the Bill. We want to reflect what takes place in other countries and the fact that more services are now delivered in the community. We want services to support patients effectively so that they can live safely and successfully in the community in the least restrictive environment that can be achieved under compulsory treatment. Such an approach means that patients will spend less time in a hospital environment and more time with their families and loved ones. If we can achieve that without bringing any harm to patients and while protecting others from harm, we should certainly do so.
When we began this debate many years ago, we intended to allow patients who had not been detained in hospital at all to be on supervised community treatment, which is what happens in Scotland. Legislation was recently introduced in Scotland to provide that people can be detained if a clinician thinks that that is right and to allow people to undergo compulsory treatment in the community, irrespective of whether they have already been detained in a hospital setting. We accepted that there was a great deal of concern about that and listened to the views of the pre-legislative scrutiny Committee. We thus brought forward measures to provide that patients would have to undergo a period of detention in a hospital setting before they could be subject to a supervised community treatment order. Several clinicians criticised us for moving too far and said that we should not restrict clinicians' ability to allow patients to benefit from supervised community treatment if they felt that that was the right thing for the patient. However, we recognised that there was concern about the proposals.
Tim Loughton said that our CTO proposals went wider than those in any of the 52 jurisdictions that he cited. I think that that figure was produced by the Mental Health Alliance, but we have no idea of how its conclusion was reached. It is only in Canada that it is necessary for a patient to be detained in hospital before going on to a CTO. Even in those circumstances, the detention need not take place immediately beforehand, as it must under our proposals. I am thus at a loss as to where that information comes from.
In a number of jurisdictions where conditions are set, they can extend to specifying certain activities. We are talking about requiring someone to abstain from a particular conduct. If using illegal drugs exacerbates a person's condition, or if consuming large amounts of alcohol contributes to their mental health deterioration, such matters are set out in conditions. However, I shall deal later with requirements to abstain from particular forms of behaviour, because they are an important part of the changes made in our amendments.
The hon. Gentleman referred to existing powers available under the 1983 Act not being effective. The real problem is that those powers, which I believe come under the heading "supervised aftercare", do not allow immediate recall to hospital if the patient's mental health deteriorates to the extent that they become a danger to themselves or to others. I believe that Mr. Walker referred to the problem facing clinicians in having to go back to the beginning—to a completely new detention scenario—to be able to bring someone back to hospital. That is why those powers have not been used as often as they might have been.
I am not being argumentative and I hope that the right hon. Lady will take my question in the spirit in which it is asked. To tell a chronic alcoholic or drug addict who also has mental health problems that they will be readmitted to hospital if they break the requirements of their CTO to avoid drugs or alcohol seems unreasonable, unless one provides that person with support that enables them to stay away from their addictions.
I hope to be able to deal with that question, because it relates to the points that the hon. Gentleman made about the availability of services.
On whether there are clinicians who support the introduction of CTOs, the new mental health coalition, comprising Unison, Unite, the Royal College of Nursing, the College of Occupational Therapists, the British Psychological Society and the British Association of Occupational Therapists, which together represent 85 per cent. of mental health workers, acknowledges in its briefing that
"there are concerns surrounding the use of Community Treatment Orders, however we also believe that for a number of patients they can provide a real opportunity to be cared for at home. We welcome the Government's amendment that CTOs should demonstrate a health benefit".
Those organisations represent 85 per cent. of health workers, as well as clinicians.
The hon. Member for East Worthing and Shoreham may rest assured that I shall certainly apologise to Professor Swartz and the other clinicians who visited the House of Commons for his rather aggressive behaviour toward them. They had given up their time to come and talk to Members of this House and give their views on the Bill, and I felt that the hon. Gentleman dealt with them disgracefully.
I certainly apologise if the Minister thought that I was unduly aggressive. The point that I was making is that she trooped out a dozen or so professionals to give their view, which happened to accord with her view but not with the view of the majority of the professional bodies to which they belonged. She has to admit that Dr. Swartz, who was rather surprised to be here, did not actually know why he was here, or the Government's position on the legislation that he was supposed to be commenting on. One did wonder why the meeting was set up in that form.
The meeting was set up in that form because the hon. Gentleman asked whether there were psychiatrists who supported the Government's view. Naturally, in my desire to please him—that is usually the thought that is uppermost in my mind—I arranged for a number of highly regarded psychiatrists to come to the House of Commons. I am glad that he has changed from talking about "so-called" professionals to admitting that they were professionals.
I am grateful to my right hon. Friend for giving way, and I see my good friend on the Opposition Benches, Mr. Walker, wants to intervene, too. As the Minister knows, I have actually worked in primary care psychiatry, and when I was her Parliamentary Private Secretary—before I had to resign, sadly—we had good meetings with psychiatrists who were very positive about the Bill. In addition, she now has the support of Unison and the Royal College of Nursing. Basically, everyone who is a major player now says that this is a good Bill.
Scottish psychiatrists have had similar powers to those that we propose for many years, and I think that my hon. Friend would agree that if it was ever suggested at meetings that those powers should be removed because of concerns, they would think that it was an outrageous removal of clinical powers that have been extremely effective in helping patients to get treatment. That is what the Bill, and what supervised community treatment, is about. It is about getting treatment to people who need it, and who are in very vulnerable circumstances.
The Minister will have heard my earlier intervention on Dr. Pugh. Does she concede that it could be argued that there is a danger that people will be deterred from seeking any kind of help, support or treatment because they will feel that there is an element of compulsion? That could cause a negative reaction in the community. Additionally, there is the problem, which I am sure that she will address in her speech, of the disproportionate numbers of black and minority ethnic patients who end up with a degree of compulsion in their treatment.
My hon. Friend raises an important point about people being deterred from seeking treatment, but one reason why they are deterred is that they feel that they will have to spend a long time in a hospital setting. In actual fact, supervised community treatment is about providing the least restrictive setting that we can, if it is appropriate for a patient. It is about sending a clear message that when we talk about compulsory treatment, it does not always mean having to keep people in a hospital setting; we will allow them to return to their families, if that is appropriate. That is a different message, and it is less stigmatising and less discriminatory than saying that anything to do with compulsion has to involve a hospital setting. I think that the measures will not have the effect that my hon. Friend is talking about.
I believe, too, that there is a series of reasons why a disproportionate number of people from BME communities receive compulsory treatment. There are delays in people coming forward, because they do not access community services. Some of them take a different route into compulsion—for example, through greater contact with the criminal justice system. Very often, their relatives contact the police, but not health professionals. There is therefore a series of complicated reasons for that disproportionate number, which is why we have introduced the "Delivering race equality" programme, and why—I am afraid to use the phrase, but it is what they are called—we have focused implementation sites around the country, including several in London, which are looking particularly at the reasons why people do not come forward for treatment, and why a greater proportion of BME patients receive compulsory treatment. It is not as easy as saying that there are greater numbers because people are frightened to come forward—the position is much more complex.
May I tell my hon. Friend Jeremy Corbyn, too, that it is important to remember the fundamental principles? As a result of discussions in the other place, we have included in the Bill the points that should be addressed when we draw up the principles in the code of practice. One of those principles is the avoidance of unlawful discrimination, and we have made it clear in the Bill and the code of practice that racial discrimination must be tackled as part of the way in which clinicians and the measure itself operate.
The right hon. Lady has prayed in aid certain groups of professionals who are in favour of CTOs. It is true that last week she managed to find 11 psychiatrists who support the Bill, but the overwhelming majority of members of the Royal College of Psychiatrists oppose the measure. However, there has been no mention of the patients. Only today, Members received a letter in preparation for our debate on Second Reading from Mind, which represents patients and carers, which said:
"Mind remains opposed to CTOs. The case for their introduction has not been made."
It lists six key points to demonstrate why it opposes CTOs, and the Minister will be familiar with them. What about the patients?
Many surveys of patients in other countries say that they and their carers like the use of supervised community treatment, because it allows them to return to a less restrictive environment and into the care of their family. The Opposition must make up their mind: are they are just going to bang on about not liking CTOs or are they going to support them, while expressing concern about some of the conditions? To keep rehearsing the arguments, however, is not helpful. I will explain why we think that the measure is right, but if the Opposition oppose CTOs, it would have been better if they had not tabled amendments but agreed that that is their position.
I am not sure that I can be helpful, but I will not try deliberately to be unhelpful. I met an outstanding consultant psychiatrist near Bristol called David Thurston who, for years, has gone out to meet his patients in pubs, at home and in places where they feel comfortable. He is concerned about CTOs which, he believes, may well drive a wedge between him and his patients. He has a method of working that works for him and his patients: will he be obliged to use CTOs, or will that be left to his discretion?
I have made it clear over and over again—I hope that the hon. Gentleman acknowledges that, because this is exactly the debate that we had in Committee—that the power is available to clinicians if they think that it is the right thing to do. There is no compulsion on them to use compulsion—it is for them to make the decision, based on a range of issues, and if they think that that is appropriate. May I return to the reason why we believe that supervised community treatment can help to get treatment to people? There are 1,300 suicides every year, and 50 homicides by people who have been in contact with mental health services. We believe that supervised community treatment is vital to helping patients continue to take treatment when they leave hospital and to enable clinicians to take rapid action if relapse is on the horizon.
All hon. Members know of cases where relatives and carers have had to stand by while somebody's condition deteriorates—one of their loved ones who has a mental health problem, who has perhaps been discharged from hospital, and who may not stay in touch with mental health professionals and continue taking their medication. That person's condition deteriorates and they end up back in a hospital setting or worse, perhaps committing suicide or doing harm to others. That is what we are trying to avoid through supervised community treatment. The Opposition must decide whether they will back us on that or not.
If CTOs are so vital to prevent suicides or to prevent homicides, can the Minister cite a study anywhere in the world where CTOs have led to a reduction in suicides, a reduction in homicides or a reduction in hospital readmissions when people fail to take medication? I would be fascinated if she can, as no evidence exists.
As we have always said, it is difficult to prove a negative. We do not know what the outcome would have been if the circumstances had been different. The recent report on avoidable deaths looked at homicides and suicides by mental health patients. As I noted, there are about 1,300 suicides a year by people who have been in touch with mental health services. The confidential inquiry into suicides examines all those suicides individually.
We know, therefore, that in the first two weeks after discharge from hospital, if a patient is not taking medication, the medication is still in their body and is still effective. In the second two weeks, if somebody has stopped taking medication, the effect is felt. We know that 56 suicides took place during that time after discharge from hospital because the person had stopped taking their medication. Nobody is saying that all those suicides could have been prevented, but we know very well that that is a point at which not taking medication will have an effect, and there has been a direct effect on people who commit suicide during that time.
Why do we not owe it to those people and their families and carers to take steps to enable us to supervise people in the community to make sure that they take medication and stay in touch with health care professionals, if the clinician believes that that is the right thing to do? In the case of John Barrett, who had a long history of non-compliance with medication in the community, which as hon. Members know resulted in the dreadful killing of Denis Finnegan, the inquiry team commented that in its view,
"the only means of securing John Barrett's compliance with treatment as an out-patient would have been a community treatment order".
That was not available at the time.
I can certainly see that there is a role for CTOs. I did not get the impression that the psychiatrists at that meeting were lapdogs to the Minister, and I am quite astute at identifying people who toe the line. They said what their experience was. Contrary to the impression that may have been given by the last couple of interventions I have made, I have some sympathy with amendment No. 96. Will my right hon. Friend address the point that CTOs are meant for a small number of patients who lapse from their treatment and do not take their medication—the "revolving door" type of patient? What is the Government's objection to the amendment, which is about there having been one occasion on which a patient has refused to accept treatment and has subsequently deteriorated? We will have the discussion about impaired decision making tomorrow, so I will not go into that now.
Essentially, we do not believe that the amendment is necessary, given that we have moved so far in terms of supervised community treatment by saying that it must be preceded by one period of detention in hospital. That is completely different from what happens in many other jurisdictions, including Scotland. There have been suggestions about restricting that, which is what the amendment would do. As the House will know, in Committee we reversed the amendments introduced in another place on the criteria for SCT, which would have meant that it was not available to patients at risk of suicide, and would have limited it to patients who had had two previous compulsory admissions to hospital. I am glad that the Opposition have conceded that SCT can be helpful in preventing suicide, and that their amendment reflects that. However, I still strongly believe that the suggested restrictions would go too far and are unworkable in practice.
The Opposition are in effect trying to limit the availability of SCT. Amendment No. 96 would restrict health professionals' ability to make the decision, and make the scheme impossible to operate. It would demand an assessment of a previous relapse, including, crucially, whether compulsory admission to hospital would have been necessary, regardless of whether that admission had taken place. How is it possible for a clinician to look back over a five-year period and decide whether an admission would have been preferable irrespective of whether it took place? Are we asking them to say that the previous professional was wrong in not having admitted the person for compulsory treatment? How do they make an assessment about something that occurred as long beforehand as five years ago, without knowing anything about the precise circumstances?
That is complete nonsense. Moreover, what relevance would it have to the person's current circumstances? Under SCT, the clinician considers the patient's current circumstances and asks whether they would benefit from it. It is completely ridiculous to ask them to look back five years. That goes back to the issue of having compulsory admission twice. If we, as the House of Commons, were to try to restrict clinicians' ability to do what they think is right for a patient in any other circumstances, we would be wrong and the profession would be up in arms about it. The Opposition are trying to restrict the clinician's ability to make the decision. In effect, we would be saying to people, "Until you become ill again you cannot have supervised community treatment. Please go away, get ill again, and then come back and we can talk about it." It is almost impossible to imagine saying that to patients, or to relatives of somebody in these very limited circumstances.
The Minister is trying to caricature the amendment, which responds to matters that she raised in the first place. There are such things as medical records. She is giving powers to somebody who has never previously met a patient to place that patient under a CTO. She is also trying to claim that the amendment provides that the patient must have two previous compulsory admissions. That is not the case. The amendment refers to the second compulsory admission. She claims that the profession would be up in arms if we tried to impose such a provision on it, but why is it not up in arms at the moment? It does not agree with her about CTOs.
That is not true. I have already said that 85 per cent. of people who work in mental health services support our amendments.
The hon. Gentleman should read amendment No. 96. It states that
"the patient has on at least one occasion within five years previous to the present admission...refused to accept medical treatment for mental disorder...there has been a significant relapse in his medical or physical condition justifying compulsory admission to hospital; (whether or not there has been such an admission)."
It would be impossible for clinicians to operate under those conditions. Again, it would put obstacles in the way of people getting appropriate treatment when they needed it. It would stop people getting that treatment. Although the hon. Gentleman has perhaps tried to solve some of the problems that I pointed out to him in Committee, he has not succeeded.
Let us consider the proposal to try to place a time limit of three years on supervised community treatment. As hon. Members know, we have tackled the concerns that patients will find it hard to get off supervised community treatment by making a new requirement that an approved mental health professional must agree to every extension of a CTO. That is a far more sensible method of tackling the matter than imposing another arbitrary time limit. Under the hon. Gentleman's proposal, whether or not a supervised CTO remains the right action in the clinician's opinion, we would say no. That is wrong. It gets in the way of a clinician's ability to make the right decision.
Supervised community treatment contains many safeguards, including the ability to appeal to the mental health review tribunal and the power of the nearest relative to discharge someone from a CTO. Those are the safeguards and it is not for us to limit clinicians' discretion as the hon. Gentleman suggests.
Is the Minister genuinely saying that she would be happy if a patient were on a CTO after three years? Does not she believe that those orders are for the shorter term? She admitted to an average of nine months. If they remain in force after three years, serious questions should be asked about whether they are the right basis for treating the patient and we should reassess the matter. That is all we propose. We are not trying to restrain the clinician; we simply say that if orders are in force after all that time, they cannot be working.
The amendment does not provide for that. All the safeguards that I have outlined cover the matter. We should not try to limit clinicians' ability.
Amendment No. 100, which would remove clause 30, is disturbing. Clause 30 requires the responsible clinician to consider supervised community treatment whenever longer-term leave is in view for a patient. If leave of absence for longer than seven days is given to a patient, the clinician should consider whether supervised community treatment is the most appropriate way forward. Anxieties have been expressed about the use of leave of absence when people remain under compulsion but are in the community. We want to ensure that clinicians consider whether supervised community treatment is appropriate so that such supervision exists in the community. Opposition Members would obviously prefer patients to go on leave in the community for long periods without the structure and safeguards of supervised community treatment to support them. That is not the best means of managing patients' care and treatment. It is therefore unacceptable to try to limit the discretion that we are giving clinicians to determine what they do. That is the point: the powers give clinicians discretion; that does not mean that they have to act.
Further amendments tabled by Opposition Members and by Dr. Taylor are designed to impose requirements about consultation. I certainly understand the concern, which was also raised by my hon. Friend Lynne Jones. It is important for consultation to take place, but I would draw the attention of hon. Members to the statement of matters that should be considered when we are talking about principles in the code of practice—and that includes the involvement of patients in planning, developing and delivering care and the treatment appropriate to them. We believe that that principle should be at the heart of how the Bill is delivered.
I am afraid, however, that there are issues of confidentiality. It is true that there will be occasions in which it is not necessarily right to consult a range of people as the amendments suggest. It has to be the patient's right to say who they would or would not like to be consulted, and it would be extremely difficult for us to dictate that from here. These are matters for the code of practice, and I am quite prepared to look further into it and see whether it needs to be strengthened by pointing out that we want consultation. I will look again at that, and I will consult both my hon. Friends and other hon. Members in doing so.
"remove or vary any condition" relating to the patient's behaviour. Let me explain that we see CTOs operating through clinicians talking with patients about the conditions that would be contained within a supervised community treatment order. If the patient turns around from the word go and says that there is no way that he is going to accept any of it, supervised community treatment will not work.
It is all about a partnership between patient and clinician—but with the knowledge that if things go wrong, clinicians have the ability to bring someone back into hospital. They do not have to do so. If the patient says that he is not taking his medication because he believes it to be too strong and regards the side-effects as unacceptable, the clinician can say, "Well, let's try something else." It does not automatically mean that an individual has to come back into the hospital setting. It is, as I say, about a partnership.
I recognise the concerns in all these issues about the conditions of supervised community treatment. That is why we are bringing forward some substantial amendments, which place the focus firmly on the purpose of conditions and remove altogether from the Bill the examples of conditions that could be set for a patient. These put beyond doubt the fact that the conditions must be about either ensuring that the patient receives treatment, or preventing harm to the patient or others. That means that we have responded to the concerns brought forward in Committee and in the other place and made it absolutely clear what the conditions are about. Given that we have tabled these amendments to the conditions— [Interruption.]
I really need to go through these provisions and address some of the points that the hon. Lady has herself raised.
We believe that these amendments will clarify issues that we have discussed with clinicians and with members of the new mental health coalition who pressed for them, so I hope that hon. Members will not press their other amendments but will acknowledge that we must not limit the ability of clinicians or restrict any further supervised community treatment. It is all about getting treatment to people when they need it, and protecting patients and the public from harm.
As for the amendments that deal with children and supervised community treatment, we debated them fully in Committee, and although we are fully sympathetic to the spirit behind them, we really do not believe that they are necessary, given the package of safeguards that already exists for both adults and children on SCT.
Amendments Nos. 97, 98 and 99 would appear to prevent the treatment in emergencies in the community of children who lack competence. In practice, that would mean that in life-threatening situations, a clinician would not be able to treat a patient until they were brought back to hospital. A delay in treatment could spell disaster, so we must reject the proposals. They would mean that clinicians could not treat patients in difficult situations.
Amendments Nos. 75 to 78, tabled by my hon. Friend the Member for Hendon, attempt to prescribe on the face of the legislation what is meant by "competence". We believe that we have enough guidance to meet some of the concerns raised by my hon. Friend.
The problem with amendment No. 92 and new clauses 13 and 14 is that they would affect the use of SCT in practice. In attempting to deal with a concern about the review of medication by a second opinion appointed doctor, the proposals would, in practice, prevent a patient from being treated without delay on recall to hospital, and would thus render recall useless. That is unacceptable.
I cannot give way, because the debate has to finish soon.
Concern has been expressed that a SOAD may not be capable of approving the treatment that may be given on recall, but I must reiterate that the SOAD's review of medication in the community is not a mandate for the treating clinician to give that medication on recall come what may. The clinician will need to make an independent judgment about what treatment is necessary.
Amendment No. 101 would achieve a further restriction, preventing the use of ECT where it is necessary to prevent a serious deterioration in the patient's condition. We debated that point in Committee and I hope that Dr. Pugh recalls the arguments that were made, especially the example I gave of an anorexic patient, whose problems might not be immediately life-threatening, but could become so if the patient continued to refuse treatment. We cannot stand by and watch such things happen.
The Government's amendments on supervised community treatment address many of the concerns raised by my hon. Friends and the Opposition, and in the other place. Our proposals will make a real difference by clarifying the conditions; there must be a health benefit, or protection for the patient or the public. The amendments proposed by the Opposition would restrict the ability to use supervised community treatment, and would thus lead to harm to patients and, possibly, to the wider public.