Health and Social Care Bill

Baroness Meacher Excerpts

Monday 5th December 2011 Lords Chamber

[Baroness Barker]

My Lords, I shall speak to Amendment 237A, which is in my name. The justification for this legislation is that it does three things. It enshrines the Government’s stated policy that health services should be built around patients and that all decisions about patients should be taken with them. No decision about me without me: that is the phrase that we have heard. The second justification is that the Bill empowers clinicians and local authorities to commission health services that meet the needs of all groups in the population and reduce health inequalities. The third justification is that the Bill will enable the National Health Service to deal with the pressure on it because of demography and increased longevity among the population by being more efficient and more effective. Those are the justifications for the Bill. It is with that in mind that I go back to a discussion that many noble Lords here this evening had at considerable length during the passage of the Mental Health Act 2007. We were all on different sides of the Chamber then, which is not a point to be missed, I suspect.

The amendment seeks to include in the decision whether someone should be placed under a community treatment order—a compulsory order, as alluded to by the noble Lord, Lord Patel of Bradford—an assessment of whether someone who is suffering from mental illness may yet have capacity to make a decision about their treatment. To put it in lay terms, someone may be ill but still retain sufficient insight into their illness to make decisions about their treatment and in particular about whether they should be subjected to compulsory treatment. It is a similar, although legally slightly different, test of capacity to that in the Mental Capacity Act, with which noble Lords will be familiar.

It is the same provision that occurs in the Mental Health (Care and Treatment) (Scotland) Act 2003. Without going back over the ground that we covered in much greater depth in 2007, when the Scottish authorities prepared their legislation, unlike the Government of the time in England they did not simply go around a lot of different jurisdictions throughout the world where there are variants of community treatment order, pick elements that they liked and put them together. They went through a long and considered process, looking at how to bring their concept of a compulsory community treatment order into being. They did so with a greater degree of protection for people who might end up in effect being subjected to treatment against their will indefinitely. They included this concept of impaired decision-making within the Act.

Why should we revisit this decision? I was about to say that it was made by this House but it was not. This House agreed that we should include the concept of impaired decision-making; it was another place that removed it. The simple answer is statistics. When we debated what was then just a theoretical proposition that there would be community treatment orders, we were repeatedly assured by the then Government that they would be applied to only a very small group of people. Noble Lords will remember that it was envisaged at that time that there would be a few hundred people who were routinely referred to as “revolving door patients”—those patients who were in and out of acute care.

What has happened? In the first year of operation, 4,000 people—not 300—were put on to community treatment orders. There are now 7,000 people on them. I admit that we are still only a few years into the programme, but the number suggests that, first, the law is being much more widely applied than it was ever envisaged that it would be and, secondly, that practitioners are taking a precautionary approach to putting people on to compulsory treatment. In short, I suspect that a number of practitioners decide that the consequences of taking somebody off a community treatment order are potentially so hazardous to those practitioners that they are keeping people on indefinitely. That means that the situation that some of us foresaw whereby people were put on to community treatment orders from which they are unable ever to escape is happening. That seems to me to fly in the face of all the underpinning principles of this Bill.

At a time when we know that the resources of the National Health Service are going to be stretched and put under pressure in a way that they never were before, putting people on to treatment orders that they may not need is wrong. We know that lots and lots of people out there are suffering various degrees of mental distress, particularly those for whom their mental distress is not sufficiently serious that they are subject to compulsion, who desperately wish to get themselves into treatment and to see counsellors and therapists but cannot. Why take our already stretched resources and apply them to people who may not need them? I think that is wrong.

Why is this measure included in the Bill? I think it is unlikely that we will have a major revision of mental health legislation for some considerable time. In fact, there is a very good reason why we probably should not do so in that significant changes in mental health legislation happen not quite once in a generation but over a very long period when treatments and therapies have developed. Therefore, as I say, I do not envisage that we will have a major revision of mental health legislation for some years. However, I do not know whether that will be the case as I am not party to the Government’s proposals in that regard.

In the mean time, it appears that we are going to subject thousands of people to treatment that may be wrong—the only people in the country who are subjected to medical treatment against their will. It seems to me that we cannot let that carry on without looking at it in considerable detail. I suspect that the Minister is unlikely to want to go into this area at this stage, but if he cannot accept this amendment can he give a commitment that the issue will be kept under review and that we will return to it at some stage even though another large piece of mental health legislation may not be forthcoming?

[Baroness Meacher]

I apologise to the Committee and to the Minister for not being present in these debates. However, I cannot resist supporting the noble Baroness, Lady Barker, on this issue, which, as the Minister knows, we debated at length when the Labour Party was in government. I, for one, strongly supported the idea that people leaving hospital should not be put under a community treatment order, most particularly if they are no threat to others, are competent, can give consent and can make rational judgments. Large numbers of people under community treatment orders suffer with depression and the only persons at any risk at any time are themselves. At a time when we so strongly support the principle of autonomy and the right to some control over medical treatment in general, it feels completely inconsistent to throw all those principles away in this one area and say, “No, doctor knows best. Whatever you say and however competent you may be, you have no right to make a decision about the treatment”.

Having said that, I understand Ministers feeling very concerned about having the same principles apply if someone might—if they become unwell again—be a real, serious and major risk to other people. Therefore, my plea to the Minister is that he gives serious consideration at least to those who are no risk to anyone else, because the noble Baroness, Lady Barker, is right to say that while these provisions are on the statute book it is almost impossible for doctors not to impose these community treatment orders or for them then to rescind them because, if something goes wrong, they will be in the most appalling trouble. I will say no more but I wanted to add a strong voice to the comments of the noble Baroness, Lady Barker.

[Baroness Murphy]

My Lords, it will be no surprise for you to hear me say that I support all the amendments in this group. I do not really understand the need for the change in Section 117 on aftercare provisions. I am not quite sure what the tidying up is about or what the matter is with the existing arrangements. They are complicated to deliver but nevertheless seem to be utterly essential in the way in which they are currently framed. I would need to be convinced that there was some serious reason for changing them, as they apparently will be in the Bill.

As I understand it, we did not struggle with the provisions on independent mental health advocates during the proceedings on the 2007 Bill. While it is thought that parents could take the place of advocates in negotiating treatment, the proposals for independent mental health advocates for children are important in adding to the quality of services, and I support that.

The major thrust of my support relates to the amendment in the names of the noble Baroness, Lady Barker, and other noble Lords. It is my fervent belief that one day we will look back in this House and be horrified at how we structure our mental health legislation. The fact that we do not have legislation on capacity-based decision-making seems to be a terrible tragedy and is extraordinary, given that we see in Scotland that it is perfectly capable of being implemented safely. We should be at the forefront of developing legislation that destigmatises mental health services and allows people to make their own decisions about treatment.

We will have to wait a long time for that, but this amendment focuses on something that many of us predicted would be overused, and I regret to say that it is all too obvious that it is being overused for the wrong people. Yes, there are some people for whom community treatment orders should be used, but if we had legislation for capacity-based community treatment orders we would still be able to implement them safely. I strongly support the noble Baroness’s amendment.