Mental Health Bill [Lords]

Public Bill Committee, 8 May 2007.

Further written evidence to be reported to the House:

Clause 14

Rosie Winterton (Labour, Doncaster Central)

I beg to move amendment No. 42 in clause 14, page 9, line 13, leave out ‘approved clinician’ and insert ‘person’.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss Government amendments Nos. 67, 68, 45, 69 and 70.

Rosie Winterton (Labour, Doncaster Central)

The amendments make technical changes to part 4 of the Mental Health Act 1983 and correct minor inconsistencies that have crept into the legislation. They are intended to maintain the independence and integrity of the second opinion appointed doctor who, under part 4, has various roles in safeguarding the patient by providing a second, independent opinion on certain issues.

Government amendment No. 42 will ensure the independence of the SOAD, who certifies treatment under section 57 of the 1983 Act, among other things. The section covers psycho-surgery and other treatments referred to in regulations and is used only a few times a year. None the less, it is important to ensure that the legislative framework is robust. At the moment, a person in charge of a section 57 treatment who is not an approved clinician could technically be appointed as the SOAD who certifies the treatment. However neurosurgeons who perform psycho-surgery, for example, are unlikely to be clinicians. In practice, it should not happen, but to put it beyond doubt, the amendment makes it clear that the person in charge of a section 57 treatment cannot also be the SOAD who certifies the treatment.

Government amendments Nos. 67, 68, 69 and 70 deal with the SOAD’s duty to consult two other people who are professionally concerned with a patient’s treatment before deciding whether treatment under sections 57, 58 or 58A should be certified. We want a variety of views to inform the SOAD’s decision. At present, the 1983 Act requires the SOAD to consult one person who is a nurse and one person who is neither a nurse or a doctor. The amendments will ensure that neither of the people consulted can be the patient’s responsible clinician or, where different, the person in charge of the treatment. Of course, the SOAD will discuss the treatment with the person in charge, but by placing a duty on the SOAD to consult other professionals, we will ensure that a broad range of perspectives are taken into account.

Government amendment No. 45 makes it clear that the person in charge of a section 57 treatment can carry out all the statutory functions pertaining to that role, which includes providing a report to the Mental Health Act Commission on the treatment of a patient’s condition, whether or not they are an approved clinician. There is an anomaly at the moment in that such functions can be carried out only by an approved clinician in charge of the treatment, but there is no requirement for the person in charge of a section 57 treatment to be an approved clinician. Of course, the Bill will require an approved clinician to be in charge of any part 4 treatment under powers given by the 1983 Act without having to consult. No professional may be in charge of a treatment that they are not required to deliver.

In summary, the amendments will iron out inconsistencies in part 4 that would otherwise flow from the introduction of the role of approved and responsible clinicians.

Tim Boswell (Conservative, Daventry)

Good morning and welcome to the Chair, Mr. Cook.

I accept the spirit of the Minister’s presentation of the amendments and her wish to have a Bill that is technically well founded. I am not seeking to overturn the substance of the amendments, but I have two questions that perhaps go a little wider than they might seem. They are designed to get her assurance about the equality of position and equality of influence of the two people responsible for the process.

If a person is not a medical practitioner, but is some other person responsible for treatment, will the Minister assure us that their views will be treated in good faith and on an equal basis, and that there will be no question of what may be termed professional brow beating? I am sure that the various professionals will say that neither they nor their representative bodies ever wish to brow beat, but there must be an equality of treatment regarding those two persons, wherever they come from, in relation to the certification process.

My second question relates to amendment No. 45 and the issue of reporting, and what happens if a person is not a clinician but is in charge of the patient and their reporting. Can the Minister explain how such a report will deal adequately with matters of professional judgment relating to the clinical process itself? Presumably, as I think she has sought to explain to the Committee, a person with care of the patient will know them as well as anybody could, and they have a perfectly legitimate judgment to form and to pass on about the nature and progress of the treatment. Again, I do not think that we want a situation in which there is any inequity in treatment. I am referring here to my first comment about whether or not the person who is responsible for signing is or is not qualified in a particular discipline and also to whether they are producing a report that is not informed by the professional stamp of a registered clinician in that field. Those are minor comments, but it might be useful to have the Minister’s reassurances on them—or reflections on them if that is easier.

Rosie Winterton (Labour, Doncaster Central)

I certainly hope that there would not be professional brow beating in those circumstances. As I have said, the amendments are largely technical and aim to preserve the independence of the second opinion appointed doctor. Perhaps it will help if I clarify the fact that the legislation has never required an approved clinician to be in charge of section 57 treatments. To answer the hon. Gentleman’s question, those treatments can be given only with the patient’s consent. It is the patient’s consent that gives the authority to deliver the treatment, and not the powers of the Mental Health Act 1983. Therefore, we think that it is unnecessary for the treatment to be in the charge of a clinician approved to apply the Act. I hope that that answers the hon. Gentleman’s question.

Angela Browning (Conservative, Tiverton and Honiton)

I, too, have a question. I think that I know the answer, but I just want reassurance from the Minister.Section 57(1)(a) of the 1983 Act involves

“any surgical operation for destroying brain tissue or for destroying the functioning of brain tissue.”

Will the Minister confirm that other legislation in respect of the removal of tissues from the body would apply to that particular process in that part of the Act?

Rosie Winterton (Labour, Doncaster Central)

As I said, section 57 treatments can be given only with consent. Is the hon. Lady making a cross-reference to the Human Tissue Act 2004 and some the capacity issues regarding decisions that can be made on behalf on an individual? Section 57 treatments cannot be given to somebody without capacity. The issue of removal of tissue for use in research would not apply in the way that she is talking about. If an individual does not have capacity,section 57 treatments cannot be applied.

Clause 24

Tim Loughton (Conservative, East Worthing and Shoreham)

I beg to move amendment No. 62, in clause 24, page 14, leave out lines 32 to 37 and insert—

‘142D Registered Medical Practitioner

Where a clinician undertakes an assessment of a minor’s needs in accordance with section 142B he shall consider whether the registered medical practitioner responsible for the minor’s care and treatment in hospital should have special experience in the diagnosis or treatment of mental disorder in persons under the age of 18.’.

I welcome you back to the Chair, Mr. Cook, after the weekend break. This is an important clause about children and young people, one of the six main-ticket items that attracted significant amendments and debate in the House of Lords. I notice that in response to Government amendment No. 21, which would have omitted all of clause 24 but has not been selected, you have allowed a clause stand part debate as part of the second grouping. Therefore, I shall not speak generally about the clause now, but reserve my comments until that debate.

Amendment No. 62 is a small technical amendment reflecting the Government’s concerns about the amendments tabled in the Lords. It is an attempt to allay those concerns and improve the original Lords amendment. The addition of clause 24 has placed three main considerations in the Bill to ensure that age-appropriate treatment, decisions and care settings are provided for children and young people, who I think all Committee members will agree are particularly vulnerable among those suffering from mental illness, and who have not been receiving mental health care that is as good and appropriate as they need and are entitled to receive.

I think that the whole Committee agrees that we need to improve the situation. The argument between the Government and the Conservatives is whether that should be done on a statutory basis or through service provision. We think that the Government have had quite long enough to make those improvements through service provision, and that that has not proved effective. That is why we agree with the Lords amendments, which were supported by Members from a number of different parties, including some Labour Members of the other House. We need to legislate on age-appropriate care in the Bill in order to give a fairer deal to children and young people in mental health services.

Tim Boswell (Conservative, Daventry)

Does my hon. Friend not agree that such an approach would also strengthen the Government’s position in relation to any legal challenges under the European convention on human rights? Article 3, for example, which deals with torture or inappropriate detention, could be interpreted as raising concerns in that area.

Tim Loughton (Conservative, East Worthing and Shoreham)

My hon. Friend is absolutely right, as ever. There is a serious human rights question mark over the absence of age-appropriate treatment in the original Bill, and as he mentioned, inappropriate detention is subject to legal challenge. We know from the Minister’s earlier deliberations that she is keen that the Bill should not become a bean feast for lawyers,so the amendment is partly an attempt to finesse the new sections to give clarity to practitioners and avoid challenge in the courts.

New section 142D to the 1983 Act, under the heading “Clinical supervisor”, was originally added to the Bill to stress that if a patient is a minor under 18, the responsible clinician should be a child and adolescent mental health specialist. The point that we have been making for a long time now is that there is a shortage of child and adolescent mental health services within the mental health service and that children and young people can have particular needs that are distinct from those of adults. That is why we are concerned about the number of children and young people being placed in adult mental health acute wards.

In retrospect we feel that the wording of newsection 142D could be slightly restrictive. I know that the Government objected to our insistence that a CAMHS registered medical officer should always be used for a child. In circumstances in which a young person between the ages of 16 and 18 is placed appropriately on an adult ward, it would be more appropriate for them to have an adult RMO. The important thing is that the young person gets treatment as soon as possible and that the treatment is as appropriate as possible. Amendment No. 62 would therefore give some flexibility to the clinician undertaking an assessment of a minor’s needs in accordance with new section 142B, which was added in the House of Lords, and leave it up to him to consider whether the registered medical practitioner responsible for the minor’s care and treatment in hospital should be a child specialist.

We have listened to some of the Government’s objections, just as we hope they will listen to ours. We know that the Government want to ditch the whole clause in any case, so this issue will be something of a problem if they get their way on that. Nevertheless, we believe that clause 24 is a useful addition to the Bill. It brings useful safeguards for young people, and amending new section 142D would take away one of the Government’s objections as to constraining the clinician who will be responsible for the young person on an adult mental word. That is the purpose of this amendment. I hope that the Minister will take it in the positive, constructive spirit in which it is intended and feel able to accept it.

John Pugh (Liberal Democrat, Southport)

I generally support the amendment, with one small caveat. I do not think that we want to move towards an absolute apartheid in the delivery of services. I should like to illustrate that point by referring to local services in my constituency, where there are well developed early intervention teams for adults. One thing my CAMHS specialist told me is that when early intervention is required in the case of children, it is not provided simply because it is called an early intervention scheme for adults, so children get no service or intervention of any kind. With that caveat, I think that everything that the hon. Member for East Worthing and Shoreham has just said is entirely sensible and laudable, and can be supported.

David Kidney (Labour, Stafford)

I welcome you back, Mr. Cook, after the short break.

May I ask the hon. Member for East Worthing and Shoreham a question about emergency situations? In the clause as it stands, the phrase “except in an emergency” appears in new sections 142C and 142D, which is reassuring, but it does not appear in new section 142B. I should like the hon. Gentleman to explain why he feels that emergency situations would be covered if the words did not appear in the provision. In the amendment, which would replace new section 142D with a new set of words, the words “except in an emergency” disappear. It refers back to new section 142B, which, as I said, does not contain a caveat about emergencies. Are we making the legislation stricter rather than more flexible with regard to emergencies?

Let me explain why that point matters. In my preparations for dealing with the Bill, I saw two sets of psychiatrists in two places in my constituency. On both occasions, the experienced psychiatrists said that they were sure that in their careers, they had saved the lives of youngsters by admitting them to an adult ward because a children’s or young persons’ ward was not available. They were sure that those youngsters would have committed suicide had they not admitted them. In making well intentioned legislation, I should not like us accidentally to overlook the opportunity to save some lives.

James Duddridge (Conservative, Rochford and Southend East)

Will the hon. Gentleman define what he means by an emergency? My fear would be that the definition could be so wide as to encapsulate everything; perhaps that was a good reason for the removal of those words.

David Kidney (Labour, Stafford)

Obviously, an emergency is an instant admission to save somebody from committing suicide. One of the psychiatrists who said to me that he was sure that he had saved lives by admitting—inappropriately, as it were—patients to an adult ward, also said, “For goodness’ sake, do not legislate for new duties and requirements for us without providing us with the resources to comply.” That is an important message for us all to bear in mind as we legislate.

Tim Boswell (Conservative, Daventry)

Will the hon. Gentleman confirm—I have only just noticed this myself, as we are now alluding to provisions inserted only this morning—that the matter will be one for regulation and that it is important that the regulations are sensitive to the kind of extreme situations that he has properly described?

David Kidney (Labour, Stafford)

I am seeking from the hon. Member for East Worthing and Shoreham the assurance that there is not a danger that the amendment would provide insufficient flexibility to cope with an emergency.

Tim Loughton (Conservative, East Worthing and Shoreham)

This has been a short and sweet debate, Mr. Cook.

Frank Cook (Labour, Stockton North)

It has not finished yet.

Tim Loughton (Conservative, East Worthing and Shoreham)

Would you like me to answer the question for the hon. Member for Stafford? I shall answer his question; I do not think he was intervening on me, as I had finished. That is why I am slightly confused. I completely concur with his concerns, which is why the understanding that emergencies override everything was implicit in how the new clause was added in the Lords. He is absolutely right to say that, regarding the admission of a young person in an emergency because of severe self-harm or because they may do harm to others and have a severe psychotic incident, the key thing is get them into a safe, secure environment where professionals can take care of them. If a CAMHS specialist happens not to be available at that time, clearly that should not be a hindrance to taking the young person to a place of safety and dealing with them. In no way would the emergency scenario be moved down the hierarchy because of the amendment.

Tim Boswell (Conservative, Daventry)

Does my hon. Friend not agree that the converse also applies? Although emergency admissions may have taken place for the well founded reasons that he has described, there is a concern that if there is a shortage of resources in child mental health to accommodate a person’s rehabilitation or recovery from the psychotic incident, the Government’s proposal may not sufficiently tie down the obligation to provide that care.

Tim Loughton (Conservative, East Worthing and Shoreham)

My hon. Friend is right. Emergency provisions should not be a substitute for appropriate and sufficient services for the young person. I completely agree with the exhortation of the professional who was cited by the hon. Member for Stafford: we should not legislate without giving due resources to ensure that the services are available. The services, not the legislation per se, will save such a young person and, one hopes, put them on the road to recovery. The services must obviously take precedence.

The amendment would refer to the opinion of the clinician the question whether a CAMHS specialist is warranted in a particular case. It does not propose that it must be a CAMHS specialist in an emergency or non-emergency situation who orders the sectioning. It would give a degree of flexibility to the clinician. The fears of the hon. Member for Stafford should therefore be allayed. Certainly that point will become clearer in the clause stand part debate, in terms of establishing the emergency hierarchy. However, I can certainly assure him that in no circumstances is it intended that there should be any different treatment for emergencies.

We can begin to debate later how long such an emergency lasts. For example, if children and young people in an emergency are sectioned to an adult ward, which is not appropriate, should that situation continue for longer than 48 hours? I think that, after such a delay, it is right that there should be a statutory requirement that the young person should be transferred, where appropriate, to age-appropriate accommodation.

We can debate later what constitutes an emergency—a subject raised by my hon. Friend the Member for Rochford and Southend, East just now. However, I would have thought that 48 hours was a reasonable period before alternative and more appropriate accommodation could be found. I hope that the hon. Member for Stafford will be happy to support our amendment.

Rosie Winterton (Labour, Doncaster Central)

It will be obvious, by the fact that the Government have made it clear that we oppose clause 24, that we will also oppose amendment No. 62. However, I also want to make it absolutely clear at this point—I will elaborate a little later—that that does not mean that we do not agree that this is an important issue. Although we do not agree with the clause, we agree with the principle. I hope to explain later not only what we are doing to improve services, but why there are some particular problems at the moment with the clause. I take on board the fact that Opposition Members have tried to tackle one fault in the clause, as the amendment would introduce some flexibility into the arrangements.

Doug Naysmith (Labour, Bristol North West)

Although this debate has been short, I think that it has covered the main points relating to the amendment. My hon. Friend the Member for Stafford made clear the reasons why the Minister is not going to recommend the acceptance of the amendment and the clause. However, the Minister must be aware, as we all are, that there is widespread anxiety about the use of adult psychiatric wards for children. I know that a commitment has recently been given to eliminate within two years the use of adult psychiatric wards for children under 16. Will she undertake to examine this matter again, and perhaps propose a new measure at a later stage? Clearly, the use of such wards for children is a problem, and it is something that we must get rid of.

Rosie Winterton (Labour, Doncaster Central)

I am acutely aware of my hon. Friend’s concern about these issues. Indeed, he has made that point not only in the House, but in meetings that we have had. I hope that, when we have the clause stand part debate, I will be able to give him some greater reassurance.

As I said, however, our difficulty with the amendment is that it would not only amend a clause that we have some real concerns about, but introduce another fault in that it includes an assumption that there will be a registered medical practitioner in charge of the child or young person’s case. In fact, under the Government’s proposals, the child or young person could be in the charge of a responsible clinician who is not a registered practitioner. That goes back to our debate on the important role of psychologists, which I discussed at a recent meeting with YoungMinds.

John Pugh (Liberal Democrat, Southport)

The Minister has just contrasted amendment No. 62 with clause 24 as it stands, and has claimed that the amendment is preferable on the ground that it allows more flexibility. However,clause 24 contains the words “except in an emergency”, which the hon. Member for Stafford wants to have included in amendment No. 62, so it is not obvious to me that the original wording is worse than what is proposed in the amendment or that it does not guarantee a degree of flexibility.

Rosie Winterton (Labour, Doncaster Central)

The hon. Gentleman should be aware that the amendment is to the clause that is there at the moment. I said that it would introduce a degree of flexibility, which would address one of the problems that we have with it. I shall come to that in the clause stand part debate. However, I also said that, while the amendment tried to tackle that matter, it would introduce another fault, in that it included the assumption that there would be a registered medical practitioner in charge of the child or young person’s case whereas in fact, under the Government’s proposals—which the hon. Gentleman opposed—the responsible clinician in charge of the case might not be a registered medical practitioner. When it comes to looking after young children, the role of a psychologist can be extremely important. That is why we are so concerned about the attempts of the Opposition to undermine that role, and it is why I ask the Committee to support us in opposing the amendment.

Tim Boswell (Conservative, Daventry)

Before the Minister closes, will she respond briefly to a concern that I have in relation to the appointment of a clinician or registered medical practitioner—for this purpose, it matters not which—with responsibility? I know that I have missed something because I had to miss one of the debates last week. In an emergency, at what point does the responsibility devolve to the responsible clinician? Say somebody harms himself—he may be comatose—and is admitted to an institution and sectioned. At what point does the process move from the emergency, life-saving services of a physical nature to the assessment and treatment stages? At what point does the clinician take over and assume responsibility in emergency circumstances?

Rosie Winterton (Labour, Doncaster Central)

I should make it clear that if we are talking about admission, we are talking about the responsible medical practitioners; we do not seek to change that. As to the responsible clinician, we are talking about a psychologist who would take over the role of looking after the patient, which the hon. Gentleman opposed by trying to delete clause 11. The responsible clinician will also consider the renewal of detention. However, in the initial stages of an emergency, we would use the system that we have at the moment, so two doctors would be involved.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am not surprised that the Government will not accept the amendment, although at least the Minister has been gracious enough to recognise that our aim is to inject greater flexibility. The three parts of clause 24 are an important element of the Bill, and we will debate them in a minute. We will certainly argue forcefully that they should remain. I do not want to detain the Committee further; if the main argument is going to be over whether the clause remains, it is slightly fatuous to push to a vote an amendment to a clause that may not exist if the Government get their way. On that basis, I will seek the Committee’s leave not to press the amendment at this stage, but to come back to it later. If we win the argument, the Government come our way and the clause remains, we shall have another go at it on Report. I beg to ask leave to withdraw the amendment.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss new clause 23—Minors

‘(1) After section 38 of the 1983 Act insert—

“38A Hospital and guardianship orders (minors)

In the case of an offender who has not attained the age of18 years the court shall not make an order under sections 35 (remand to hospital for report), 36 (remand to hospital for treatment), 37 (hospital and guardianship orders) or 38 (interim hospital orders) unless satisfied that the services and accommodation to be provided are sufficient for the particular needs of that offender.”’.

Rosie Winterton (Labour, Doncaster Central)

The Government are opposed to clause 24 standing part of the Bill. As I said earlier, I want to make it clear that we feel that this is an extremely important area that we want to consider further. I shall come on to the reasons why we think that the clause has some problems, and why we feel that it is important to say that we can take it away and have a look at it. I recently had a useful meeting with Barbara Hertz and Kathryn Pugh from YoungMinds, at which we discussed how we could best tackle the issue of children and young people being placed on adult psychiatric wards. I think that hon. Members on both sides of the Committee, and Members of the other place, have an agreement that under-18s should be placed on adult psychiatric wards only where it is considered appropriate because of their particular circumstances.

James Duddridge (Conservative, Rochford and Southend East)

Will the Minister give us an idea how many children are currently treated on adult wards? I have heard two contradictory stories: one that the figure is around 1,000, and the other that there are no accurate figures because only occupied bed days are counted, not absolute numbers of individuals.

Rosie Winterton (Labour, Doncaster Central)

The hon. Gentleman makes a good point. I should say that the figures show, for example, that in some parts of the country, there have been no bed days recorded at all for under-16s, particularly over the last year. I shall come on later to set out the programme that we have put in place to ensure that that does not happen. With regard to 16 and 17-year-olds, the hon. Gentleman is right to say that the measurement tends to be in bed days. When I saw that, I thought that we should be talking about people here, and I want to look at how we can record that more effectively. I think that there is a way we can do that. The number of in-patient bed days has fallen, but nevertheless, as the hon. Gentleman says, it is difficult to get a clear understanding of what that means in terms of young people, and whether it is about re-admissions. I agree that we need to look at that, and I am actively doing so.

At the meeting that I had with YoungMinds, it was fair to say that it acknowledged the progress that we have made so far by implementing the Government’s CAMHS policies. There is no doubt that the central investment that is being made has led to a major change on the ground. It has meant a significant increase, for example, in multidisciplinary and joint working across professions and agencies and has meant looking closely at how some of the key players can be engaged in the development of services at local level. We began collecting the information in 2005. We need to be clear that such information was not collected before. We started collecting information about the use of adult psychiatric wards for children and adolescents so that we could performance-manage more closely that aspect of the service. I accept that it relates to bed days, but that is how such data are normally collected.

In November last year, the Under-Secretary of State for Health, my hon. Friend the Member for Bury, South (Mr. Lewis), made a clear commitment that within two years no child under 16 would be placed on an adult ward in England while being treated for a mental disorder. The Department is working closely with strategic health authorities to ensure that that commitment is fulfilled. We intend to do so by writing to SHAs, making clear our expectations with regard to children on adult psychiatric wards, emphasising the commitment that within two years no child under 16 will be treated on an adult ward. If a child of 16 or under is placed exceptionally on an adult psychiatric ward, we expect that to be reported to the Department as a serious untoward incident. Furthermore, we expect that the child should not stay on the ward for more than 48 hours, that the ward should be specially equipped to deal with the child and that the staff dealing with the child should be appropriately qualified.

Mr. Boswell rose—

Rosie Winterton (Labour, Doncaster Central)

I shall give way to the hon. Gentleman so I can have a drink of water.

Tim Boswell (Conservative, Daventry)

I am grateful to the Minister—or perhaps she is grateful to me for intervening, in this case. While she is controlling the tickle in her throat, may I ask whether, as part of this process, she will undertake to report to the House regularly on the progress towards fulfilling this target? From what she has already said, we are already nine months into the process. She is writing to strategic health authorities now and she has only 15 months to bring it to a conclusion. In any case, the process relates only to under-16s. I accept her good will and that she is trying to do her best, but can she please reassure us that she will monitor progress and report to us as appropriate?

Rosie Winterton (Labour, Doncaster Central)

I am sure that my hon. Friend the Under-Secretary for Health will be anxious to ensure that Parliament is aware of the progress that we are making. The important point is that the process will enable us clearly to manage the situation. If there are difficulties, reporting incidents through the serious untoward incident process will enable us to see what has happened in respect of each individual case, why a decision had to be made in the circumstances and what action is being taken to ensure that it will not take place again.

Ian Gibson (Labour, Norwich North)

I hope that I talk for long enough to allow the Minister to have another drink of water.

There is a desperate move in this country to build new wards for teenagers who have cancer. Will partnerships and joint funding be part of the Minister’s discussions with SHAs, in case new wards need to be developed? I am sure that there are parts of the country where there are none, as was the case with teenage cancer, but the Teenage Cancer Trust put millions in, alongside the Government, to provide wards.

Rosie Winterton (Labour, Doncaster Central)

My hon. Friend makes an important point. Advantage should be taken of the extra capital investment that has gone into CAMHS services. It is important, especially in children’s services, to ensure that there is a close relationship between health authorities and local authorities, for example. A multi-agency approach can be extremely effective in ensuring that facilities are of a high standard and that the exchange of information, which is so important, takes place.

We have made it clear in our communications with the strategic health authorities that they should check that adult wards are used only when appropriate, in line with the best practice set out in the national health service framework. It is important that responsibility is taken at local level to manage the situation. We want local decision-makers to decide what are their current problems and to ensure that they achieve what we set out.

Angela Browning (Conservative, Tiverton and Honiton)

I am rather concerned about responsibility being devolved. The Government devolved the issue of mixed-sex wards in general hospitals when they first came to office, but what we wanted has not been delivered. Why should we be any more confident that the same process, which is now being applied to children’s mental health services, should be any more successful than it was in respect of mixed-sex wards?

Rosie Winterton (Labour, Doncaster Central)

First, we have checked on the mixed-sex ward scenario, which is a slightly different debate. We set out that 99 per cent. of wards should not be mixed-sex, and that target has been met. The problem occurs in a very few places where those involved are working with an old-fashioned set-up, for example, if they are waiting for the completion of a new hospital that is clearly planned in relation to the issue of mixed wards. However, that is not to say that greater improvements cannot be made in that respect. In the reporting of a serious untoward incident, we allow for a much greater view from the centre to ensure that we can work with SHAs and primary care trusts on performance management.

Tim Loughton (Conservative, East Worthing and Shoreham)

The Minister is completely detached from reality if she thinks that 99 per cent. of hospitals have no mixed-sex wards. I have been to brand new hospitals that are now having to revert to mixed-sex wards because of the current deficit crisis in the NHS, particularly with regard to mental health patients. Vulnerable children are being placed not only on adult wards, but on mixed-sex adult wards, which is particularly inappropriate; there have been several cases of young girls being subject to sexual abuse from older patients of the opposite sex.

Rosie Winterton (Labour, Doncaster Central)

As I said, the clause is about young people and children on adult wards. We have taken some action through the service where we want to improve the current situation. From whichever side of the Committee they come, no hon. Member wants to perpetuate a situation in which under-16s might be on adult wards. That is why we have taken the action that we have.

Tim Boswell (Conservative, Daventry)

If I may be uncharacteristically ruder than my colleagues, does the Minister agree that the issue is not the welcome statement about putting responsibility on SHAs and health care providers, but the concern that in devolving that responsibility she might seek to deny her own responsibility and that of the Department for managing the overall resources to avoid this deplorable situation?

Rosie Winterton (Labour, Doncaster Central)

No, I do not think that that is the case. If I am allowed to continue, I hope that I will be able to indicate that we are certainly not unsympathetic to the principles in clause 24. However, it is important to have a service that actually delivers what we want. To some extent, we can legislate all we like, but unless we ensure that legislation is matched by services on the ground, there can be unintended consequences.

I am shortly meeting the Children’s Commissioner for England, and we shall consider the very powerful report entitled “Pushed into the Shadows”.

Chris Bryant (Labour, Rhondda)

The Minister said that she was going to meet the Children’s Commissioner for England, but I hope that she will meet the Children’s Commissioner for Wales as well. The legislation will affect England and Wales, so has she had discussions with Welsh colleagues about children in adult wards in Wales?

Rosie Winterton (Labour, Doncaster Central)

My hon. Friend makes an important point. He is right that there should be discussions with Welsh colleagues in developing all policy matters on the subject—including when there is a decision to legislate, and particularly on service delivery—so that people are comfortable with legislative changes that affect service delivery. Legislation on service delivery is more problematic than legislation that sets frameworks such as the one in the Bill, which is concerned with compulsion under the Mental Health Act, andclause 24 goes far beyond establishing a framework.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am grateful to the Minister, who is accepting many interventions.

The Government have form in this area, do they not? The subject has been raised in the context of the national service framework for children, and specifically standard 9 of that framework. The Government have not made material progress in achieving the relevant standards, and the Department of Health set a public service agreement target that by the end of 2006, comprehensive CAMHS will be available to everyone in England who needs them. The Government have failed to deliver that, so what has changed such that they can now assure us that they will deliver appropriate services for young people, given that all the evidence suggests that things are going backwards, with deficits hitting CAMHS in particular? Does that not mean that there should be a statutory requirement on delivery?

Rosie Winterton (Labour, Doncaster Central)

It is unfair on CAMHS to say that there have not been changes. For example, the figures that I gave earlier show that there has been a fall in relation to the dreaded bed days for under-16s, so that in some areas there are now no under-16s on adult wards. To say that there has not been improvement is quite wrong; there has been massive investment in CAMHS, and some real changes in the way in which services are delivered, through a sound multidisciplinary approach. Some £72 million of capital expenditure has gone into CAMHS investment since 2004, so the changes are real, and they have improved services and in-patient care. We should not denigrate that—it is £72 million of investment that the Opposition probably voted against.

Angela Browning (Conservative, Tiverton and Honiton)

In their response to the scrutiny Committee, the Government agreed that generally all under-18s should be accommodated in age-appropriate facilities. The right hon. Lady has not mentioned much about 17 and 18-year-olds, but if she agreed with the principle in her response to the scrutiny Committee, about which we had much discussion, why will she not accept the new clause?

Rosie Winterton (Labour, Doncaster Central)

I admit that I am taking a tortoise-like approach in reaching my conclusion. I want to reassure the hon. Lady that I am not rejecting the principles of the new clause, but I want to make sure that such legislation does not give rise to unintended consequences. Obviously members of the Committee want to hear about our problems with the clause, but I am willing to consider further whether there is scope for such legislative provision, although it would certainly have to have the right degree of flexibility.

The inflexibility of the clause means that it could result in children and young people being treated hundreds of miles away from their homes and families if there are no empty CAMHS beds in the locality. Such a problem might result from the clause. Opposition Members know about treatability from our many discussions, and if there were the slightest suggestion that treatment may be unlawful if someone was put—even in an emergency—on a bed outside of the terms of the Bill, for example, psychiatrists might consider that they had to turn someone away instead of giving treatment. Such a situation would give rise to a problem in respect of what becomes lawful and what becomes unlawful. We must be realistic and ensure that the clause would not give rise to such difficulties.

Tim Boswell (Conservative, Daventry)

The Minister was right to rehearse some of the potential dangers, but does she agree that although the clause relates to assessment and the involvement of child and adolescent mental health specialists, it is silent as to the nature of that provision provided that it is appropriate for the young person in question? Nothing in the Bill says that matters must relate to a child ward, only that it is something that must be considered.

Rosie Winterton (Labour, Doncaster Central)

Yes, and that might be one of the problems. If there is a possibility that matters could be interpreted differently, for example by case law, we would have to be careful that the Bill was not allowing a situation to develop whereby treatment in certain circumstances might become unlawful. The worry is that, if CAMHS were not yet developed to the level that we would want to see, the possibility of children going untreated might be a real one.

The clause also places a duty on PCTs to

“provide such services and accommodation as are sufficient for the particular needs of that child or young person.”

Placing that duty on the PCTs might not be the right way forward. I have been given the legal advice that YoungMinds received when it drafted parts of clause 24. As I said to the charity, I want to look at the issue with an open mind. I certainly agree that the principles outlined are the right ones, but I cannot accept the clause as it stands at the moment because there are some problems that I would need to look at further.

I hope that that gives the Committee some reassurance that I will certainly take this matter away and look closely at it. I will continue to hold discussions with YoungMinds and others, not only about their legal advice but about the legal advice that we shall seek. I hope that the Committee will therefore agree that the clause should not stand part of the Bill.

Tim Loughton (Conservative, East Worthing and Shoreham)

As I said earlier, this is a very important part of the Bill. It is possibly the one issue that has concerned most people who have taken a close interest in the Bill across all the parties. I pay tribute to the very strong case that has been put to the Committee by YoungMinds. It has not only provided written submissions, but held events in this place at which very brave young people who have been sectioned to adult acute wards have given harrowing testimonies of their experiences. Such testimonies were included in the witness session that we organised two weeks ago. I urge hon. Members to read some of those contributions, which have now been written up; I hope that the document will be distributed to everyone later today.

It is a very frightening experience for a young person to be placed in mental health services. It is particularly frightening to be surrounded by adults who have quite severe problems and, worst of all, to be placed as a young teenage girl in a mixed-sex adult ward for any length of time. It is a practice that I am sure all of us here would agree should not continue. It is entirely unacceptable. It is not helpful to the therapeutic treatment and recovery of the young person. We need to do everything we possibly can to ensure that such practices do not happen in future. That is why Opposition Members believe that we have reached such an important part of this debate. The only way to give a clear signal that this should stop is to make it a statutory requirement within the Bill.

I am pleased that the Minister agrees with the principles set out in the new clause, but she must go further. She must provide a means whereby the intention underlying those principles can be achieved as quickly as possible. Although she tries to give us assurances by saying that she agrees with the principles and is happy to take this away, I must respectfully point out that she has had a lot of time to think about it. The mental health tsar wants to find a non-statutory solution to the problem of inappropriate treatment for young people. But the Government have had nine years to look at this legislation and deal with that problem, and they have failed to deliver the public service agreement for CAMHS for young people.

Despite the reassurances of the Under-Secretary of State for Health, the hon. Member for Bury, South, many of us do not hold out much hope about this practice coming to an end within the next two years. It is unclear to what extent it will be terminated—a point that I shall come to in a minute. Also, I believe that the problem is far worse than the Government admit. The Minister rightly admits that counting bed days is not appropriate and that we should be looking at real people, real patients and real young people’s experiences. The suggestion from the experts and from the young people to whom we have spoken is that the problem is far wider than the Government appreciate. It is also being exacerbated by the current financial problems in mental health services, which yet again are hitting young people’s services disproportionately.

I would be interested the know the outcome of the Minister’s meeting with the Children’s Commissioner for England, who is on record as strongly supporting the clause. The commissioner’s submission to the Committee states:

“The Commissioner welcomes the inclusion of these provisions, in particular the requirement that the services and accommodation must be appropriate to the particular needs of the child.”

The commissioner quotes figures from “Pushed into the Shadows”, a hard-hitting report on the extent of the problem facing us, and refers to the requirements placed on the Government under the United Nations convention on the rights of the child. Referring to article 37(c) of the convention, the commissioner’s submission states:

“States must separate children deprived of their liberty from adults ‘unless it is considered in the child’s best interests not to do so’.”

The Government must make their case regarding the circumstances in which they think that it is in the child’s best interest to be in a mixed-age ward, let alone mixed-sex, other than in the emergency circumstances on which I think we are all agreed. The Minister set a threshold of 48 hours as the period suitable in an emergency, which I mentioned earlier. The burden of proof must be on the Government to show the circumstances in which they think it is appropriate that the practice should be allowed to happen.

Chris Bryant (Labour, Rhondda)

I wholly agree with the hon. Gentleman that there is a significant problem with the number of youngsters who receive inappropriate treatment. My concern is that he said that it is a much bigger problem than the figure given by his hon. Friend the Member for Rochford and Southend, East suggested; I refer to the figure of 1,000 cases, which I understand came from the Government. If that is the case, and if we were to legislate in the way in which the hon. Gentleman is suggesting, a lot of current treatments would become illegal on the day that the Bill was enacted. What does he think should happen on that day?

Tim Loughton (Conservative, East Worthing and Shoreham)

The hon. Gentleman knows as much as anybody else that if we pass the legislation, the measures will be enacted on the day following Royal Assent. Clearly, there will be trigger dates in the following months or years when certain requirements made by the Bill will come into operation. Those dates will send a strong signal to primary care trusts that they will be required to arrange their services and commit their resources in order achieve the objectives of the legislation, which will become requirements as of a certain day. It will not be that all hell breaks loose all of a sudden on the day of Royal Assent. Hopefully, by then, the situation will be sorted out and we will not be dealing with 1,000 legal cases. That is how all legislation works. I am not quite sure what the hon. Gentleman thinks will happen on the day that the legislation comes into force.

Chris Bryant (Labour, Rhondda)

In which case, is the hon. Gentleman suggesting that there should be a special date when this element of the Bill comes into force, as opposed to other elements—for instance, in three years?

Tim Loughton (Conservative, East Worthing and Shoreham)

Three years would be an inordinately long space of time given that the Government think that they can solve the problem without statutory regulation within two years, which I doubt. There needs to be a date on which regulations to accompany the Bill can be introduced. Such a date does not need to be, and is not normally, included in a Bill. There needs to be a sufficient lead-in time. If the Government are right to assume that a lot is being done to achieve what is necessary by legislation, bringing the measures in should not be such a big burden on PCTs—[Interruption.] The Minister is prompting the hon. Member for Rhondda to respond, but I shall give way to my hon. Friend the Member for Daventry first.

Tim Boswell (Conservative, Daventry)

Before my hon. Friend forgets the concerns about illegality expressed by the hon. Member for Rhondda, will he not also reflect that whatever the status of the United Nations convention on the rights of the child, it is certainly the case that the European convention on human rights bites on us and our domestic practice through the Human RightsAct 1998, and that article 3 of that convention raises concerns in relation to the inappropriate treatment of children?

Tim Loughton (Conservative, East Worthing and Shoreham)

That is absolutely right. My hon. Friend has mentioned the legislation and conventions under which we are already subject to legal challenge. It would give the Government some breathing space if legislation were seen to be passed showing categorically that they appreciate the problem and are taking legislative steps to address it. I think that a legal challenge would then be less likely, unless of course the desired goal were not achieved by the date set.

Ms Winterton rose—

Tim Loughton (Conservative, East Worthing and Shoreham)

Now the Minister wants a go.

Rosie Winterton (Labour, Doncaster Central)

The hon. Gentleman is absolutely right that it is important to get services and legislation in line. At the moment, the bar for what breaches article 3 is extremely high, and it is unlikely that any treatment given in hospital would be likely to breach it. In terms of the legal situation, difficulties would arise if young people were denied treatment because the legislation made it unlawful to give it in hospital. That is the issue that we must consider closely.

Tim Loughton (Conservative, East Worthing and Shoreham)

I shall come to that. I have not started the comments that I wanted to make; I was just responding to the Minister. The argument that some perverse incentive is occurring sounds good but is not the case in practice. She said that if treatment became unlawful even in an emergency, the responsible clinician would refuse to admit a young person to an adult ward, and that psychiatrists would somehow be incentivised to say, “Sorry, no can do. We don’t have a CAMHS bed at the moment, and it would be inappropriate to admit you to an adult bed, so we’re not going to treat you at all.”

I contend that such a rejection by a responsible clinician who appreciated the severity of that young person’s mental illness would return to hit the health trust and the clinician who had put a no entry sign on the door much harder than the consequences of admitting the young person in the short term to inappropriate care. If the Government are serious, however, about delivering the public service agreement on CAMHS-appropriate treatment, they should be worried about it. If they are serious about providing CAMHS-appropriate treatment up and down the country that is fit for purpose for young people, no psychiatrist should be put in that situation anyway. The Minister is undermining her own argument and boosting my concern that the Government will not deliver on services for young people. She herself seems to lack confidence that they will, which is why it is so important to have a statutory requirement sending out a clear signal that that is a serious priority that PCTs must deliver on.

The Minister repeated another fallacy that I am getting rather tired of hearing. She was not at the witness session two weeks ago, or the special meeting organised by YoungMinds involving a number of young people. Those young people were asked categorically, “Imagine an age-appropriate acute ward with a CAMHS specialist that was sensitive to your medical and other social needs and offered you all sorts of additional care, including education opportunities for those who were there for a long time. If you had to choose between such a ward several hundred miles away and a less appropriate adult mental health ward within bus distance of your family, which would you prefer?” Without exception, all those young people said that they would like to have, without question, the services more appropriate to them. That is absolutely key.

If the Government are confident that they are going to roll out a countrywide CAMHS service under the public service agreement—which they have agreed to do, but failed to deliver by December 2006—what are they worried about? Those facilities should be available, not hundreds of miles away, but in most cases, in the locality. Trying to create this ridiculous either/or situation—either they have to travel hundreds of miles away, and they never see their family, or at least they can go somewhere local and keep seeing their family—is not realistic. It is certainly not realistic if the Government are genuine about delivering what they say they are going to deliver without a statutory requirement.

Angela Browning (Conservative, Tiverton and Honiton)

My hon. Friend will be aware that the Government have only recently restructured regional health services yet again, with PCTs now being county-wide, in order to provide these very services—in other words, specialisms within a county or a group of counties. In the west country, we have already had a consultation on whether children’s services should be in Plymouth or Bridgwater. If this is already under way, I do not buy the Minister’s argument that somehow this is not do-able.

Tim Loughton (Conservative, East Worthing and Shoreham)

My hon. Friend is absolutely right. The Government cannot have it both ways. Either services are being reconfigured to produce an improvement, in which case young people will not need to travel hundreds of miles, and psychiatrists will not have to turn people away at the door simply because there are not CAMHS beds available, or they are not, in which case the statutory duty in this legislation is absolutely essential.

So the Government are arguing against the reassurances that they are giving us to convince us not to require that the clause remain in the Bill. When the Minister responds, perhaps she can back whichever horse she thinks she needs to reassure us.

Coming back to the scenario of the psychiatrist saying, “No, we are not going to admit you, even though you have a serious illness, because we don’t have appropriate beds”, I had a most serious case in my constituency a few years ago. A teenage girl had a long series of mental illnesses, and was in a very desperate state. In the end, she was turned away when she was in a state of crisis from an acute mental hospital in Worthing in my constituency. Such was the desperation to take her own life that her father assisted her in committing suicide, and was accused of manslaughter and convicted, with mitigating circumstances. It was a most tragic case. She had been turned away on weak grounds from that hospital, and the comeback was not on the way in which the legislation is framed. It was on the failure of the services to pick up that girl and give her the treatment that she required and deserved.

So the way in which the legislation is framed creates no perverse incentive for the system to turn people away. I fear that in the case in Worthing the problem was a weakness in the services, and that the trust did not give sufficient priority to providing services for children and young people. That was a serious incentive for it to get its act together. I fear—I am glad—that there are parts of the country where we have not had such a drastic incentive for a mental health trust to improve its age-appropriate services.

Tim Boswell (Conservative, Daventry)

The Minister seeks to defend her position by saying that there is a danger of action under the European convention on human rights claiming inappropriate treatment. If clinicians opted for denying treatment altogether, in the circumstances that my hon. Friend has just described, would the public authorities not then be at risk of action under article 2 of the convention, which is on the right to life?

Tim Loughton (Conservative, East Worthing and Shoreham)

My hon. Friend is far more expert than I am on all the various clauses of the convention. He reinforces his point that, as the legislation stands, this measure could be a lawyers’ field day, without the addition of the amendments made in the Lords.

I remind the Minister that clause 24 was added to the Bill in the Lords with enormous cross-party backing, led by Cross Benchers; Lord Williamson led on this amendment. The amendments were passed in the Lords by a very substantial margin, by a vote of 201 to 126. This was not just some political gamesmanship in the upper House; there was very solid support for these amendments. Really, there is a much greater onus of proof on the Government to say why all those Members of the House of Lords, including mental health practitioners and people who were previously high-ranking figures in the NHS—people who know what they are talking about—were wrong and why the Minister is right, not just in principle but in practice.

Lord Patel played an important part in that debate in the other place. He is chair of the Mental Health Act Commission. The commission’s report produced some stark figures, saying that

“between April 2003 and October 2006, 1308 under-18s were detained in adult psychiatric units with no special safeguards in place; and 27 of these children were under the age of 14 - one as young as ten. 322 out of 409 girls were placed on mixed-sex wards, and staff understanding and knowledge of child safeguarding issues was unclear. Adult units were unable to provide for the child’s education.”

Lord Patel said in the Lords:

“When the Mental Health Act commissioners asked ward staff whether there were any plans to transfer the young person or child to more appropriate surroundings within the next seven days, there were no such plans for nearly three-quarters of the children. That is 959 children with little or no prospect of moving from adult psychiatric wards. Only one-third of the children...had a responsible medical officer who specialised in child and adolescent psychiatry...It is also notable that half...were classed as emergency admissions.”—[Official Report, House of Lords, 15 January 2007; Vol. 688, c. 550.]

So it is not the case that these children are just there in an emergency—what we would interpret as an emergency—and that after, say, 48 hours at most they are moved on, however far, to CAMHS. These are children and young people, some as young as 10, who are there for the long run. That cannot be in their best interests and the Minister is underestimating the scale of the problem.

Ian Gibson (Labour, Norwich North)

Does the hon. Gentleman think that that is the reason for the initiative that is being shown in Devon, where some of those figures are collected from? Does he know how the figures broke down geographically in England and Wales?

Tim Loughton (Conservative, East Worthing and Shoreham)

I do not have a clue. However, I am sure that, if the hon. Gentleman examined the MHAC report, or spoke to Lord Patel, he could get a more detailed analysis of the figures.

What the figures reveal is that, in certain parts of the country, there are enormous pockets in which there is a lack of provision. However, if the Government offered to roll out a public service agreement level across the country, not just in Devon, or in West Sussex, or in Norfolk—the hon. Gentleman’s own area—things would be different. This process should be country-wide, because this is a problem up and down the country. It is a particularly stark problem in some of the inner cities, and we have heard cases from London. It is a particular problem in black and other ethnic minority communities; I will come on to that point in a minute.

The figure of 322 out of 409 girls on mixed-sex wards—not just adult wards, but mixed-sex wards—is really alarming. Those girls are not there for 48 hours; they are there for many days, in some cases weeks and in other cases, as we have heard directly from witnesses, months. According to the RCP, when admissions for voluntary treatment are included, that figure rises to more than 1,000 young people being admitted inappropriately every year. There is good evidence to suggest that that figure is growing, certainly in particular parts of the country.

The Government’s own national service framework standard 9 research in 2006 revealed that

“only 25 per cent of children with a diagnosed psychiatric disorder were accessing mental health services over a three-year period”

and that

“43 per cent did not have contact with any professional.”

We are talking only of the children and young people whom we know about—the ones who get picked up by the service. What we do not know about is the scale of the problem of those children and young people who need treatment but who, for whatever reason, do not present. One reason for that could be their fear of being dumped in the particularly intimidating environment of an acute mental health ward with adults and people of the other sex. Given the option between that and staying under the clinical radar, I fear that too many young people choose the latter. That surely is the worst scenario of all. We know that that is where people’s condition—not only young people’s—can worsen and get out of control.

There is also the point about the number of young people who act as carers for parents or other family members who have a mental health condition. It is estimated that out of 175,000 young carers in this country—some of them are very young—around a quarter of them could be looking after a parent or a member of the family who has a mental health problem. We need to do a lot more to provide support for those young people. I am glad that Baroness Royall in the other place took this point on board and offered to go away and look at it to ensure that there was some reference in the code of practice. Can the Minister report on what progress has been made on that? I think that that issue is particularly worrying. We need to deal with the young people looking after family members with mental illness as well as the young people themselves.

I think that the problem goes far wider than the Government admit. Although the Government quote some figures that suggest that the problem is, in certain circumstances, diminishing in some parts of the country, I think that the underlying problem is worsening.

We should not forget the Government’s response to the Bristol inquiry, which was that

“children should not have to make do with services designed for adults, which are, quite simply, inappropriate for them.”

My hon. Friend the Member for Daventry referred to conventions throughout the Committee. The Government have drawn up national service framework requirements. They have broken their promises for a time scale on public service agreements. They have responded to the Bristol inquiry. They claim that they are taking the situation seriously, that they want to achieve what we want to achieve, but we need to see the beef. We believe that the only way of producing that beef is by keeping clause 24 in the Bill. The Minister has been quoted as saying that the clause would create a legal and clinical straitjacket for clinicians. I think that the Minister’s choice of the word “straitjacket” is not helpful and can be construed as stigmatising. Perhaps somebody has ticked her off because she has not used it this morning.

The Minister has also told us about the Government’s latest new arrangements for PCTs to notify the Department if children and young people under 16 are admitted to adult wards. How will that work? What will the Department of Health do on being notified by a PCT that there is a 15-year-old in such and such adult mental health unit? Do the notifications include only those who are there under compulsion, or do they include voluntary admissions?

Is not the problem that limiting the provisions to the under-16s sends out a clear message to all 16 and 17-year-olds that it is perfectly acceptable for them to be admitted to adult acute units? The Minister is bringing down the barrier at 15 years, 11 months and 30 days, or however one qualifies it. We have said all along that children are counted as children until the age of 18, and that there should be an assumption that they be given treatment appropriate to children until they reach that age. The Government need to make the case for the few 16 and 17-year-olds for whom it may be appropriate to provide treatment in adult wards.

Between 2002 and 2005, the case load involving such children rose by some 40 per cent. Where is the problem with those young people accessing treatment? Will the Minister also comment on what happens in Scotland? Contrary to a letter that was sent out by the Secretary of State after I challenged her on the issue, practitioners in Scotland are very much in favour of this sort of clause, which was included in the Mental Health (Care and Treatment) (Scotland) Act 2003. They think that it is working in favour of young people. Any small, short-term discrepancies in the figures are largely down to the way in which numbers were collected, or not collected, before. Scottish practitioners believe that the amendment is working to the benefit of young people, not to their disbenefit or as some sort of perverse incentive, as the Government claim.

I want to know the circumstances; I want to see real examples of scenarios in which the provision is acting as a perverse incentive in jurisdictions that have included it in their legislation.

Ian Gibson (Labour, Norwich North)

Does the hon. Gentleman accept that some so-called young people may choose to be in an adult ward? What would be the conditions for them?

Tim Loughton (Conservative, East Worthing and Shoreham)

I think that I have just made that case. The provision of such treatment for children and young people with capacity, who are assessed as suitable for treatment in adult wards with the agreement of clinicians, would not be undermined by the clause. The assumption, however, must be that children and young people are most appropriately treated by children and adolescent specialist mental health services. That is how we see the equation, not the other way around. I do not buy the Minister’s argument that the inclusion of the clause in the Bill could act as a disincentive. It sends out a clear message, with which I think all members of the Committee agree and with which the Minister says she agrees in principle.

Before I speak briefly to new clause 23, which is part of the group, I should like to quote the legal opinion on the Mental Health Act 1983 and this part of the Bill from Paul Bowen of Doughty Street chambers,which was obtained by YoungMinds and to whichthe Minister referred. Mr. Bowen said that newsection 142B is necessary because there is no specific duty on primary care trusts under the delegated functions that they exercise under sections 1 and 3

“of the National Health Service Act 1977 (now 2006) (NHSA) to provide...healthcare”

whether to a child or any other patient. He quotes the case of R. v. Haringey borough council and Haringey PCT in 2006, which referred to the contrast with the specific duty imposed on PCTs and local authorities by section 117 of the Mental Health Act 1983 to provide free after-care services to all detained patients after their discharge from hospital. He says that he does not consider that the provisions will have the effect that the Government are predicting.

So expert legal advice has been taken which could help the Minister and perhaps save public funds being spent on the Government’s own legal advisers. The Opposition position has not just been cobbled together; the measures in clause 24 are clearly thought out and have been debated in detail in the House of Lords, and they would stand up in law. The whole clause inserted by the Lords merits retention in the Bill, and I hope that the Minister will have second thoughts about it after the debate.

New clause 23 is being considered as part of the stand part debate on clause 24. It would insert a new clause on hospital and guardianship orders as an additional provision following section 38 of the 1983 Act. The Offender Management Bill is currently before the Lords, and includes age-appropriate provision for under-18s, so it is ironic to have to debate whether to give protection to under-18s in custody detained under the mental health legislation. The new clause would ensure that young people in custody who needed to be sectioned under the Mental Health Act would get the same protection as those in the criminal justice system. That is an appropriate safeguard given the concerns about prisons being depositories for people with a mental illness.

At present, young people who are sectioned from youth custody or from prison can be transferred to an adult psychiatric ward for care. The same arguments apply to the very vulnerable group of young people who are not in the custody system. They are at equal risk of witnessing or experiencing verbal, physical or sexual abuse in the relevant institutions, or of receiving limited or no access to education services, which is a point that has emerged from many of the discussions that we have had with young people. Such young people need to be able to carry on their lives and their education, as well as to receive appropriate treatment for their mental health condition so that when, as one hopes, they ultimately recover, they have not missed out on that education. So it is just as important to provide age-appropriate facilities in areas that do not relate exclusively to health, and it is no good if the treatment comes from professionals who are not experienced in children’s mental health needs.

The Offender Management Bill contains provisions for treating under-18s in an appropriate environment. Children in youth custody have high-level mental health needs. According to the Youth Justice Board survey by Bailey and Harrington in 2005, 31 per cent. of young people have a mental health need, 13 per cent. have depression, 10 per cent. suffer from anxiety, 9 per cent. report self-harm in the previous month, 9 per cent. have post-traumatic stress disorder, 7 per cent. have problems with hyperactivity, and, most critically perhaps, 5 per cent. report psychotic symptoms, which is a figure much higher than in the general population.

Surely, therefore, it is appropriate to give that especially vulnerable group protection equal to that given to those outside the custody system. That is what new clause 23 would do. The debate on clause 24 stand part and new clause 23 relates to probably the most vulnerable people with whom the mental health services have to deal. It is essential that their needs are recognised expressly in the legislation and that the Government, the Opposition and the legislation that we enact all send out a clear signal to service providers that proper protection is expected. I am afraid that we have waited for too long for age-appropriate treatment to be available up and down the country. That is why the amendments that were so carefully inserted into the Bill in the House of Lords remain essential to its integrity and effectiveness. I very much hope that the Minister will not seek to remove the clause.

John Pugh (Liberal Democrat, Southport)

May I indicate in advance, Mr. Cook, that I have an Adjournment debate at 1 o’clock, so if I leave a little bit early it will be due to nothing that you have said, and no discourtesy will be intended to the Committee.

I think that the Minister said that she wanted legislation with “sufficient flexibility”. That is an intriguing and important remark, but it does not affect what is before us now, which seems to be an attempt to remove clause 24 as it stands. Before speaking to the Lords amendment, I must praise YoungMinds. If it has achieved no more than this debate today, it has achieved an enormous amount in driving the subject up the political agenda. Even if nothing changes in legislation, it can claim a considerable achievement.

Clause 24 stands out because it concerns a matter that was not part of the draft Bill or the main debate between the Mental Health Alliance and the Government, which has tended to centre on fundamental issues of liberty, autonomy and safety. It has enormous cross-party support, even from those with different attitudes to other clauses and issues. To an extent, it is a test of the Government. If they remove clause 24, that would have nothing to do with their original objectives in framing the legislation. It would look like control-freakery—a kind of not-invented-here syndrome—or would seem mean-spirited, and I would not want to accuse the Minister of that.

To summarise, nobody thinks that it is either desirable or acceptable for adolescents or children to be on adult wards and not specifically catered for. Granted, the word “children” includes a gamut of people. Hon. Members might be intrigued to know that a lumping 16-year-old cannot be seen at my local accident and emergency, even though he is very similar, biologically, to the other people there. He has to go to a special accident and emergency department for children, which is outside the constituency. Children and adolescents are, to some extent, different. There has been a debate about provision for children, which is different from a discussion about provision for adolescents. Many horror stories can be related in both cases. Adolescents have very particular needs that should be catered for. If being adolescent is not bad enough, being an adolescent with a mental illness is pretty terrible.

The point has not so far been made that one should not over-generalise from the horror stories. One does, however; one stigmatises the already stigmatised. Most seriously ill adults are not naturally predatory or aggressive. They are alarmingly vulnerable people. I say that as somebody who, what seems like hundreds of years ago, worked in a mental hospital among adults. The modern adult ward is not a 20th century Bedlam; it is considerably superior to the old-fashioned mental hospital in which I worked. Any hospital that is like that is a problem for vulnerable adults as well as for children and adolescents. None the less, we would all agree that it is not good to have children in adult facilities. The most sane comment on that was made during the Lords debate by Baroness Meacher, who said:

“The reality of adult in-patient wards today is that staff are managing in-patients with ever more serious and complex psychiatric disorders. Anyone who can be managed in the community is managed by one of the community teams, even if that involves daily visits—three or four visits a day—and hours of every day being spent in that person’s home. The result is that any in-patient is likely to be severely disturbed. You do not have the sort of balance that you had 10 years ago where you had a number of reasonably stable patients and others who were a bit more disturbed.”—[Official Report, House of Lords, 26 February 2007; Vol. 689, c. 1370.]

That is the situation. It needs to be addressed, and it is addressed by clause 24.

The House of Lords amendment, which is now clause 24, allows children, in extremis, to be on adult wards—there is no question about that—but bans it as a general practice, and sets a clear standard. The Government believe that that objective, which they share, should be a precept of good practice; it should be monitored, it should be a departmental or PCT objective or target, but it should not be in legislation. They give two reasons for that. First, they suggest that it might be counter-productive and, secondly, they argue that legislation is not about provisions but about drawing up rules, regulations and so on. Both arguments are flaky, but the first—that it might be counter-productive—takes two forms. One suggests that if no provision is available, none will be given; the other, which has been used by the Government but is not being used today, is that the legislation itself will make no difference; the example of Scotland is cited, erroneously, in that respect.

It has to be accepted, even on the Opposition side of the Committee, that PCTs have in the past shown insufficient appetite for bespoke provision, the reasons for which are fairly straightforward. Bespoke provision is expensive; demand, fortunately, is relatively limited and provision is, perforce, often remote, because not every PCT feels justified in providing a bespoke facility on the doorstep.

Tim Boswell (Conservative, Daventry)

Does the hon. Gentleman agree that this is a sub-set of the endemic problem of mental health services of all kinds across the country? Although it is one of the three central Government priorities for improvement in health services, when it comes down to the PCT, constituency or user level, mental health provision is still being cut because of a variety of pressures, when other areas are being safeguarded.

John Pugh (Liberal Democrat, Southport)

I accept that. I was going to refer to an Adjournment debate in the House, secured by the hon. Member for Wantage (Mr. Vaizey), in which he said that children’s mental health services were being reduced, a major contributory factor being that every PCT had a limited need for them and were therefore simply not providing the cash. National facilities were needed, which no one PCT, or group of PCTs, could adequately afford.

Angela Browning (Conservative, Tiverton and Honiton)

I was present at that Adjournment debate, which was specific to the Park hospital. It was shown in that debate that if Park hospital closed its services to children it would leave the most enormous gap in central and southern England and parents and children would not be able to access appropriate in-patient services.

John Pugh (Liberal Democrat, Southport)

I thank the hon. Member for her comment. The thrust of the debate was the case for nationally funded, as well as PCT, provision. In other words, national Government can walk away from their responsibilities as PCTs do not have the capacity to achieve what we all want.

I am not arguing for absolute apartheid between children’s and adults’ services in all circumstances. I quoted the example of the CAMHS unit in my constituency, which complained to me that it could not get early intervention because in the area that is labelled “adult”. It would be perfectly happy to have some help from adult departments in order to do its job.

I am not saying that change—for example, the change that has taken place in residential care provision—cannot be driven by regulation, inspection and the spreading of good practice. Many years ago, I went round social services homes where people shared rooms. They do not so now; it is very different. Inspection standards, and standards in general, have changed, which is a very positive development. I do not recall legislation that changed that, but it changed none the less. However, it is indisputably the case that primary legislation, appropriately crafted, has a role to play, and can do so, although not invariably.

The second Government argument is that legislation does not prescribe resources; generally it does not, because any prescribing of resources is a potential reduction in a limited budget elsewhere and there will be a loss of discretion within limited budgets. However, legislation can set a standard. Lord Williamson, responding to the argument that it is never done, said in a debate in the House of Lords:

“As a former civil servant, I feel tempted to say that it must have been invented by a civil servant.”—[Official Report, House of Lords, 28 February 2003; Vol. 689, c. 1367.]

He said that it was the kind of ad hoc argument that was wheeled out in almost all circumstances.

Rosie Winterton (Labour, Doncaster Central)

I am grateful to the hon. Gentleman for giving way. I realise that he is setting out all the arguments for the Government to accept the proposal, but he is indicating that we are turning our face against it. I do not know whether he was present when I was speaking, or whether he and other Opposition Members had already written their speeches, but I said clearly that we would take away the issues as well as the clause, and consider them. I am curious as to why the hon. Gentleman did not take that on board, as the hon. Member for East Worthing and Shoreham has done.

John Pugh (Liberal Democrat, Southport)

I thought that I had conceded that, as I said that I was arguing about what confronts us now rather than the jam that we will be offered tomorrow. However, if the Minister wants to introduce some new clauses, I am sure that we shall consider them.

The Government’s point about resources is valid and it is fair to address it. My first experience of Richmond house was as part of a delegation from my borough of Sefton when we visited Mr. Boateng, a former Minister with responsibility for social services, to complain about the failure to fund residential care adequately. A legal case had taken place. I remember the scenario. There were no biscuits or coffee. He swept in imperiously and told us what we had to do. We left immediately. The pre-arranged press release was out on the streets and there was not a word about the law not dictating resources or about devolving decision making. Mr. Boateng had simply called us in and told us what we had to do. I am not suggesting that that is what the Minister does with the PCTs, but it was a sign of how new Labour can operate when it wants.

We are arguing about how to obtain a given effect. The Opposition favour legislation. The Minister possibly favours legislation, but hitherto has seemed to prefer other methods. It is a pragmatic argument. We are not arguing about what we want to achieve. Given the Government’s record, at the moment preference must be for primary legislation because that will provide greater reassurance to the mental health community in general.

David Kidney (Labour, Stafford)

I agree with two things that the hon. Member for Southport said. First, our mental health services are providing services to vulnerable people every day. We owe them a debt of thanks for their dedication, diligence and sheer hard work. However, young people are doubly vulnerable, because in addition to the mental disorder for which they receive treatment, they have the added disadvantages of inexperience and immaturity. In that sense, it is important to address them separately, as indeed we are now doing.

The second point on which I agree with the hon. Gentleman is the sheer power of the lobby that has made the Government face up to their responsibility in respect of children and age-appropriate services under the Bill. He mentioned YoungMinds. I agree that it has been a formidable lobbying group in respect of the Bill. It has also been very skilful, as the Minister acknowledged earlier. While praising YoungMinds, I do not want to overlook another group of organisations that has been equally significant, such as the National Society for the Prevention of Cruelty to Children, the National Children’s Bureau, Barnardo’s and the NCH, and certainly the Children’s Legal Centre for its legal advice about the Bill.

I am unhappy that we have been asked to vote against the wording without having in front of us the Government’s alternative wording. Fortunately, I have seen the Minister in action in the Committee. She has been skilful, competent and reassuring, so I am willing to invest a little trust in her bringing appropriate wording to us on Report. However, I shall want to vote then to include in the Bill a provision that recognises the special position of children and young adults.

The 1983 Act does not distinguish between the mental health needs of children and those of adults. That is why there is no lower age limit for admission to hospital. In the 15 January House of Lords debate to which the hon. Member for East Worthing and Shoreham referred, Lord Patel described a child as young as 10 years old being admitted to an adult ward. Let us remember that, as the hon. Gentleman said, the statistics that Lord Patel quoted in the debate were for the period between April 2003 and October 2006, when 1,308 under-18s were detained in adult psychiatric wards with no special safeguards in place. That is virtually one a day. It is a shockingly high statistic, and the dangers are all too apparent.

The hon. Member for East Worthing and Shoreham heard evidence directly from young people who bravely came forward to tell of the appalling abuse of their minds and bodies that they had suffered as a result of inappropriate admissions to mental hospitals. Indeed, some of them have had the courage to contact me directly, albeit through e-mail, to give those accounts. I do not know whether they have contacted other Committee members. I feel that we have a responsibility to address their concerns and put something into the Bill that satisfies their desires for an improved service for children in future.

Before we discuss what we want to be included in the Bill, it is fair to say that the Government have moved already. The Bill contains a new test of appropriate treatment, and the draft code of practice, which we mentioned several times last week, contains many reassuring comments about what appropriate treatment means for children and young people. On page 30 there is a reference to age-appropriate accommodation and at page 152 there is a whole section on children and young people that specifically addresses not only the appropriateness of their treatment in terms of the medicine or therapy that is to be given, but issues about their continuing education while in hospital and the accommodation being appropriate for their age and wishes. All those things, which have happened already, are desirable and good, but there is more still to be done.

In an earlier debate, I mentioned the absence from the clause of a direct, specific exclusion for emergencies. The Minister has been able to say something, but she is worried that there are psychiatrists and hospital managers who would be worried, faced with an apparently absolute duty, to find that conservative treatment in the community might be more appropriate for a young person, rather than an admission to a bed that they do not have. They might not overtly say, “I refuse to admit this child because I have not got a bed”, but there are ways and means, are there not? That is what my right hon. Friend the Minister is warning us about. If the final consequence might be that some young life is lost through suicide, it is important for us to address that matter. We need the clause to contain slightly different wording.

My right hon. Friend the Minister mentioned the Children’s Commissioner for England, whose report, “Pushed into the Shadows”, is a dramatic reminder of how bad things can get for young people in mental health institutions. In fairness, the commissioner said in his report, in 2007:

“PCTs and mental health trusts should ensure that adult wards are not used for the care and treatment of under-16s and, wherever possible, adult wards should be avoided for 16 and 17-year-olds unless they are of sufficient maturity and express a strong preference for an adult environment.”

That demonstrates that it would be wrong to pick an age—whether it is 16, 17, 18 or another one—and say that there is one kind of service for everybody over that age and a different kind for everybody under it. That would be too inflexible.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am following the hon. Gentleman’s comments closely. Does he not agree that the norm should be that children and young persons, who are defined as those up to the age of 18, should be treated by children and adolescent-appropriate mental health services and that the exception could be those 17 and 16-year-olds who may be more appropriately dealt with as determined by the responsible clinician for adult wards? That is flexibility, but the norm should be treating children and adolescents under children and adolescent specialist services.

David Kidney (Labour, Stafford)

That is right. That is what I am arguing for. I object to the present wording because it does not quite make that distinction between the norm and what might happen in extremis, as the hon. Member for Southport said, which is a separate matter.

Services are developing now that are not so limited. Perhaps I can boast about a service in South Staffordshire, where the mental health trust established what it said at the time was the first example of a young persons’ centre addressing the gap in mental health services for people aged 14 to 25. It is not just for those near to 18, but for a broader group. This is a multi-agency service focusing on developing early, easily accessible mental health care for young people, reducing stigma, increasing awareness and promoting well-being. That is a delightful development and one that I commend everywhere, but it does not quite fit into our discussion.

Ian Gibson (Labour, Norwich North)

Why did that happen? Is there some individual who is spot on here, or is there something else going on? I ask because we are trying to look for ways to improve the service across the country.

David Kidney (Labour, Stafford)

If I may, I should like to give credit to a local Member of Parliament who is very keen on the issue of young people and children. I think I said on Second Reading that we had an extraordinarily talented chief executive in Mike Cooke—

Rosie Winterton (Labour, Doncaster Central)

I thought the hon. Gentleman was going to name the Member of Parliament—

David Kidney (Labour, Stafford)

No, it is man named Mike Cooke who is the head of the trust; he is open-minded about these issues and drove those services forward. To finish the story, it is not just that centre. The trust also has a children’s council to ensure that the service hears the views of service users, partner organisations and community groups in respect of children’s services. It takes a change of culture and a change of thinking as well as a change in the law to make things happen. Certainly it is our obligation in Parliament, however, to make sure that the law is right. It will not be right if we accept clause 24 as it is, and it will not be right if we simply delete it. We need something new by the time we get to Report.

Let me conclude on issues that are wider than simply age. We will soon have a debate about advocacy, and I am keen to see that children and young people have access to advocacy in every possible situation where it might be helpful to them. I shall speak about that subject later. I should also like to give some credit to the Government for a later provision in this Bill to allow 16 and 17-year-olds who disagree with their parents to have their wishes taken into account by their treating practitioner and not those of their nearest relatives.

The Government have already made a number of commitments, including the response to Professor Kennedy’s report on the deaths at the Bristol royal infirmary, as the Government accepted that adult services might not be suitable for children and young people. We then had the national service framework for children and young people and maternity services, including standard 9, in which the Government have again given a very positive response in terms of making sure that young people have access to appropriate services. The hon. Member for East Worthing and Shoreham also mentioned the public service commitment on CAMHS, and I have mentioned the draft code of practice and the commitment to age-appropriate services. So everything is pointing in the right direction, except the wording in the Bill.

My right hon. Friend the Minister has given a commitment. She accepts that that is the way to go, so we want to see suitable wording on Report. As she has had such a good and constructive dialogue with YoungMinds until now, will she give a commitment to discuss further with that organisation the wording of the amendment that she proposes to table on Report? I hope that that is a helpful contribution to push her in the right direction.

James Duddridge (Conservative, Rochford and Southend East)

Before I start, I should tell the Minister that I was here throughout the whole of her speech and I listened very carefully. Over the weekend I celebrated my second anniversary of being in Parliament. On most days I get up thinking that this is the best job in the world. Today is not one of those days. I believe that the House and this Committee are failing children with mental health problems. Individually as members of this Committee we are in the process of failing people with mental health problems. Sadly, I believe that I am failing them.

Madeleine Moon (Labour, Bridgend)

Given that I celebrated the same anniversary, may I just say that what is important for me about this Committee and the role that we have taken on in the last two years, as well as the roles that many hon. Members have played for many years, is that we are constantly moving forward to improve services? Mental health services for young people have not been bad just for the past few years; they have been bad for many years. It is now that they are being looked at. Improvements are being sought. The fact that we are debating the matter today andthat hon. Members are pushing for changes and improvement is something that we should be proud of.

James Duddridge (Conservative, Rochford and Southend East)

I thank the hon. Lady for her intervention. I have served on other Committees with her. Although we are making progress, however, I feel that an opportunity is being missed during our debate on this Bill. The Minister said that she agrees with the principles behind clause 24. I question why, rather than just voting against it, she did not introduce an alternative wording so it could be debated in detail. Nine years of debate later, although things have progressed and lobby groups have presented different arguments, it would have been better to see those principles and the Minister’s wording early on so that they could be debated and refined before the process continued.

I was particularly moved to hear the separate oral evidence—it was also received in writing by all Committee members—that was given in the session led by my hon. Friend the Member for East Worthing and Shoreham. I was moved by the evidence given by Antonia Wilkinson and Lois Ward, both of whom spent large amounts of time in adult centres; indeed, one of them spent four years of her life in one. They were concerned about the fact that adult wards had inappropriate space for individual discussions and about the level of communication—both communicative ability and actual communication—among professional staff. Communication was either adult to child or adult to adult, whereas they were sensitive teenagers requiring much more appropriate communication than to be spoken down to as children or on the same level as adults. They also raised concerns about their right to education. Although a number of individuals with mental health problems are unable to receive education, some do, but in adult wards that is not possible.

I got the strong message that those people felt that they had been disadvantaged twice by the system—once in having their medical condition, a mental health problem, and then by being treated in an adult ward. I heard other people talk passionately about verbal, physical and sexual abuse in adult wards. Not only was it quite horrific, but in some cases, such abuse—and, to a lesser degree, drug abuse—was one of the things that had brought on their mental health problems. In the ward where they expected and deserved treatment, they had to relive the experiences that contributed to their mental health problem.

In an intervention on the Minister, I raised the issue of numbers. I should genuinely like her to clarify those numbers. I was confused that no numbers had been produced for under-16s, about whom the Government made a commitment. Although she did not offer any numbers, she said that there had been a fall. I am a little confused. If she is not aware of any national level of monitoring, how can she validate that claim about a fall? I am impressed that hon. Members from all parties have pointed out the obvious fact that children go up to the age of 17. A lot more needs to be done for 16 and 17-year-olds.

In November 2006, the Government made their two-year pledge. If it is likely to be fulfilled, why cannot we say in the Bill that in three or even four years’ time, some of the situations in which children are treated in adult wards will be illegal, so that this Government or a future Government cannot push back that promise to the primary care trusts and say, “It’s your responsibility to balance priorities”?

I am conscious of time, so I shall end my comments. I have great hopes that the Minister will table amendments, but unfortunately I do not have great confidence.

Chris Bryant (Labour, Rhondda)

I am sorry about the hon. Gentleman’s last comments, because they seem particularly gloomy. My own experience of children’s mental health services during the past 22 years is one of significant improvement. I was curate at All Saints High Wycombe in 1986. Four youngsters committed suicide in the parish. They were all children. They did not all commit suicide together, but one child did so in September, another in November, another in March, and the other the following June. They were all close friends. None of them had any experience of the local mental health services. They had no counselling provided to them, even though they were known to be a small group of friends. Once the first child had committed suicide, no support to the family was provided by the local health trust, or, for that matter, by the local school to the children in the same class as the young boy who had committed suicide first. I do not believe that that situation would occur today. There has been a dramatic change in the way in which we approach the support needed for those who may be, as it were, the victims of somebody else’s mental health problems. The support to children in schools where there has been a suicide or a traumatic death is different to what it was 20 years ago. The provision of mental health services to youngsters has dramatically changed.

Like all hon. Members, I believe that there should be appropriate treatment for every individual, and it is obviously true of a child that their very nature should be respected as part of the appropriateness of their treatment. However, it is not the sole condition of the appropriateness of their treatment. The issue gets particularly difficult when we start to talk about 16 or 17-year-olds, whose experience of life may seem to them entirely adult. They may already have children or have served several months as a recruit in the Army, or be married or have done many of the things that we associate with adulthood, though they may not be fully adult. That is why I am hesitant about including in the Bill a specific expectation about what happens to everybody under 18.

My hon. Friend the Member for Stafford made a important point about the needs of 14 to 25-year-olds. The state has tended to treat the 14 to 25-year-old age group as an important extension in respect of the youth service, and not finished all youth service provision at the age of 18 or 21. I am particularly conscious of the psychiatric needs of those at university. Many more youngsters move away from home in this country to go to university at the age of 18, and have specific emotional, psychiatric and mental health needs that universities and local mental health trusts may find it difficult to accommodate. It is important that we have a continuum between 14 and 25 in the provision of mental health services.

Angela Browning (Conservative, Tiverton and Honiton)

Will the hon. Gentleman give way?

Chris Bryant (Labour, Rhondda)

I shall, although I am trying to encourage the hon. Lady not to intervene too much because I would like to brief.

Angela Browning (Conservative, Tiverton and Honiton)

Is it not the case that most hospitals run children and adolescents departments? In other words, they do exactly what the hon. Gentleman is asking for. Usually, it is the children and adolescents department, and adolescence can go on quite a way into somebody’s 20s.

Chris Bryant (Labour, Rhondda)

Absolutely. I take the point that the hon. Lady is making, but what I am concerned about is including in the Bill a stipulation that refers solely to the age of 18. That is why I am hesitant about the amendments that have come from the Lords.

It is not only that there are emergency cases in which the legislation might make it difficult to provide a service directly to the person involved. I have a difficulty with part of the argument of the hon. Member for East Worthing and Shoreham about how long an emergency is. If it was right to place someone in accommodation because it was deemed in an emergency situation that they might otherwise have taken their own life, it may be deemed after 48 hours that it is more dangerous to move that person to other accommodation because the process could be destabilising, as it might involve changing the doctor and nurses dealing with the person and their environment. A clinician in such a situation might deem a move more dangerous than meeting the requirements of a clause in a Bill. Again, that is why the issue of emergencies and special cases is not met sufficiently by the present wording.

It is perfectly legitimate to excoriate the Government and to condemn the Minister for not having done enough in this area. However, it is not right to use legislation to create a crisis that will have to be met by trusts around the country in advance of the legislation coming into force. Let us not doubt that that is what would happen in practice. There may be an enormous problem and many thousands of youngsters may not be receiving appropriate treatment. If so, we shall deliberately create a crisis if we say that appropriate treatment will have to be provided on the day that the legislation comes into force.

Madeleine Moon (Labour, Bridgend)

The hon. Member for Rhondda will, like me, have received representations from mental health providers in Wales, who point out that Wales has the lowest number of adolescent in-patient beds per head in the UK. We in Wales would have a particular problem if a deadline date was set. I wish to ensure that people understand that.

Chris Bryant (Labour, Rhondda)

My hon. Friend is absolutely right. Many people have pointed to the fact that mental health services in Wales are probably some 10 or15 years behind provision in England. I hope that the commitment shown by the Welsh Assembly in the past few years to improving the funding and resources available to mental health services will continue in the next few years.

Placing a clause in a Bill is an inappropriate way to attempt to transform provision. I would prefer us not to legislate in such a way but to make sure that resources go to ensuring that nobody receives inappropriate treatment.

Angela Browning (Conservative, Tiverton and Honiton)

During our deliberations, the Minister has not responded in any way to the amendments tabled in another place.

Rosie Winterton (Labour, Doncaster Central)

Yes I have.

Angela Browning (Conservative, Tiverton and Honiton)

Perhaps I could finish. She has not responded in terms of accepting that the amendments tabled and made in another place reflected not only the wide body of opinion outside Parliament, including the many organisations and professionals that make up the Mental Health Alliance, but the recommendations made to the Government by the scrutiny Committee. Again, the key elements of the recommendations have been rejected by the Government.

The Minister has given one or two hints that she might look seriously at whether her doubts, reservations and concerns, which are about the potential “unintended consequences” of clause 24, can be overcome. If she did, the Government would be able to support the main principle and body of the Bill on Report.

I find it hard to believe that the Government are going to drive the Bill through without making any significant concessions. If there is one measure on which the Minister could make a concession, it is clause 24. We are almost all agreed that mental health services for children should be different from adult services. Children’s services require appropriate settings, assessments by people who are clinically approved and who have an appropriate qualification in treating children, and clinical supervision in all cases. By definition, such services require specialism.

The big question that seems to come up with regard to the Minister’s unintended consequences is the fact that the clause does not provide the means to deliver the services; it has both resource consequences and practical consequences for clinicians. No Government can pass legislation that does not have resource consequences. The question for a Government—any Government—to ask is, “When we decide to legislate, do we will the means to go with the legislation, or do we legislate and then expect those who have to deliver it to do so from their existing resources, which will clearly not be adequate?” Providing resources is not a responsibility of clinicians or PCTs; it is a responsibility of Governments. In introducing the Bill, and indeed the whole raft of legislation in the Queen’s Speech, the Government should have paid due regard to the consequences. The resources need to be there when they legislate.

Rosie Winterton (Labour, Doncaster Central)

Given that the hon. Lady believes strongly that her party will win the next general election, is she making a spending commitment on behalf of her Front Bench? If there are spending implications in this, is she making a commitment for a Conservative Government?

Angela Browning (Conservative, Tiverton and Honiton)

Well, I am certainly going to allow my hon. Friend the Member for East Worthing and Shoreham to give the right hon. Lady a more substantive answer to that. I can tell the Minister that we are on record as having said that when we come to office we will spend proportionately more on mental health services. Mental health is a priority for the Conservative party. However, as a humble Back-Bencher—

Tim Loughton (Conservative, East Worthing and Shoreham)

There is no more humble Back-Bencher in the party.

Angela Browning (Conservative, Tiverton and Honiton)

Thank you. I see that I am getting friendly fire from in front of me. The Minister should in no way underestimate the commitment of the Conservative party to deal with the subject. The question of children, in particular, cuts right across party issues. All parties understand that in recent years, certainly since the 1983 Act came on to the statute book, our understanding of psychiatric services for children has been much clearer. There is much more recognition of their needs, but it is so long since we last legislated that the 1983 Act does not typify our knowledge of the way in which children’s services should be provided.

Clause 24 seeks to fill that gap, and to bring the legislation up to date by referring to appropriate services. My hon. Friend the Member for East Worthing and Shoreham talked about the legal opinion that was sought by YoungMinds from Paul Bowen of Doughty Street chambers. The Minister has agreed to discuss the clause with YoungMinds, because Paul Bowen’s legal opinion states that he does not believe that the provisions will have the effect that the Government, who oppose the clause, say that they will. However he qualifies that by saying that section 142B could be more happily drafted, both generally and specifically, to meet the objection raised by the Government.

So there is a resource for the Government and its officials, in consultation with YoungMinds. The barrister has looked at the Government’s objections and is even offering practical advice on restructuring the clause to satisfy some of the Minister’s reservations about it. Nothing could be more constructive than that. I hope that the Minister will take the opportunity to discuss with YoungMinds not only its concerns but the very detailed legal advice that it obtained, which I am sure will be very helpful to the Minister.

I am very conscious that we are coming to 1 o’clock. While there may be a few tummies rumbling, I am afraid that I still have rather a lot to say on the clause. Therefore, I would like to continue. Written submission MH57 was made to the Committee by Penny Stafford, who has been a mental health service user and has also served as a member of the Mental Health Act Commission. I draw attention to something that caught my eye in her submission that is relevant to the clause. She was asked to carry out an assessment of children and adolescents detained in adult wards. She said that a fifth of the children and young people she visited who were subject to section 136 of the Mental Health Act 1983, which requires them to be taken to a place of safety, were not even taken to a mental hospital; they were detained in police custody suites. I must say to the Minister that we cannot ignore the fact that if, under the existing legislation, children and adolescents are being detained in police custody suites, which is the most inappropriate setting for very vulnerable young people, then it is even more clear that we need to get the right and appropriate settings and clinical support for them.

The Minister rather rolled her eyes when I gave the example from God’s wonderful county of Devon about what is happening in the west country.

Rosie Winterton (Labour, Doncaster Central)

I was surprised.

Angela Browning (Conservative, Tiverton and Honiton)

Well, surprise was a factor. Are the Minister’s reservations about the clause that there will not be sufficient and appropriate services ready out there? We have already dealt with the fact that once an Act receives Royal Assent different parts are implemented at different times. None the less, it is quite clear, and quite clear from the Government’s response to the scrutiny Committee on the question of children’s services, that the Government are only too well aware of what needs to be done. Clearly, some parts of the country have started to provide specialist services, either on a regional basis or by several counties clustering together.

There are also practical issues about access for visiting parents, which I raised with the PCT and the strategic health authority in our consultation in the west country. If children and adolescents have to travel further to access specialised services, then we must ensure that we build into the facility a place for parents and close relatives to stay overnight, rather like they do on children’s wards in general hospitals. If a child is admitted to a general hospital for any period of time, there are facilities for parents to stay. Mothers very often want to stay to help with the nursing of the child. There is no reason why that system cannot be replicated in our mental health hospitals. It is about treating children appropriately. I do not see why that problem cannot be overcome.

We may need to look at the cost of transport for some families. It is quite prohibitive when children are hospitalised a long way from home. I have a mother in my constituency whose child has been hospitalised in Bristol. He has been there for three months. To travel from Exeter to Bristol every day as she wants to, having other children at home, is quite expensive. Perhaps we should be looking at the practicalities of helping families with the cost of hospital transfer. Those are not insurmountable problems. When I look around the Committee, I am sure that you will agree with me, Mr. Cook, that the brains assembled here could come up with a solution to very practical problems like that. They are second-order issues compared with what is proposed—

Ann Winterton (Conservative, Congleton)

I remind the Committee that with this we are considering new clause 23—Minors—

‘(1) After section 38 of the 1983 Act insert—

“38A Hospital and guardianship orders (minors)

In the case of an offender who has not attained the age of 18 years the court shall not make an order under sections 35 (remand to hospital for report), 36 (remand to hospital for treatment), 37 (hospital and guardianship orders) or 38 (interim hospital orders) unless satisfied that the services and accommodation to be provided are sufficient for the particular needs of that offender.”’.

Angela Browning (Conservative, Tiverton and Honiton)

I am delighted to see you in the Chair again, Lady Winterton.

I shall reiterate my points quickly for the benefit of hon. Members who may not have heard me. I was talking about the Minister’s concern about unintended consequences in respect of the addition to clause 24 and I mentioned briefly before we broke for lunch the report by a former member of the Mental Health Act Commission, Penny Stafford, who spoke about the research that she undertook in respect of children and adolescents and in particular—I am sure that we will come to this at a different stage—the impact on children and adolescents of section 136 of the Mental Health Act 1983. She pointed out that, far from them having the opportunity to be taken to a place of safety within a hospital with appropriate services and specialisms for children and adolescents, all too often they are left to languish in police custody suites.

I put that to the Minister because she has, from time to time during our discussion of the clause, suggested that if the Government legislate, it will be for others to have to implement that legislation, with the resource implications that that may involve—in this case, we are talking particularly about children’s and adolescent services. There is a precedent for this. In fact, there are many precedents in the way the Government have legislated elsewhere on behalf of children.

Let us consider, for example, children’s services supplied through local authorities. There is a statutory obligation on a local authority. The Government do not say, “You will do this if you can afford it” or “when resources permit.” For children’s services in the main, when a local authority looks at its annual budget it has a statutory obligation to protect children, as defined by national legislation.

I therefore find it rather incongruous that the Government are prepared to legislate for the protection of children in one area, but when it comes to children and adolescents in the mental health system, a different set of values or rules applies. That is not just inconsistent; it is unacceptable. We all know that throughout mental health services—indeed, the whole area of mental health—there is stigma. There is the old clichÃ(c) that it is seen as the Cinderella service. I am sure that all of us who take an interest in the subject recognise such descriptions, but we are now talking about children and adolescents in that system. It would be invidious to choose one group of people over another, but if we cannot, through our legislation nationally, protect children, we fail—we fail as politicians and we fail as legislators.

I therefore return to the point that I made to the Minister at the beginning of the debate. If there is one aspect of the Bill that she feels she might be able to come to an accommodation on in terms of the Lords amendments, given the overwhelming evidence of the need for us to do something different in this Bill compared with the original 1983 Act, it is surely the aspect that deals with the provision of services for children and adolescents.

I will stop speaking shortly, much to the relief of the hon. Member for Rhondda, who is hanging on my every word as usual, but first I will say this. This is a very serious subject, on which we would all like to see some progress. I must ask the Minister, in considering the issue—I am sure that she will consider it—to take a look at the evidence before her and the legal counsel provided by YoungMinds and to return to the issue on Report. I am sure that she can make a difference to the improvement of services for children and adolescents in respect of mental health—indeed, she has a duty to do so.

Tim Boswell (Conservative, Daventry)

I am deeply impressed and moved by the eloquence of my hon. Friend. The debate has gone on for some time and I do not intend to prolong it, but as someone who normally tries to seek a degree of accommodation and consensus—and may even be criticised for that from time to time—I am encouraged that matters seem at least to be working towards a common position, even if one has not yet been reached. That is true with respect to the central importance of doing something for children’s mental health services, and even with respect to the Minister’s assurance, from which we take some comfort, that, as she snatches away the provision before the Committee, she has made a commitment—although not a precise one in legislative terms—to reflect again before Report. I have a profound hope that she will do that, and come up with something practical to meet the needs that hon. Members on both sides of the Committee, including the hon. Member for Stafford, have described. We need to move on the issue.

Not only have Committee members received representations from YoungMinds and others but they will almost all have been involved in constituency cases. I have not had much experience of the kind, but an example that occurred this year has been very much on my mind. It brings together three points. The first is the importance of education as well as the health services in the support required for what the clauses define as the needs of young people. The young person in question is doing his GCSEs this year. He has suffered severe and acute depression, and difficulties have been encountered about where to accommodate him, including the question of putting him in adult mental health wards. There has been a fight for better provision, which has now been secured, but it has not been easy. A consequence has been the breaking of the link with his county, which has supported him for education purposes, because he has now crossed the boundary into another county.

The second point to make in that context, which has not been brought up so far, but which I think is a subset of the point already discussed by my hon. Friend the Member for East Worthing and Shoreham, is the remote provision of services. They may not be available readily and reliably in each of our local authority areas. That is not unusual in my constituency because of the geography, but people are going outside their area for services and having to deal with different local authorities and primary care trusts. That becomes difficult and stressful at a stressful time.

My third point has not really been made except in the context of carers, and that is the stress that such situations bring on the whole family: the parents and of course the siblings. There was a sibling in the case that I have recalled. Those people see the illness of their close relative and the desperate fight to get appropriate provision at a reasonably convenient point.

Brian Iddon (Labour, Bolton South East)

Some Labour Members remain reticent, but does the hon. Gentleman accept that there is not much difference between his side of the Committee and this side as far as acceptance of the basic principle that children should be much better looked after by the mental health services than has hitherto happened? Does he also accept that the Minister has already promised more than once to go back to YoungMinds, examine the clause, and table a more acceptable one on Report? That is why we remain reticent on the Labour Benches. I believe that the Minister will do that.

Tim Boswell (Conservative, Daventry)

I am grateful for the hon. Gentleman’s intervention. I agree with him about the common commitment, in principle, of the Committee. I have no doubt about that or about the fact that there is a genuine wish to enact that commitment in a suitable and viable form. We have not yet quite got from the Minister an absolute assurance that that will be achieved in the Bill. The purpose of the interventions, as much as anything else, because we all feel strongly about this subject, is to reinforce the Minister’s will to try to seek a common solution. If she does so, none of my colleagues, to my knowledge, would want to claim any particular credit. It would be a victory for our discussions and our commitment.

The only other point that I wish to make in response to the hon. Gentleman on the general importance of the topic is that this debate comes on the back of a widespread national debate on the importance of mental health services. That is why the fact that there is a cadre of members of the Committee who are committed to pursuing the matter properly is encouraging.

I shall briefly make some other points. It is important that we do not confine our attention to under-16s. The Minister has not done that, although once or twice in her presentation she began to do so. Such figures as we have and the rate of pick-up of the undertakings given by her colleague, which will now be transmitted through regional strategic health authorities to primary care trusts to be monitored and reported back, would suggest a fairly slow rate of progress, even on under-16s. Even if the rate is secured to the 99 per cent. or better confidence limit for which we hope, it will leave a problem for adolescent mental health in the 16 to 18 age group. That is of great importance, not least because that group is likely to be the better part of the population or, to put it another way, the age group in which mental health problems tend to present themselves.

I would like to associate myself with the comments made by my hon. Friends on offenders in relation to proposed new clause 23. In my constituency, there is a secure training centre and, adjacent to that, a young offenders institution, which neatly spans the 16-year-old divide. Sadly, I am only too well aware of the risks of self-harm and suicide in those establishments. It is important that there is an appropriate setting and that that is maintained when people have to leave such establishments for more intensive treatment.

As the hon. Member for Bolton, South-East rightly said, we are close to, or are edging toward, consensus. It is important that those on the Government’s side do not caricature what we are saying in new clause 23, and that we do not pretend that there are no difficulties. We need to get it right. It has already been made clear to the Committee—if not, it is clear to me—that there is no question of diverting people’s attention; emergencies override, although somebody will have to deal with them. However, we are anxious that an emergency situation does not slide effortlessly into a kind of prescription for the duration that is not appropriate for the young person involved.

My next point is that there is nothing to stop treatment for a young person being administered in an adult ward when that is appropriate. There is no text to suggest otherwise in the clause as it appears. The measure is about giving treatment wherever it is most appropriate for the young person in question. There may be times, for example when there is a condition that requires expertise or a group or peer group. It might be sensible for treatment for a young person to be given in adult provision, but that should at least be run past a judgment and not assumed.

That brings us to the question of resources, which I am sure is a motivator of the Minister’s reticence, and rightly, because we should not pretend that resources are unlimited. I would be prepared to concede that, if there is a short-term lack of resources—a ward might have to close temporarily because of a building emergency or for refurbishment—it might be more difficult to meet the tests than otherwise. My abiding concern is that we do not allow short-term considerations to develop into a long-term prescription for the young person involved.

Angela Browning (Conservative, Tiverton and Honiton)

I think that the Minister indicated this morning that it is her intention to consider an inappropriate admission of a child to an adult ward as an untoward incident. It would follow that appropriate action would then be taken. In my experience, untoward incidents are very serious matters that usually involve some sort of inquiry—more often than not an external rather than an internal one. At the end of the inquiry, specific recommendations are made. It seems to me that if one were subject to a series of untoward incidents with resource implications at the end, one might as well start off with the resources, rather than be dragged to the same position by one inquiry after another.

Tim Boswell (Conservative, Daventry)

My hon. Friend is right. One should get things right from the start rather than have to make excuses if they go wrong or—dare I say it—produce the old canard that no treatment will be given because of concern that potential treatment might be inappropriate. That is not proper, nor is it professionally likely in the real world; people will do their best.

I am acknowledging to the Minister that there are practical constraints in any situation, including short-term constraints in particular. If I correctly remember this morning’s debate, I may say that it would be of assistance in relation to any defence under human rights legislation if Ministers could show that they were working towards improvements, rather than just folding their arms.

There might be a need for short-term derogations, which the Minister needs to think about and come back to us on, but I want to emphasise that there is no excuse for long-term systemic failure of the kind reported recently in relation to services. The hon. Member for Rhondda rightly said that we are a lot better off than we were 20 or 30 years ago, and I am glad about that; we shall not have a party political argument about it, as it is true. However, that does not absolve us from seeking a better basis for further progress, which is what the debate is really about.

If the Government are confident that they can deliver the improvements, that is all well and good. We have the Minister’s assurances. However, if they can indeed give delivery, why are they reluctant to underwrite that confidence by means of legislation?

Rosie Winterton (Labour, Doncaster Central)

I welcome you back to the Chair, Lady Winterton. The debate has been a good one and the Committee has now agreed that the subject is important. We all want to make changes of the kind for which YoungMinds has been campaigning. However, I thought that the contributions from the Labour Benches were more constructive in that they acknowledged the need to be honest about some of the problems that might arise and to avoid legislating for changes that might have the opposite effects to those intended.

I felt that my offer to reconsider was slightly ignored by some Opposition Members. We are all determined to achieve proper accommodation for young people. YoungMinds has actually been very understanding, and it is as anxious as the Government are to ensure that there is nothing that could be counter-productive. I am sure that no Committee members would actually want that, but it is important to realise that we are legislating on an important issue that affects very vulnerable people and that we need to do that properly.

Tim Loughton (Conservative, East Worthing and Shoreham)

I do not think that anyone would argue that the Minister does not agree with the principle, but we need a commitment that there will be delivery. It is true that she said that she would consider the matter. What will it take to make her change her mind so that there is express provision of the type that is being suggested? She has had some months to consider the matter. Does she need to consult more with counsel or other practitioners? Can she give us some indication of that? Otherwise, we cannot take on trust what she is saying that she would like to achieve in principle. In practice, we need to see more evidence of that.

Rosie Winterton (Labour, Doncaster Central)

I am afraid that if the hon. Gentleman does not trust me, whatever I say will not change his mind.

Tim Boswell (Conservative, Daventry)

Would it not be possible, in this spirit of discovering mutual trust, for the Minister to let the clause lie, go away in good faith and consider what should be done later and, if necessary, excise the offending clause or substitute one of her own on Report? She does not need to remove it now to make her point.

Rosie Winterton (Labour, Doncaster Central)

I cannot do that, I am afraid. I need to ask the Committee to vote against the clause. However, I shall take the proposals away. I need to consider the legal advice that YoungMinds supplied and to talk with service providers and professionals about some of the issues. I also need—my hon. Friends the Members for Rhondda and for Bridgend mentioned this point—to consult Welsh Ministers about the implications. As the hon. Member for Tiverton and Honiton said, some changes are taking place, not least in her constituency, and I hope that hon. Members will accept that it would be wrong to introduce legislation that could have the perverse incentive of making children not get the treatment that they needed.

I will take the proposed amendments away, and I undertake to hold a consultation. I am more than prepared to keep in touch with both Opposition Front-Bench spokesmen about the progress that we are making. I undertake to do that. I hope that, in that way, we can reach consensus on what is the right way to proceed.

Tim Loughton (Conservative, East Worthing and Shoreham)

That is helpful. However, the Minister must appreciate that, just as we need to see more beef, she is apparently unable to trust us not to vote to keep the clause. Is she specifically saying that she has not taken any legal opinion about the viability of the amendment that was added to the Bill in the House of Lords some months ago? The only thing that instigated her asking for legal advice is that an organisation called YoungMinds met her and gave her its own commissioned legal opinion. Surely, she must already have sought legal advice on the viability of the clause. If so, perhaps she can tell us what it was.

Rosie Winterton (Labour, Doncaster Central)

Basically, the advice that I have been given on the clause is as I set it out this morning: there are some problems with it. The proposed terminology discussed this morning talked about the registered medical practitioner, when we are talking about the responsible clinician. There are lots of areas where the proposal is faulty, and there are some problems with it.

I suspect that the hon. Gentleman just wants to vote against what we are saying. I accept that, but all I can say is that I have undertaken to take the proposal away, keep in touch with the Opposition Front-Bench spokesmen and to have close contact with YoungMinds about a range of issues that it raised with me, not least the legal advice that it gave us. I hope that, with that reassurance, the Committee supports me in opposing clause 24.

Ann Winterton (Conservative, Congleton)

The Ayes are 7, the Noes 12.

Tim Loughton (Conservative, East Worthing and Shoreham)

On a point of order, Lady Winterton. I do not think that there were 12 noes. Could we have a recount, please?

Ann Winterton (Conservative, Congleton)

Will Dr. Gibson indicate whether he said aye or no?

Ian Gibson (Labour, Norwich North)

I said no.

Ann Winterton (Conservative, Congleton)

What I announced was correct. Actually, I think that the hon. Gentleman said “No way”!

Clause 29

Ann Winterton (Conservative, Congleton)

With this it will be convenient to discuss the following: New clause 1—Independent mental health advocacy —

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

(2) After section 59 insert—

“59A Independent mental health advocacy etc.,

(1) The appropriate authority must arrange, to such extent as it considers necessary to meet all reasonable requirements, for help from persons to be known as independent mental health advocates, to be available to qualifying patients.

(2) The help available under the arrangements must include—

(a) help in obtaining information about and understanding—

(i) what medical treatment is being provided to the patient,

(ii) why it is being provided,

(iii) under what authority it is being provided,

(iv) the requirements of this Act which apply in connection with the patient’s treatment, and

(v) the rights which can be exercised by or in respect of him under this Act, and

(b) help (by way of representation or otherwise) in exercising those rights.

(3) An independent mental health advocate authorised by a patient or his nearest relative on his behalf may at any reasonable time, for the purpose of providing, in accordance with the arrangements, help requested by the patient or his nearest relative, meet the patient in private.

(4) The appropriate authority may by regulations provide that a person may act as an independent mental health advocate only—

(a) if requirements specified in the regulations are met in respect of him; or

(b) if requirements specified in the regulations are met in respect of any person with whom arrangements are made for him to act as an independent mental health advocate; or

(c) in circumstances otherwise specified in the regulations.

(5) In making arrangements under this section, the appropriate authority must have regard to the principle that the provision of help under the arrangement should, so far as practicable, be independent of any person responsible for the patient’s treatment.

(6) This section applies in respect of the following patients—

(a) a patient who is liable to be detained by virtue of an application for admission for assessment or an application for admission for treatment under Part II of this Act;

(b) a community patient;

(c) a patient who is removed to a place of safety within the meaning of section 135—

(i) in the execution of a warrant under section 135; or

(ii) by a constable under section 136,

(d) an accused person within the meaning of section 35 remanded under that section to hospital for a report on his mental condition;

(e) an accused person within the meaning of section 36 remanded under that section to hospital for treatment;

(f) a patient in respect of whom there is in force—

(i) a hospital order,

(ii) a transfer direction,

(iii) a hospital direction,

(g) a patient, not being liable to be detained under this Act, who is asked to consent to any form of treatment to which section 57 applies.’.

New clause 2—Duty to inform patient of the right of access to an advocate—

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

(2) After section 59A, inserted by this Act, insert—

“59B Duty to inform patient of advocacy provision

(1) The appropriate authority shall have a duty to inform a qualifying patient of the right to seek the services of an independent mental health advocate as soon as is reasonably practicable after the patient becomes a qualifying patient and thereafter, at reasonable intervals—

(a) at all points where decisions are made about care and treatment;

(b) on the use of interventions to manage behaviour;

(c) in any case where an allegation of abuse, including offences relating to sections 38 to 41 of the Sexual Offences Act 2003, is made by a qualifying patient.

(2) In any case where it is proposed that treatment specified by regulations made by the Secretary of State pursuant to section 58(1)(a) should be given to a patient, the appropriate authority shall have a duty to inform, or as the case may be, remind the patient of the right to seek the services of an independent mental health advocate—

(a) before the patient is asked to consent to the specified treatment; or

(b) before a certificate has been given under section 58(3)(b).

(3) In the case of a patient who is a qualifying patient by the virtue of section 59A(6)(g) the appropriate authority shall have a duty to inform, or as the case may be, remind the patient of the right to seek the services of an independent mental health advocate before he is given any form of treatment to which section 57 applies.’.

New clause 15—Advanced decision (nearest relative)—

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

(2) After section 26(4) insert—

“(4A) Where a patient has made an advance decision with regard to the choice of a relative or other person to be his nearest relative, his nearest relative shall, subject to the power of the court under section 29 to appoint an acting nearest relative be determined by giving preference to that choice.

(4B) ‘Advance decision’ means a decision made by a patient (‘P’), after he has reached 18 and when he has capacity to do so and in contemplation that he shall become subject to any act or decision exercisable under the provisions of this Act that his choice of nearest relative shall take precedence over the provisions of subsection (3).

(4C) For the purposes of subsection (4A) a decision may be regarded as expressing a choice of nearest relative even though expressed in layman’s terms.

(4D) P may withdraw or alter an advance decision at any time when he has capacity to do so.

(4E) A withdrawal (including a partial withdrawal) need not be in writing.

(4F) An alteration of an advance decision need not be in writing.

(4G) An advance decision does not affect the liability which a person may incur for carrying out or continuing a treatment in relation to P unless the decision is at the material time valid.

(4H) An advance decision is not valid if P—

(a) has withdrawn the decision at a time when he had capacity to do so, or

(b) has done anything else clearly inconsistent with the advance decision remaining his fixed decision.

(4I) A decision or statement complies with this subsection only if—

(a) it is in writing,

(b) it is signed by P or by another person in P’s presence and by P’s direction,

(c) the signature is made or acknowledged by P in the presence of a witness, and

(d) the witness signs it, or acknowledges his signature, in P’s presence.

(4J) The court may make a declaration as to whether an advance decision—

(a) exists; and

(b) is valid;

(4K) Nothing in an apparent advance decision stops a person—

(a) providing life-sustaining treatment, or

(b) doing any act he reasonably believes to be necessary to prevent a serious deterioration in P’s condition, while a decision as respects any relevant issue is sought from the court.”.’.

New clause 20—Nearest relative (named persons)—

‘(1) Section 26 of the 1983 Act (“definitions of relative” and “nearest relative”) is amended as follows.

(2) In the cross-heading preceding Section 26 after “functions of relatives” insert “, persons acting as relatives”.

(3) Before subsection (1) insert—

“(A1) In this Part of the Act “named person” means any person—

(a) described in subsection (1) below; or

(b) not described in subsection (1) below who is the patient’s carer;

who has been nominated by the patient in accordance with subsection (1A) below.

(B1) In this Part of the Act “carer” has the same meaning as in Section 1(1)(a) of the Carers and Disabled Children Act 2000.”.

(4) After subsection (1) insert—

“(1A) A person is a named person in accordance with this subsection if—

(a) the nomination is signed by the nominator and the named person;

(b) the nominator’s and named person’s signatures are witnessed by two prescribed persons;

(c) each prescribed person certifies that, in the opinion of the prescribed person, the nominator—

(i) understands that the effect of nominating a person to be the named person will give him the role of nearest relative; and

(ii) has not been subjected to any undue influence in making the nomination;

(d) each prescribed person certifies that, in the opinion of the prescribed person, the named person—

(i) understands and is capable of performing the functions of the nearest relative; and

(ii) has not been subjected to any undue influence in agreeing to the nomination;

(e) the nomination has been forwarded to and registered with the local social services authority;

(f) in this part a prescribed person is—

(i) an Approved Mental Health Professional,

(ii) an Approved Clinician,

(iii) a provider of reserved legal service,

(iv) an Independent Mental Capacity Advocate.

(1B) A nomination under subsection (1A) above may be revoked by the nominator in accordance with subsection (1D) below.

(1C) The nomination of a named person is revoked in accordance with this subsection if—

(a) the revocation is signed by the nominator;

(b) the nominator’s signature is witnessed by a prescribed person;

(c) the prescribed person certifies that, in the opinion of the prescribed person, the nominator—

(i) understands the effect of revoking the appointment of a person as named person; and

(ii) has not been subjected to any undue influence in making the revocation.

(1D) The nomination of a named person shall be effective notwithstanding the nominator’s becoming, after making the nomination, incapable.

(1E) A person nominated under subsection (1) above may decline to be the nominator’s named person by giving notice to—

(a) the nominator; and

(b) the local social services authority in which the nominator resides,

to that effect.”.

(5) For subsection (3) substitute—

“(3) In this Part of the Act, subject to the provisions of this section and to the following provisions of this Part of this Act, the “nearest relative” means, in descending order—

(a) the named person,

(b) the person first described in subsection (1) above who is for the time being surviving, relatives of the whole blood being preferred to relatives of the same description of the halfblood and the elder of eldest of two or more relatives described in any paragraph of that subsection being preferred to the other or others of those relatives, regardless of sex.”.

(6) In Section 26(4) after “his nearest relative”, insert “under subsection 3(b) above”.

(7) In Section 26(5) leave out “(3)” and insert “(3)(b)”.’.

New clause 21—Independent mental health advocate—

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

(2) After Section 59 insert—

“59A Independent mental health advocate

(1) The appropriate authority shall have a duty to arrange for assistance to be provided from independent mental health advocates to be available to patients—

(a) detained under this Act, or

(b) subject to a compulsory treatment order,

at the end of the compulsory period of their treatment.

(2) Assistance provided under subsection (1) shall ensure that each of the following matters is addressed—

(a) help is available to patients in obtaining comprehensible information about—

(i) the medical treatment available to them in the community and access to such treatment,

(ii) social and care support in the community and access to such support, and

(b) help is available to patients to exercise their rights and entitlements in accessing treatment.

(3) The Secretary of State may by regulations specify the qualifications necessary for a person to act as an independent mental health advocate.”’.

New clause 24—Independent mental health advocacy (young persons)—

‘After section 125 of the 1983 Act insert—

“125C Independent mental health advocacy (young persons)

(1) The appropriate authority must arrange, to such extent as it considers necessary to meet all reasonable requirements, for help from persons to be known as independent mental health advocates, to be available for patients aged 18 years or under.

(2) The help available under the arrangements must include—

(a) help in obtaining information about and understanding of—

(i) what medical treatment is being provided to the patient;

(ii) why it is being provided;

(iii) under what authority it is being provided;

(iv) the requirements of this Act which apply in connection with the patient’s treatment; and

(v) the rights which can be exercised by or in respect of him under this Act; and

(b) help (by way of representation or otherwise) in exercising those rights.”.’.

Rosie Winterton (Labour, Doncaster Central)

As you said, Lady Winterton, this debate is fairly wide ranging, and it includes clause stand part. Hon. Members have tabled new clauses that would provide for statutory independent mental health advocacy and a duty to inform patients of their right to it. Further new clauses would change the way in which a patient’s nearest relative is identified. New clauses 15 and 20 relate also to the nearest relative. New clause 15 would provide for an advanced decision and a written statement in which a patient can chose his nearest relative. New clause 20 provides that any patient capable of doing so could nominate a person to be their nearest relative. That named person would be on the existing list of relatives provided for in section 26(1) of the 1983 Act or defined as a carer under the Carers and Disabled Children Act 2000. I shall provide some background to the debate about the nearest relative.

Angela Browning (Conservative, Tiverton and Honiton)

Will the Minister give way?

Rosie Winterton (Labour, Doncaster Central)

I shall move on, as my remarks might deal with where the hon. Lady is coming from. In the 2004 draft Bill, we removed the nearest relative because detention was to be authorised not by an authorised medical health professional supported by two medical recommendations, but by an independent mental health tribunal after 28 days. In the light of that fundamental change in the legislation, the powers of the nearest relative were no longer appropriate.

We did create the role of nominated person. As hon. Members might be aware, the pre-legislative scrutiny Committee recommended that the nominated person be given similar powers over the patient’s discharge to those of the nearest relative. In our response, we rejected that recommendation because the safeguards in the 2004 draft were constructed differently from those in the 1983 Act, and we did not agree that the nominated person should be given the powers of the nearest relative in order to provide the patient with the necessary safeguards. The nominated person was, in a sense, a patient representative and did not have the nearest relative’s powers of discharge or detention. The nominated person and nearest relative are thus fundamentally different, and we cannot simply replace one with the other.

The changes that we have made in the Bill will allow patients to apply to the county court to displace their nearest relative in certain circumstances and to nominate a replacement. The change is an addition to the existing provisions and will allow an AMHP, any relative of the patient or anyone living with them to apply. No matter who makes the application, if the person nominated in it is suitable and willing to act in the role, the courts must appoint that person. By making that change, we have therefore increased patients’ input into the choice of an acting nearest relative when they do not have one, or when the one they have is replaced.

Tim Boswell (Conservative, Daventry)

I welcome in principle the extension of choice—there is no problem with that—but bearing in mind our shared experiences with the Mental Capacity Act 2005 and the analogy with a lasting power of attorney, even though it is not a precise one, will the Minister advise the Committee either now or on reflection whether there is any provision, presumably in the court, to remove a nearest relative nominated by the person concerned if, although suitable at the time, they subsequently become unsuitable or evidence emerges as to their unsuitability for continued functioning in that role?

Rosie Winterton (Labour, Doncaster Central)

Yes, of course, because there will be an ability to return to the court to remove that person if they become unsuitable.

Angela Browning (Conservative, Tiverton and Honiton)

On a point of clarification, when we talk about carers, are we excluding paid professional carers?

Rosie Winterton (Labour, Doncaster Central)

I am pretty certain that if the court feels that it is suitable for any individual nominated to be the nearest relative, that will be up to the court to decide. If the court feels that a paid carer is the appropriate person, that will be possible, but it is up to the court to decide whether such a person, if nominated by the patient, will be a suitable choice. It will have to be a court decision whether that is right. If the person is considered suitable, the court must appoint them.

David Kidney (Labour, Stafford)

As for going to a court to overturn a nearest relative, court proceedings must be much less daunting for a big mental health trust or a primary care trust than for an individual patient suffering a mental disorder. As a matter of principle, would it not be better for the person to choose their nearest relative and, if that person were unsuitable, for the trust to go to court to set the person aside?

Rosie Winterton (Labour, Doncaster Central)

My hon. Friend makes a good point. Of course, we want as much patient choice as possible in such difficult circumstances, but it is important to remember what we are expecting of a nearest relative. That person has the power to block an admission to hospital or to request a discharge, for example. Such matters are quite sensitive, because the nearest relative may be the continual carer for the person, but we all recognise circumstances in which a person becomes very ill and sometimes rejects the carer.

Madeleine Moon (Labour, Bridgend)

Let us consider a situation in which I am mentally capable and decide that I want someone to manage my affairs in the event of my losing capacity. I can take out an enduring power of attorney in which I specify an individual to manage my financial affairs. It can be any individual of my choice. If I lose my capacity, that must be watched.

Why is it not right for me as an individual, when mentally well, to have an equivalent of an enduring power of attorney and to decide on the person who, in the event of my losing capacity, I wish to act as my nearest relative? No one needs to go to court to carry out an enduring power of attorney when they are mentally rough. Why is it necessary for someone who perhaps for many years has suffered mental health problems to face the additional trauma of going to court to dislodge a nearest relative?

Rosie Winterton (Labour, Doncaster Central)

That is when the judgment has to be made about what are sensitive issues. We need to be clear about the role of the nearest relative in such circumstances. It is a great responsibility to have the ability to block an admission or to try to discharge someone. The decisions that we have to weigh up are on those circumstances whereby one might wish constantly to change the nearest relative and on very sensitive issues when an individual might feel that the most appropriate person was not just the relative who might be most willing to block an admission or try for a discharge, but someone whom the individual might have met recently.

We have extended the powers to say that, if the person wishes to remove their nearest relative, they can nominate someone else. It is quite important to recognise that we had to weigh up the issue of someone perhaps constantly changing their mind because an individual had not necessarily done what that person had wished them to do, and weigh up the ability to make an application to change the nearest relative and have before the court good reason to make that change. That was why we had to get that balance between those two situations, which are very sensitive because of the powers involved. If a person wanted to nominate an individual to whom power would be given if they were to lose capacity, because their nearest relative was not considered appropriate, they could apply to the court and do so if they thought it the right thing to do and the court said that that person was suitable. I admit that it is a fine judgment, and it is sensitive because of the particular role of the nearest relative and the fact that we did not want a situation whereby somebody could constantly change their nearest relative and make the management of care extremely difficult.

James Duddridge (Conservative, Rochford and Southend East)

The Minister has explained that there is a balancing act. On one side of that balancing act, what costs and time will be involved for the individual going through that court process? I would be scared to go through the process as an able-bodied, able-minded individual, although other people might not be. Also, what will be the cost and time implications for the already stressed court system?

Rosie Winterton (Labour, Doncaster Central)

On the cost to society, if one can put it that way, there needs again to be a balance. We do not want people constantly to go to court, which is why we set strict limits. We want to ensure that there is an adequate check so that somebody cannot decide on a different person over and over again.

The other issue that comes into the equation relates to the point made by my hon. Friend the Member for Bridgend. There may well be people who do not want to be a nearest relative because of the responsibilities that they would have to take on, so it is important that we have a system that includes the right not to be in that position.

Tim Boswell (Conservative, Daventry)

I have been listening to these exchanges with interest. The Minister mentions somebody making a decision to change their nearest relative. Will she clarify whether a person making that decision must have mental capacity at the time? I believe that the inference is that they must, just as they would have to if they were to appoint somebody with the lasting power of attorney for their health care under the Mental Capacity Act 2005. If such a person wished to manipulate the situation to change day by day the person nominated as their nearest relative, would not that be exactly the kind of problem that could in principle arise under mental capacity legislation? Or is the Minister thinking of a situation whereby somebody has a mental disorder and therefore lacks capacity at the time of making the decision, in which case the individual concerned would only be expressing their opinion? Which set of circumstances bites in this case?

Rosie Winterton (Labour, Doncaster Central)

I need to clarify the fact that it is not just the patient who will be able to apply for a nearest relative to be displaced. An AMHP, a relative or a carer who lives with the individual in question could do so if it were considered that something was wrong in the position of the nearest relative and they had become unsuitable. In that sense, it goes wider than just the patient. Whether with or without capacity, they could still apply, but to reassure the hon. Member for Daventry, I point out that there are others who can apply on the patient’s behalf if it is felt that the nearest relative has become unsuitable.

Let me deal with some of the new clauses. As I am sure hon. Members will know, there are already advance decisions under the Mental Capacity Act 2005, but those relate only to refusals of treatment and they come into play when a patient loses capacity. That should not be confused with the advance decision under new clause 15, which relates specifically to the patient choosing his nearest relative and is to be effective as soon as it has been made. Although new clauses 15 and 20 adopt different approaches, they aim for the same goal: to provide the patient with choice over his nearest relative. We are certainly not opposed to the principle of patient choice, but we must be clear that the nearest relative is not the same as a patient representative or next of kin and should not be treated as such.

It is important to remind ourselves that, obviously, compulsion is imposed only when patients do not accept or do not understand that they need help—help that independent professionals agree is necessary. We need to remember that it is not unusual for there to be a disagreement between a patient who wants to be discharged and the nearest relative, who in very difficult circumstances will sometimes reluctantly have to accept that compulsion is the best course of action. If the nearest relative is to continue to exercise the right to block detention or to discharge the patient—both are important safeguards from the patient’s point of view—it is important to have that degree of independence of both practitioners and the patient, and the ability to exercise those powers in the way he thinks best.

The problem with the new clauses is the possibility that that independence would be undermined. Obviously, there are very difficult issues to do with the relationship between the patient and the nearest relative, who may be the carer. There are disagreements. The nearest relative may on occasion feel rejected because the patient feels that they have not done everything possible to discharge them, but we are talking about difficult circumstances in which the patient is under compulsion because they do not accept that they need the treatment in the first place.

There is an issue about whether there is an incentive for prospective nearest relatives who do not believe in compulsion, for example, to put themselves forward and offer to discharge patients whatever the circumstances. That is why we need to build a protection into the system to ensure that the person is suitable.

I hope that hon. Members will accept that the objection is not to the principle of patient choice per se. However, we need a system that keeps a proper check and balance on the issues to do with the nearest relative, while at the same time making some of the changes that we have made in the Bill by extending the ability to replace the nearest relative.

John Pugh (Liberal Democrat, Southport)

On new clause 24, where the right of the patient to nominate is given paramount significance, what specific damage does the Minister think that that is doing or is likely to do?

Rosie Winterton (Labour, Doncaster Central)

In terms of the nomination, we have made it clear that if the patient wishes to displace a nearest relative, they can go to court and put an individual forward. However, we want people to go through that system to ensure that things are not constantly changing, which is a possibility, and that there is a proper check to ensure that the person is suitable to undertake the role. It is a matter of getting those two things right.

On new clauses 1, 2, 20 and 24, which deal with advocacy, I should say at the outset that, of course, the Government recognise the important contribution that advocates can and do make to patients’ care and treatment and we value highly the work done by many advocates who are already working in the health services across England and Wales. The Government are committed to supporting and developing that important role, particularly in mental health services. We have commissioned work to develop specialist training in standards for mental health advocates, as well as systems to support the commissioning of services. However, as a result of what was said in the other place, we have agreed to consider advocacy and return to the matter in this House. The work that we have commissioned is helping to inform that consideration.

The draft illustrative code of practice provides guidance to practitioners on when advocates should be involved. It is true to say that advocates can support patients in understanding the information that is presented to them. Perhaps even more importantly, they support patients in increasing their own involvement in decisions about their care and treatment, including decisions about care and treatment after a patient has been discharged from compulsion. With the support of advocates, communication between patients and practitioners can be greatly improved. There is no doubt that support of that nature can make a dramatic difference to a patient’s experience of detention.

We committed in the other place to consider and return to how advocacy can best be made available to detained patients as well as to those who receive community treatment orders. Although we recognise the huge benefit that advocacy can bring, we must not miss the opportunity to develop an effective tailored advocacy service by rushing through measures on some of the important issues, such as those that have been brought to the fore by hon. Members in the new clauses.

Angela Browning (Conservative, Tiverton and Honiton)

Under the Minister’s proposals, will there be a right in the Bill for a person who is undergoing treatment and who seeks an advocate—an advocate would certainly be needed for an in-patient who wanted to make a challenge through the court, for example—to request advocacy and receive it?

Rosie Winterton (Labour, Doncaster Central)

That is exactly the sort of issue that we are considering. It is about identifying the instances when advocates are going to be most particularly needed and making the best use of their time. That is what we had to do with the Mental Capacity Act 2005, as the hon. Lady knows. During the passage of the 2005 Act, we looked closely at how we could make proper provision, but gave ourselves the ability to widen it through regulations if necessary.

Tim Boswell (Conservative, Daventry)

We have indeed continued the dialogues that we initiated in Committee on the 2005 Act in subsequent discussions, for which I am grateful to the Minister. I take it that her response to my hon. Friend the Member for Tiverton and Honiton is a conditioned yes; I do not wish to take the Minister further than she wishes to go at this stage, but the Committee needs to know. The principle of having advocacy for which there might be some public provision is conceded. Rightly, she now wants to consider what the coverage and structure of that provision should be, and how much will need to appear in regulations. Most of us want to see something happen, but we would not necessarily wish to tie her down at this stage; we would like some assurance that measures will be forthcoming before the Bill has completed its parliamentary passage.

Rosie Winterton (Labour, Doncaster Central)

That is absolutely right. On the point made by the hon. Member for Tiverton and Honiton, there would be legal representation for those going before a tribunal, but sometimes advocates can help ensure that the legal representation gets the point. We need to look at what are the most appropriate circumstances for people both with and without capacity.

Tim Loughton (Conservative, East Worthing and Shoreham)

I cannot help but admit that I am a bit perplexed. The Minister has just said that she is looking at the issue of advocacy, but the Government have had rather a long time to do that—the issue was in the original draft Bill, and the Government appeared to accede to its inclusion. Only a few months ago, when debating regulations relating to the Mental Capacity Bill, we discussed the success of the pilots of advocates, which is now leading to their expansion. What further research does she need to do on the subject?

Rosie Winterton (Labour, Doncaster Central)

First, it is vital to get the views of the Committee. The point of having a Committee such as this is to explore, with such great brains as are here in the room, some of the issues that are now being raised, and to give my hon. Friends and Opposition Members the opportunity to contribute to the formulation of policy. I can assure the Committee that I would not miss such an opportunity for the world. It is important that we have the ability to take the Committee’s ideas on board.

We need to ensure that advocates can function properly and meet the needs of the patients with whom they work and that they can have access to patient’s care plans if necessary and meet the practitioners involved with a patient’s care and treatments. Obviously, certain groups of patients—children, adolescents and those from black and minority ethnic communities, for example—might have specific advocacy needs. We wish to ensure that any statutory provision of advocacy services can take account of such needs by providing advocates with the right skills to do the job.

It is important to say that the Government recognise the point being made in new clause 2 and that it is vital that advocacy services are not underused simply because patients are not told about them. Patients should be told about advocacy services when they need them; not afterwards. For example, informal patients for whom section 57-type treatments are being considered could benefit from advocacy when the treatment is first being discussed, before consent is sought. Patients should be informed or reminded of the availability of advocacy services when the issues are being discussed and not only when the decision to pursue such treatments has been made.

It is important that the new clauses give us the opportunity to discuss some of the issues of advocacy that I am sure hon. Members want to address, and to emphasise how important it is to get it right. That is the importance of this debate. As I said, I hope to return to the issue on Report. In light of that, I hope that hon. Members will accept my assurance that I recognise the vital importance of the issue.

John Pugh (Liberal Democrat, Southport)

I thank the Minister for adopting such a constructive and positive approach to the amendments. The Committee is turning out more as I hoped than as I feared. We are making some progress, albeit fairly slowly, and the Minister must take some of the praise for it.

In her explanation of the nearest relative’s replacement by a nominated individual, I understood the Minister to be suggesting that it was not the principle of new clause 24 that she objected to but the route that would be followed to identify the person to be nominated. I am quite happy to take away new clause 24 and reconsider that, but the issue of advocacy, as was emphasised on Second Reading, is a big issue for a lot of hon. Members. Advocacy is well understood, and the Mental Capacity Act 2005 illustrated how successful, useful and positive it can be. New clause 24, which would simply establish the right to advocacy, and new clause 2, which would establish the right to be informed about such advocacy, are relatively detailed amendments. We are suggesting that a well-understood phenomenon be attached to the Bill.

I am happy to accept the Minister’s assurances and to look forward to what might occur on Report, but I should like to make a few fairly simple points about why advocacy is so important. The general assumption in mental health is that the therapist has the good of the patient at heart. Most therapeutic relationships are entirely satisfactory, but some can be difficult and problematic, and that is where advocacy has a place and a part to play.

I had the opportunity many years ago to teach evening classes at what was then Park Lane special hospital, later called Ashworth hospital. In that class were a number of people. One chap, whom I remember particularly, was a gentleman called Peter who was astonishingly articulate, very good at arguing his case and forceful in putting points and constructing arguments, although in a perfectly friendly and amicable way.

Many years later, I saw the same gentleman on TV in a programme about Park Lane. He was arguing with the consultant psychiatrist exactly as he had done in my classes. I had encouraged that behaviour, because we were discussing things, but the programme carried on to show that the psychiatrist thought that his very stubbornness in failing to admit that there was something wrong with him was indicative of the fact that he was still ill and should be detained. I believe that he was originally detained for putting a Molotov cocktail through a letterbox after an unfortunate romantic relationship had turned out wrong. He knew that and had changed, but the very fact that he was arguing his case left him in a Catch-22. Because the psychiatrist presupposed that he had a mental disorder, almost anything that he did was seen as indicative of that mental disorder.

In a classic experiment called the pseudo-patient experiment done years ago by American psychologists, people with absolutely nothing wrong with them were admitted to a mental hospital to see exactly how they would be treated. They behaved entirely normally. At the end of the day, as they were researchers and it was their project, they retired to their rooms and secretly wrote up the notes of their day’s observation on the mental wards. The ward staff spied on them, went back to the office and wrote down, “Exhibits strange writing behaviour”.

It is sometimes quite hard for a therapeutic relationship to be satisfactory without sufficient subtlety on the part of the therapist. Many patients, including Peter, will therefore at times require an advocate to get the right outcome—one in which their ailment is properly identified, therapy is properly in place, and detention is either put into effect or not.

New clause 24 would introduce similar rights for children. It might quite rationally be suggested that children already have advocates in their parents. However, some of us know how complex parenting can be, and how strange is the take of some parents on the process. I have genuinely observed a little lad waiting to see a consultant psychiatrist. He was as good as gold, but every time he moved a limb or his tie moved out of place, his father shot across the room, straightened the tie or removed the crease in his trousers or whatever, and told him to sit up. I could see the problem there and then, and I would hate that father to be the sole advocate for this child, because he was part of the problem.

I do not subscribe to the R. D. Laing theory, as set out in “Sanity, Madness and the Family”, that it is our family that actually drives us mad. However, it sometimes happens that way, so there is a case for advocacy for children, and there is certainly a case of advocacy for adults. If the Minister is considering the point, however, I am prepared to develop it further and bide my time.

David Kidney (Labour, Stafford)

There are two groups of proposed new clauses. One group relates to the role of nearest relatives and the other to the advocacy role. I shall first speak on new clause 15, which was tabled in my name and which relates to the role of the nearest relative.

The Mental Capacity Act 2005 has opened the gates both in this area of law and in others. We shall be dealing later with the Bournewood class of vulnerable individual, and there is a raging debate among mental health practitioners on issues of capacity and mental disorder. New clause 15 seeks to bring a further issue to the fore—that of advance decisions.

The Mental Capacity Act formally established independent mental capacity advocates, and some of us are seeking to replicate that concept in the Bill. That Act was a landmark piece of legislation in many ways, though it did not, of course, mark the beginning. The common law and the courts had already recognised so-called living wills and advance directives for medical treatment long before the Act was passed.

I accept what my right hon. Friend the Minister has said about there being a world of difference between the nearest relative under the Mental Health Act 1983 and somebody’s next of kin or advocate; they carry out completely different roles. The nearest relative carries out some important formal roles under the 1983 Act that have real substance and meat, and we are seeking to amend that Act.

My proposal is that adults with mental capacity who are not suffering from mental disorder should be able to specify the person whom they would want as their nearest relative to make crucial interventions on their behalf were they to be ill at a later date, rather than having to rely on the list in the 1983 Act. I am not decrying the value of the list, although in kinship terms the language of it—with its approach based on ties of blood and with references to “whole blood”, and “half-blood”—is slightly old-fashioned. The order of individuals in the same class, such as brothers and sisters, is determined by age and nothing else. There is very little mention of carers at all, except that a relative who has been living with the patient as a carer can displace all the other relatives.

The list is a little staid and out of date, and its role should be that of a useful default position. I would prefer that it be used only if a patient has said nothing, rather than being the decisive factor even when a patient wants something different.

Tim Boswell (Conservative, Daventry)

Conversely, does the hon. Gentleman agree that if a person takes the step when they have capacity, perhaps with the knowledge of previous mental health problems, of appointing someone with the lasting power of attorney in relation to their health care decisions, as they can under the 2005 Act, there should be a presumption that that person can discharge the functions of the nearest relative unless there is an issue of suitability for a court to consider?

David Kidney (Labour, Stafford)

The hon. Gentleman makes an important point. I was flattered to find that I have attracted the support of Rethink for new clause 15. In its briefing in support of the new clause it refers to the point that he has just made: that a person with capacity and not suffering from a mental disorder can appoint with a lasting or enduring power of attorney someone whom they want to make decisions about their health treatment for them in the future. That might be mental health treatment. However, the Bill refers to the nearest relative instead of the person appointed. I am trying to bring mental health legislation in line with the more modern mental capacity legislation. The person appointed should make the decisions, not the nearest relative, but if nobody is appointed the nearest relative list is fine and dandy to take over and have its role.

I know from the debates in the other place that my right hon. Friend the Minister will say that we do not want people to make fanciful appointments of the person next door, who will do everything possible to get them out of the hospital rather than have their interests at heart. That itself is a fanciful argument. The new clause that I have drafted—I confess that I have drafted it—would require a certain amount of formality for a person to consider the matter and appoint someone to the role of their nearest relative. They would have to put it in writing and it would have to be witnessed by somebody else. They would have to sign it and understand and acknowledge their signature in front of the witness, who would then sign as well. There would be a proper element of formality in appointing someone.

Ian Gibson (Labour, Norwich North)

Does that also mean that they would not have to give reasons for picking one advocate over another and that it would be their decision absolutely?

David Kidney (Labour, Stafford)

Absolutely. That is perfectly correct.

We might assume that the nearest relative’s role is to have the patient’s best interests at heart. To harp back to the discussions that I had with psychiatrists in the Stafford constituency before we began our deliberations, they told me that many times their problem is that they cannot engage the nearest relative according to the list in the 1983 Act, with the treatment being given to the patient. They know who the relevant person is by looking up the patient’s family tree and the 1983 Act, but they cannot get them to come and take an interest in what is going on with the patient. That seems a terrible indictment of a law under which we want the nearest relative to act as a supervisor of what is going on on behalf of a person who temporarily, because of a mental disorder, cannot do it for themselves.

The Government acknowledge that that is sometimes a problem by making the provision for the nearest relative to be displaced through an application to the county court. All Governments have done so. My point to the Minister in my intervention on her earlier was that it is one thing for a well-resourced trust, with great experience of lawyers and courts, to go to court to try to get an unsuitable nearest relative displaced, but quite another for a vulnerable patient to be told that the 1983 Act states that someone in particular is their nearest relative and the person whom they must have.

We have received briefings from other organisations. New clause 20, which proposes the named person, is supported by the Mental Health Alliance. Its briefing mentions some of the court cases in recent years that have shown the limitations in the current approach. In the case of J. T. v. United Kingdom in 2000, a woman did not want her mother to be her nearest relative because her mother was living with her stepfather, whom she alleged had abused her. In answer to that European Court case the Government gave undertakings to change the law. The only law that is being proposed is that the vulnerable woman must apparently go to the county court to say that she does not want her mother to be her nearest relative because she is living with the man who abused her. It is quite an uphill job to expect the person to do that.

Rosie Winterton (Labour, Doncaster Central)

I want to make it clear that, under the changes, we are saying that it is not only up to the individual; we recognise that such issues could put an individual in difficulties. An approved mental health professional or another relative can make an application on the patient’s behalf. We are not entirely leaving matters up to the patient.

It is also important to recognise that the role of the nearest relative is not to act as the patient’s representative or on behalf of them. It is a different role from that. It is not a replacement for an advocate, for example, or a patient representative. The person needs a certain degree of independence because of the issues involved in being able to block admission or ask for discharge. That careful balance must be reached.

David Kidney (Labour, Stafford)

My right hon. Friend has made two points, neither of which I accept. First, she said about the specific example that I cited that perhaps another relative could go to court instead of the vulnerable patient, and that that person should challenge the mother and say that she should not be the nearest relative. That is an unlikely scenario. It is more likely that the patient appoints someone else instead of the mother, and that the trust, which thinks that the mother would be a better appointment, takes the matter to court to challenge it.

As for the second point, I entirely agree with my right hon. Friend that the nearest relative is much more than the representative or the spokesperson of the patient. The person has important rights, such as the right to apply for admission to hospital; the right to apply for guardianship; the right to try to block compulsory admission for treatment; the right to require an approved social worker to consider the need for admission to hospital; the right to discharge the patient from section and the right to be consulted about any decision to detain.

A relative who perhaps has not been in touch with the patient for a year or two will not necessarily be the person to exercise those rights compared with, say, a best friend who has lived with the person for many years but is not married them and has been the carer, but who is not even on the list at present. That is the difference.

Tim Boswell (Conservative, Daventry)

I have just reflected on what the hon. Gentleman said. Does he agree that it is almost possible to argue to the Committee that a nearest relative might be, if not formally unsuitable or judged unsuitable, in a position that gave rise to concern? A person might need an independent advocate to approach the court to review the possibility of appointing a separate person as the nearest relative.

David Kidney (Labour, Stafford)

Mostly, I do not find that intervention helpful because I was trying to keep separate the argument about nearest relatives from that about advocates. I suppose the intervention made it clear that the role of advocacy is completely different. The hon. Gentleman is right. An advocate then might help by standing shoulder to shoulder with the patient to put forward their case for them.

Brian Iddon (Labour, Bolton South East)

I have a problem with advance decisions, which I put strongly on the record when the Mental Capacity Bill was being discussed. In fact, together with other hon. Members, I fought placing advance decisions in statute law. I should have preferred them left under common law. My hon. Friend’s new clause clashes with some of the proposals in respect of the advance decisions that were agreed, sadly, in the debate on the Mental Capacity Bill.

For example, proposed new subsection (4K) refers to an “apparent advance decision” stopping a person. Will my hon. Friend clarify the meaning of “apparent”? The proposed subsection states:

“Nothing in an apparent advance decision stops a person—

providing life-sustaining treatment”.

When discussing the Mental Capacity Act, we had a terrible debate on artificial hydration and nutrition, which the medical profession regards as medical treatment. Has my hon. Friend considered his new clause along with the agreed part of the Mental Capacity Act? There seems to be conflict.

Secondly, it is generally recognised—

Ann Winterton (Conservative, Congleton)

Order. I think that the hon. Gentleman has made his point.

David Kidney (Labour, Stafford)

Again, my hon. Friend takes me down an avenue that I do not wish to go down. He has some strong views on a slightly different subject that is not at all relevant to this one. However, just to deal with the question that he asked me about proposed new subsection (4K), the point is that if there is some doubt at the time of presentation for treatment in a mental health facility as to whether there exists such an appointment, or there might be some legal challenge to that appointment or some court case necessary as a result of disagreement about it, people can carry on and give treatment in the meantime until that doubt is resolved.

I want to complete my arguments about how the present law is not currently as effective as it might be, due to court decisions arrived at since it was enacted. The latest one was R (E) v. Bristol city council in 2005. The court said that a patient with capacity could decide that their nearest relative under the Act must not be consulted by health professionals. It seems that a person can say, “All right, the Act says that’s my nearest relative, but I forbid you to have anything to do with them.” The treating practitioners will respect that decision, because a court now says that that is the right thing to do as well. Yet that person cannot go a step further and say, “I don’t want you to tell them, but I want this person to be my nearest relative.” The two things do not hang together. It would not surprise me, if we just leave the law as it is now, if there were another court challenge later, saying that that was not acceptable. Let us please get the legislation right first time and not wait for the courts to tell us that we got it wrong. Making an appointment would give us a procedure that is more flexible and more tailored to the circumstances of the individual patient, avoids the great expense of court challenges in most cases and gives us a degree of speed and certainty from the outset.

I should like to say a little bit about the other new clauses on advocacy, because I am a strong supporter of what I would call citizen advocacy. Once upon a time, I was a lawyer. Many lawyers are good at some kinds of advocacy, but they charge a lot of money for it. However, in this debate, we are not talking about that kind of advocacy. I have a slight interest to declare, because in Staffordshire, back in the 1980s, I was a founding member of Advocacy Services in Staffordshire or ASIST—a citizen advocacy scheme. Over 20 years, both as a member of that organisation—I am its honorary patron—and as a Member of Parliament, I have had contact with advocates on behalf of the people for whom they advocate and I know how important their role is.

Back in the 1980s, giant hospitals housing many people, some with nothing more than learning difficulties, were being closed and people were being given proper homes in the community. At that time, advocates were appointed who did fantastic work to ensure that those people were not just taken from one dumping ground to another. Vulnerable people received a superb service in the community, because of the help given by advocates. Many times as a Member of Parliament, I have been contacted by advocates who are simply standing shoulder to shoulder with a person who is entitled to ensure that their voice is heard in the right places. I have never seen anything other than appropriate contact with MPs to enlist help for a person where an MP’s intervention is warranted. That is why I support advocacy.

I understand that the Government support advocacy, too. I have just mentioned that the Mental Capacity Act 2005 makes more provision for independent advocates to help people in cases involving mental capacity. We are looking for the Government to provide for similar independent advocacy in mental health cases. The Government have paid for research and for formal courses of study to be worked up, leading to recognised qualifications for people to be citizens advocates. A lot of work is being done in that regard at present. I understand the Minister’s saying that it takes time to reach a position of being satisfied that a body of advocates is available, we know what their role is, we can rely on them to do their job well and we know how to fit them into the legal framework affecting everybody else. I am prepared to be patient and to see the Government’s proposals, but I congratulate those who have drafted the new clauses dealing with advocacy on making sure that the issue is on the agenda as the Bill passes through the House.

Angela Browning (Conservative, Tiverton and Honiton)

I should like to touch on two points, the first being the question of the nearest relative. I am of the view that the current legislation—the list set out in section 26 of the 1983 Act—is now somewhat anachronistic. It reads like an inheritance tax situation in which the bloodline goes down through the family and people find that they have been left a lot of money by a nearest relative whom they have never met. The idea when talking about somebody’s mental health that a person, simply because of a blood relation, is suddenly responsible for or even interested in them, is not how society works now. Many years on from the 1983 Act, families tend to be more disparate, and other relationships come into play.

The Government would do well to reform the definition of the nearest relative. Like others, I advocate the views of Rethink and others in the mental health world who have offered proposals, such as the suggestion that the primary carer should be top of that list. The primary carer may well be a blood relative—it may be a mother—and they may not, but their views should be taken into account and the patient should have the opportunity to nominate them if they are the person whom the patient trusts the most and with whom they have the most day-to-day contact. They might be somebody who takes day-to-day responsibility for the patient’s well-being.

Ann Winterton (Conservative, Congleton)

I want to take this opportunity to clarify for the hon. Lady and my hon. Friend the Member for Stafford that someone living with the person for five years will be a nearest relative, and that a relative who cares for a patient is prioritised in the proposals and will go to the top of the list. The position is not quite as simple as it was. The hon. Lady is quite right to say that the 1983 Act was somewhat out of date. That is why we want to make some of the changes that we are making.

Angela Browning (Conservative, Tiverton and Honiton)

I welcome that intervention, but I also want to flag up the fact that the patient’s view of the nearest relative, whether there is a bloodline or not, is also very important. I hope that the Minister will listen carefully to the representations made today about how patients themselves should have input into deciding who the nearest relative is likely to be. From many of the case studies provided to the Committee, we can see that that would be a step forward.

I remind the Minister that in the famous Bournewood case, HL’s carers, although they were paid carers, had responsibility for his day-to-day care, whereas his nearest blood relative had nearly no contact with him at all. They were well placed, had the psychiatrists at the time been willing to engage them in conversation, to explain his behaviours, how he reacted to certain situations and so on. For some patients, advocacy is not just about their mental disorder, but about their additional difficulty in expressing themselves or communicating, particularly to people with whom they are not familiar, and about the complex situations that arise if the right person is not there to interpret how they respond and behave on a day-to-day basis. I have probably bored the Committee enough by now with my accounts of how people with autistic spectrum disorders behave, but I return to discussing that group of people because they are particularly vulnerable, as are people with learning disabilities, in terms of how they present and how important it is that the person who interprets that behaviour is the person who really understands them on a day-to-day basis.

May I move on briefly to advocacy? Advocacy needs to be there for the patient, but in some circumstances it will be the nearest relative who may need to ask for advocacy on behalf of the patient. The nearest relative may not feel that they can cope with a certain situation. I still have concerns about the idea that the court is the only route down which someone can go. For someone who is an in-patient, the stress and strain of that being virtually the only route worries me considerably. I ask the Minister to examine that point. I believe that advocacy should be available not only to the patient but to the nearest relative or the patient’s representative if, in certain circumstances, they feel that advocacy is needed.

I put it to the Minister that the nearest relative may well be a close blood relative. I hope that hon. Members will understand this. If someone is a blood relative of a person who is mentally ill or incapacitated, although they try to do their best for them and to put the case for them, emotionally that is a very difficult thing to do. I can stand up and advocate for any of my constituents with an autistic spectrum disorder, but when I have tried to do it for my own son, I have found it enormously difficult. People may find that difficult to understand, because I can usually bat for England on just about anything, but the emotion is quite intense and you really want to do your best for them. I can think of times when I have called on other people to make the case for me even if I am sitting in the room.

I therefore ask the Minister to bear in mind the need for the advocacy service, however she determines it in her deliberations, to be available in certain circumstances not only for the patient but, often, for the patient’s nearest relatives, who may well say, “In these circumstances, we understand the situation, but the case will be better put by somebody who is one step away emotionally from the situation we’re dealing with.”

Meg Hillier (Labour, Hackney South and Shoreditch)

It is a pleasure to serve under your chairmanship, Lady Winterton. It is also a pleasure to speak on this issue, which is of great importance to so many people in the mental health system and particularly to many of my constituents. If I may, I shall preface my remarks with thanks to some of the groups that I have managed to speak to over recent weeks and months since arriving in the House. My local Mind group has been particularly helpful. The Psychiatric Rehabilitation Association, the Turkish and Kurdish advocacy group, Derman, and the Revolving Doors Agency in particular have been very helpful. I have also had the opportunity to talk to a number of mental health service users in my constituency and professionals in Hackney and elsewhere, who have all had views on the issue.

I shall speak to new clause 21, which I tabled, and make some general comments about advocacy as outlined in new clause 1. Since tabling my new clause, I have been advised that it might be better placed under section 117 of the Mental Health Act 1983, which relates to aftercare, but I leave that to those who are more expert than me at drafting to debate, because the main aim of tabling the new clause was to raise the issue of advocacy. I was comforted somewhat by the comments of my right hon. Friend the Minister, but I thought it important to flag up the issue, because it affects so many people.

In Hackney, people are disproportionately affected in respect of the mental health system by being admitted to hospital. In fact, admissions for schizophrenia are three times higher for my area than the English average. The issue also affects many residents in my constituency who do not suffer from mental health problems themselves, but who deal with the fallout from people not having support systems. I wanted to highlight their concerns, too. It is partly about health, and partly about advocacy for social and ongoing care support, which is the focus of new clause 21.

An advocacy-armed hospital is important because of the overlap between mental health and social services. There is a revolving door of people going in and out of hospital. I do not believe that the proposed measures will stop that, because if a person refuses to receive their medication, advocacy will not necessarily make them take it or get a better service, but it will help them to access other services. Maybe in the long run, that will ensure that chaotic lives are made better.

We can see the impact that advocates for people with chaotic lives who are in the mental health system when they use other services could have; for example, people in A and E or those who have been admitted to prison could be helped to access their welfare rights. Excellent outreach work is done up and down the country, including my constituency, that supports people through maintaining work and in the community. We need such a continuum of support, but unless people have the right to argue for support and the advocate to help them, they often lose out.

This quite startling example was given to me by the Revolving Doors Agency: half the people referred to mental health treatment from police stations have not made a legitimate benefit claim. That is to say that they are entitled to benefits, but they have not made a claim. As I said on Second Reading, not making a benefit claim can lead to other problems. It might mean that a person gets no housing benefit; without that, they can lose their tenancy. Those things impact on a person’s lifestyle and mental health and might lead to unnecessary readmissions to hospital. If we tackle the issue of advocacy, we can tackle some of the longer-term issues.

I will not go into issues concerning particular instances of mental health among black and minority ethnic groups as the new clause does not deal with them. However, it raises the issue of the complexities of dealing with people with mental health problems who might have language issues such as English not being their first language, or literacy issues. Those complexities arise in my constituency and others. Also, cultural differences might not be fully recognised by professionals. With the right type of advocacy, the issues can be better addressed and understood by the professionals dealing with them. For example, who is best placed to advocate for a middle-aged Turkish man, who is not literate in Turkish and unable to speak English well, who also has other issues arising from his arrival in this country? We need to look sensitively at who can provide advocacy for such people in particular.

Professionals in Hackney deal with much more than health when they deal with mental health. The issues of advocacy help them to tackle that. The professionals to whom I have spoken would welcome good advocacy. I mentioned residents. As one consultant said:

“In Hackney at any time on a 20-bed ward, there are one or two people we can’t send back to their flat because there is a residents’ petition.”

If those people were able to return home and access the full support services that they need, there would be fewer problems from residents. I will not go into some of the residents’ issues that I deal with, but many understand mental health issues—they are not negative or stereotypically against people with mental health problems. They simply say that such people need help and access to help. Without proper advocacy and support, many people cannot access that level of support, particularly single people and those who do not have family support, which is the case for many of my constituents.

There is a huge issue about the dearth of support available in police stations and courts in accessing health and social care, which is why the new clause is framed as it is. The system and, to a degree, the Bill focus on high-level risk, but ensuring that people at the lower end have access to the support services that I mentioned can prevent high-level risk in the first place. Advocacy can make a positive difference to people’s ability to access support.

The new clause deliberately does not go into the definitions of what an advocate may be. I have been an advocate for someone with a learning disability, but I recognise that there are different types of advocate. However, there is an issue about rights and choice. In the benefits system there is the role of an appointed person who can act for someone without mental capacity. As we have heard, a family member can often be a good advocate, but they can equally have problems in being an advocate. Mental health professionals have said to me that an experienced solicitor can often be the best advocate for a patient when dealing with the compulsion element of treatment involved in that narrow but important area of law. I have seen good social workers acting as advocate for their patients.

Should the advocate be independent? The point is that there should be a right to independent advocacy. I hope that my right hon. Friend the Minister will consider explaining and outlining that right to patients, as it is outlined in some of the new clauses. The Bill has previously included advocacy, so I take what she says in good heart. I recognise that new clause 1 is effectively the same as part of the draft Bill of 2004, which included the issue of advocacy.

I am not naive enough not to recognise that there are resource implications, and I hope that my right hon. Friend will comment on the work going on in the Department to consider the issue. I argue that although there may be such implications, of which none of us is unaware, there are also potential savings both social and financial. If we tackle the issue the right way around, we can save people from being bounced into admission and compulsory treatment or at least reduce the likelihood of it, particularly in relation to after-care.

A pilot was conducted by Derman, a very good group in my constituency that works for the well-being of Turkish and Kurdish communities. It was set up 15 years ago by a visionary group of GPs, the health authority and members of the community, and it has recently conducted a highly successful pilot with the Latimer health centre, working with those with minor to moderate mental health problems. It has been proven to reduce admission to hospital and I recommend that my right hon. Friend examine it as part of the work that she says is going on in the Department of considering advocacy issues. Will she comment on whether the Government’s agenda of delivering race equality in mental health, which requires that everyone of a black and minority ethnic background have an advocate, is working? Has any analysis of it been done by the Department, and is there any likelihood of its being given greater resources?

When I talked to a number of groups in my constituency about advocacy, the range of views was interesting. The clear view was that advocates needed to have good professional training, and that was backed up by a long-standing consultant psychiatrist who said that sometimes the advocates are a bit too timid, and that he would welcome advocates being stronger in their views as it can make communication better and enhance the patient-psychiatrist relationship.

The Making Decisions Alliance has made a number of submissions to the Committee, which Members have no doubt had a chance to examine. It calls for trained advocates and would like them to be separate from the best interests assessor. Training, support and the definition of an advocate are key, and I hope that the Minister will give some guidance about what the Department thinks might work. One mental health professional to whom I spoke said that advocates needed to be much more focused, and another said that they were very useful, but needed training and support. As I said, one said that stronger advocates would make communication a great deal better.

To return to the issue of resources, the borough of Hackney as a whole—not just my constituency—received only £40,000 for advocacy for those who are unbefriended under the 2005 Act. Of the top 20 users of the accident and emergency at my local hospital, Homerton hospital, 12 are known to the mental health trust. If we add to that the other costs to the system, let alone MPs’ surgery time, taken up in dealing with people who have problems but no one to help them to access services, we see that we can make a breakthrough by including advocacy in the Bill.

My right hon. Friend the Minister has said that the Government are committed to supporting and developing the role of advocates, and I have indicated to her that I see my new clause as probing, but it is important to consider advocacy beyond the point of legal compulsion. If we do not provide support for people after they are released into the community, as patients have said to me, it can be frightening for them to be out there on their own. Sometimes, however, being out there on their own is the right next step. It is not necessarily right to carry on compulsory treatment in the community, but sometimes that may be the case. I hope to speak on that element of the Bill later. It is important that someone is not left out there without knowing where to find support. Therefore, the right to independent advocates in that situation is particularly important.

I am glad that my right hon. Friend the Minister has acknowledged a role for advocacy post-detention. I am glad that she is looking into it, and I hope that in her responses, she can pick up on some of the brief points that I have made. Like my colleagues on this side, I trust that she is genuinely looking at the issue. I have many users and professionals in Hackney who will be listening closely to what she has to say next.

Tim Boswell (Conservative, Daventry)

May I commend the remarks that have just been made by the hon. Member for Hackney, South and Shoreditch both in terms of looking at a more holistic approach to the needs of the people who may have mental health problems and also in the reasonable point that she made about early and appropriate intervention, or the maintenance of support after discharge, which is very important in reducing the overall cost of what may otherwise become a very expensive procedure? We have all welcomed the fact that the Minister is edging towards an advocacy service. I think that that is the main thrust of the provisions, but not the exclusive one.

I will just add an insight before I speak on the issue of advocacy. I feel that I have irked the Committee because I served on the Committee which considered the Mental Capacity Bill. Let me pick up the issue of the nearest relative and the interesting remarks made by the hon. Member for Stafford. As a professional—I am somebody who admires professionals from afar—he understands the importance of not getting into too much legal process, if that can be avoided. On reflection, it strikes me that after 25 years we are sitting in a world in which legal process comes first and the rest nowhere. We all know why that is, not least because of the very severe powers of detention that exist under the Mental Health Act 1983.

In developing the code of practice, I hope that the Minister will emphasise wherever possible alternative means of resolving disputes—mediation and otherwise. I believe that advocates could be active participants in that. One of the difficulties for people who have mental health problems and who may have other and multiple problems—they may not be very articulate and may not have mental capacity either—is to find somebody who can express their views and opinions so that they can have a civilised dialogue with the psychiatrist or other professional in order to map a sensible course of treatment or to challenge the treatment that is already being prescribed for them. That is a grown-up debate that we need to have. Frankly, some of the people involved and the carers and relatives themselves need support in articulating that role. In our constituency work, not necessarily linked with mental health, we are desperate to find out what constituents want in order to come up with some means of helping them. Therefore, the more that we can take the law out of the area—necessary as it is—and make it at least possible to have a grown-up discussion between articulate, well-trained, reasonable and engaged professionals, the better it will be.

On advocacy, I think that the innovation in the Mental Capacity Act 2005, which the Minister was engaged in, was an entirely sensible one. It came from the common sense of the Committee, as there is common sense in this Committee, that we should move on that matter. As hon. Members have already said, the exact nature of an advocate may change over time. The ones who are appropriate and the categories of people for whom they are appropriate, have got to be considered. It has been left rather late in the Bill, but I hope that it will proceed.

If I may simply put down a case for advocacy, I would put it in terms of the principles set out in clause 10. There are two of those in particular. The first is

“respect for patients’ past and present wishes and feelings,”

and the second is the need to minimise “restrictions on liberty.” We could have an endless and rather fruitless philosophical debate about whether provisions for advocacy under the 2005 Act bear on more serious cases—and in certain instances, more life-threatening or life-changing decisions—than those dealt with under mental health legislation. However, in both cases, wishes are extremely important and need articulation and support.

Thirdly, the distinctive feature of the mental health legislation is that the power of compulsory detention—the deprivation of liberty—hangs over people. That is as strong a case for advocacy, perhaps an even stronger one, than the one in relation to the 2005 Act.

We Committee members have a general role to play, which we have not always articulated. I sense that there will be debates in the next few years about the powers of the state and coercion on one hand and, on the other, the power of the individual and the need for the individual to have appropriate support. We need to try to create parity between those two needs. We will never decide what is needed at any one time and needs may change over time. However, it is clear that there is a need for somebody to stand up for a large population of distressed, disempowered, perhaps not very articulate and very troubled people. Such people need to be able to argue with officialdom in a way that they can understand, because they are familiar with the terms, to determine the best course for them, and their carers or relatives. That is self-evident and, in the long run, it will be for the good of the system and will not necessarily cost more.

The system would really be destroyed if the whole thing exploded into litigation because it was improperly handled or, perish the thought, some dramatic incident—an assault, murder or whatever—took place because the people in the system had not been adequately supported. That is a strong argument for a move in the direction that the Committee seeks through the new clauses and I do not think that the Minister has ruled it out. We look forward to her assurances.

Ann Winterton (Conservative, Congleton)

I will be brief, as our debate has been slightly curtailed due to the Liberal Democrat’s choice of mental health as the subject for its Opposition day debate, which is rather unfortunate, given that we were going along very well. I should like to emphasise a couple of points for my hon. Friend the Member for Stafford and the hon. Member for Tiverton and Honiton. It is important to remember—it came up a couple of times—that the person who has lived with someone for five years will be the nearest relative.

David Kidney (Labour, Stafford)

Is my hon. Friend planning to amend the 1983 Act to say what she has just said? Currently, section 26(7) says that someone who is not a relative and has lived with a person for five years can become a relative in the list—but they are at the bottom, not at the top.

Ann Winterton (Conservative, Congleton)

I gather that it will be fine. [Laughter.] I promise to write to my hon. Friend about that. That is the intention. It is also true to say that a person who has no relationship and intends to have no further relationship with the patient would be unsuitable to act or to continue to act as the patient’s nearest relative. This goes back to striking the right balance on a difficult issue. I assure my hon. Friend that I take on board his comments. I hope that he is reassured. However, I am prepared to look at the code of practice and see if there is anything that can strengthen it. In meetings that I have had with carers organisations about whether there could be too much movement in the opposite direction on this issue.

I am grateful for the contributions made by all the hon. Members who spoke on advocacy—particularly my hon. Friend the Member for Hackney, South and Shoreditch, who is a strong proponent of advocacy and who made a very good speech about the importance of making sure that we get it right. There were some helpful suggestions, and I hope that both she and my hon. Friend the Member for Stafford will return to their local organisations in the knowledge that their views have been reflected in the debate. The same is true of the views of Opposition Members—they have helped us to formulate the very best solution.

I ask that the Committee support clause 29 and reject the new clauses.