Mental Health Bill [Lords]

Public Bill Committee, 15 May 2007.

Further written evidence to be reported to the House

Clause 34

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following: New clause 14—Authority to treat community patients—

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

(2) In section 58(3) after first “patient” insert “who is liable to be detained under this Act”.

(3) After section 58 insert—

“58A Consent to treatment of community patients

(1) Subject to section 62A below, a community patient who has not been recalled to hospital shall not be given any form of treatment to which this section applies unless—

(a) he has consented to that treatment and either the approved clinician in charge of that treatment or a registered medical practitioner appointed for the purposes of this Part of this Act has certified in writing that the patient is capable of understanding its nature, purpose and likely effect and has consented to it; or

(b) a registered medical practitioner appointed as aforesaid (not being the approved clinician in charge of the treatment in question) has certified in writing that—

(i) the patient is not capable of understanding the nature, purpose or likely effects of that treatment; and

(ii) he has either no reason to believe that the patient objects to being given the treatment, or he does have reason to believe that patient so objects, but it is not necessary to use force against the patient in order to give the treatment; and

(iii) he is satisfied that the treatment does not conflict with a valid and applicable advance decision, or a decision made by a donee or deputy or the Court of Protection; and

(iv) having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given.

(2) Where a patient who has been liable to detention under this Act has been administered medication for mental disorder to which this section applies for less than three months prior to becoming a community patient, the period mentioned in subsection (1)(b) shall be read to extend for no longer than one month beginning with the day on which the community treatment order is made.

(3) The Secretary of State may by order vary the length of the period mentioned in subsection (2).

(4) Certification under subsection (1)(b) may take place whilst a patient remains liable to be detained, but will not come into force until the responsible clinician discharges the patient from detention in hospital under the terms of section 17A(1) above.

(5) Before giving a certificate under subsection (1)(b) the registered medical practitioner shall consult two other persons, who have been professionally concerned with the patient’s treatment, but of those persons—

(a) at least one shall be a person who is not a registered medical practitioner; and

(b) neither shall be the patient’s responsible clinician or the approved clinician in charge of the treatment in question.

(6) In section 61(1) leave out ‘or 58(3)(b)’ and insert ‘58(3)(b), or 58A(1)(b)’.

(7) In section 61(1)(a) after ‘20(3)’ insert ‘, 20A(4)’.

(8) In section 61(3) for ‘responsible medical officer’ substitute ‘approved clinician in charge of the treatment in question’.

(9) In section 61(3), leave out ‘or 58(3)(b)’ and insert ‘58(3)(b), or 58A(1)(b)’.”.

(4) After section 62(2) insert—

“(2A) Section 62A below shall not preclude the continuation of any treatment or of treatment under any plan pending compliance with section 58 where a community patient is recalled to hospital or a community treatment order is revoked and—

(a) the patient is capable of understanding the nature, purpose and likely effect of that treatment and has consented to it; or

(b) the patient is not capable of understanding the nature, purpose and likely effect of that treatment, but it is not necessary to use force against the patient in order to give the treatment.”.

(5) After section 62 (Urgent Treatment) insert—

“62A Treatment on recall of community patient or revocation of order

(1) This section applies where—

(a) a community patient is recalled to hospital under section 17E above; or

(b) a patient is liable to be detained under this Act following the revocation of a community treatment order under section 17F above in respect of him.

(2) Subject to section 62, a patient to whom this section applies shall not be given any form of treatment to which section 58 applies without its certification under section 58(3) following that recall or revocation.”.

(6) In section 64 (supplementary provisions for Part IV) after subsection (2) insert—

“(3) In this Part of this Act, references to ‘not capable of understanding the nature, purpose and likely effects of treatment’ are to be read in accordance with the test established under section 3 of the Mental Capacity Act 2005 (c. 9).

(4) References to a donee are to a donee of a lasting power of attorney (within the meaning of section 9 of the Mental Capacity Act 2005) created by the patient, where the donee is acting within the scope of his authority and in accordance with that Act.

(5) References to a deputy are to a deputy appointed for the patient by the Court of Protection under section 16 of the Mental Capacity Act 2005, where the deputy is acting within the scope of his authority and in accordance with that Act.

(6) Reference to the responsible clinician shall be construed as a reference to the responsible clinician within the meaning of Part 2 of this Act.

(7) References to a hospital include a registered establishment.”.

(7) In section 119 (practitioners approved for Part 4 and section 118)—

(a) in subsection (2)(a) for “registered establishment” substitute “hospital or registered establishment or any community patient in a hospital or establishment of any description or (if access is granted) other place”,

(b) in subsection (2)(b), leave out “in that home” and insert “there”,

(c) after subsection (2) insert—

“(3) In this section, ‘establishment of any description’ shall be construed in accordance with section 4(8) of the Care Standards Act 2000.”.

(8) The Mental Capacity Act 2005 (c. 9) is amended as follows.

(9) In section 28 (Mental Health Act matters) after subsection (1) insert—

“(1A) Section 5 does not apply to an act to which section 58A of the Mental Health Act 2007 (c. ) applies.”.’.

Clause 35 stand part.

Angela Browning (Conservative, Tiverton and Honiton)

It is my pleasure to open the debate. This part of the debate will be long—not only new clause 14, but clauses 34 and 35 are particularly lengthy—but I shall crystallise it. We tabled new clause 14 because there is a basic principle that the Government need to address and which relates to the prescription of treatment and the authorisation of medication by the second opinion approved doctor in advance of what might become a deteriorating situation some weeks or months later. We are concerned about that.

Clearly, the situation could be as simple as somebody refusing to take their medication at a later stage or disliking the side effects. Equally, however, there could be a very salient reason why the patient stops taking medication down the track—a physical occurrence such as a heart attack or something of that nature. It seems wrong that the criterion applied to the patient could be such that, although there might have been a change in circumstances since the initial assessment of why he or she needs a particular treatment or medication, the SOAD—the authorising doctor—may have decreed several months in advance that that treatment or medication must be given. No matter what the relevant circumstances, there would be compulsion, and the patient would be only too well aware of that. That seems wrong in principle.

Therefore, the rather lengthy new clause 14 would simplify the situation so that, when there was a significant change of circumstances, the patient would be reassessed based on those circumstances, and the piece of paper that the doctor had in his or her pocket stating what might happen down the track would not simply be dutifully applied. There would be proper consideration of the patient’s change of circumstances. That is the fundamental principle.

We think that that is helpful to the Government because it would not only encourage the application of best medical practice, but be in the patient’s interests. If the SOAD had the power to predetermine treatment two or three months before, but there had been a change in circumstances that he or she was unaware of, surely it would be in everybody’s interests for the patient to be reassessed at that point.

I suspect that the Minister may tell me that the fact that the doctor had that piece of paper in his or her pocket might encourage the patient to maintain treatment and medication, but the balancing argument is surely that the appropriateness of a treatment, whatever it may be, should be reassessed when there is a significant change in the patient’s circumstances.

Tim Boswell (Conservative, Daventry)

Welcome to the Chair, Mr. Cook. I will briefly endorse the comments of my hon. Friend the Member for Tiverton and Honiton with two of my own. First, clearly there is difficulty throughout the process in that one wants assessments to be as contemporary as possible, but, on the other hand, they should not be vexatious either to the patient or to the examining professionals. The Minister might argue that it is not possible to keep assessing people for ever, and I think that there would be a point to that. On the other hand, I find my hon. Friend’s arguments very cogent in relation to the need to do a proper reassessment, and not to give the SOAD the opportunity to issue a blank cheque. It is good medical practice to reassess such patients, particularly if there have been changes in circumstances, and while that does not automatically preclude a continuation of the treatment, it demands a reassessment of it.

I shall make a further point. Even among professionals, one imagines that there may be some difficulty in dealing with legislation of this length and complexity, although it eventually distils to good practice. The Minister should not be frightened about the complexity of the new clause, since she is happy to present to the Committee schedule 6, an extremely complex and lengthy working out of difficulties about Bournewood and the Mental Capacity Act 2005. Speaking as a non-lawyer, I think that it is sometimes necessary to write at great length in order to anticipate and codify the circumstances under which certain things should happen by way of good practice.

Angela Browning (Conservative, Tiverton and Honiton)

My understanding—I do not claim to be an expert—is that, should the patient subsequently lose capacity during that period, there need be no delay. A section 62 treatment would be given, so the Minister need not worry that there would be a long delay for somebody who had moved from having capacity to losing it in the interim.

Tim Boswell (Conservative, Daventry)

That is a helpful intervention. There is an obligation on those with care of the patient constantly to assess the capacity available. That is a somewhat infinite process, but those with care must have their minds open to any deterioration or change that could affect the patient’s situation. It is sensible to consider the process clinically, and it is legally important to have it as a safeguard for the parties involved. It need not be unduly onerous or vexatious to include that requirement, and I hope that the Minister will consider the matter with care.

Rosie Winterton (Labour, Doncaster Central)

Welcome back to the Chair, Mr. Cook. I would like to explain a little more about the background to clauses 34 and 35, which I hope will give some reassurance to the hon. Members for Tiverton and Honiton and for Daventry. As they have said, those clauses insert new provisions in legislation to allow for the treatment of supervised community patients, both in the community and on recall to hospital. They will also insert important new safeguards, including the SOAD, which will allow all SCT patients to have a review of their treatment in the community and in the event of a recall to hospital.

The SOAD will provide that review through a new part 4A certificate, irrespective of whether patients have the capacity to consent, or not, to treatment and irrespective of where that treatment is given. That measure allows treatment to continue in situations such as that mentioned by the hon. Member for Daventry, in which capacity may fluctuate, and treatment can also be provided should the patient be recalled to hospital.

It is important to be clear about the fact that treatment in the community cannot be given without consent to any patient who has the capacity to consent to or refuse treatment. A patient who is refusing treatment cannot be given that treatment by force against their will. If a patient refused at the outset to accept treatment as part of their community treatment order, that CTO could not be made because it would not be effective in practice. That goes back to the debate that we had last week. Understanding the way in which CTOs would operate is extremely important to the debate. Patients must accept that the CTO is part of their treatment and that it does not work if somebody says, “But I don’t accept that I need to take my medication.” It is an important principle in CTOs that there is that understanding and acceptance of the conditions.

Tim Boswell (Conservative, Daventry)

On CTOs, it is fair to recall that, although it is necessary for the patient to consent in practice—the Minister suggested that that would limit the number of cases in which they could be applied—it is a kind of consent under duress, because the alternative may well be to continue in hospital.

On clauses 34 and 35, there could be circumstances in which a patient recovers capacity fully. If that happens, and as a consequence the patient withdraws their consent, how will the doctor know, or how will they respond to that position, because it would then be unethical to continue to treat the patient, as well as unlawful, unless a different provision were sought?

Rosie Winterton (Labour, Doncaster Central)

As I said last week, if a patient said that they no longer accepted that they needed to take their medication, it would be up to the clinician to decide whether, at that point, recall to hospital was appropriate. That does not mean that they have to recall a patient to hospital, but they must consider whether it is appropriate. For example, if the patient’s point is that their medication is having side effects that they find it difficult to cope with, the clinician may wish to suggest a different dosage. It does not mean that, if a patient says that they do not want to continue with the treatment, recall is automatic, but the provision gives the clinician the option at that point.

What worries me about the new clause is that it would remove an important safeguard, introduced by clauses 34 and 35, ensuring that all patients in the community have their medication independently reviewed. It would also prevent clinicians from treating patients without delay on recall to hospital, and would therefore jeopardise the effectiveness of supervised community treatment, as well as inevitably causing unnecessary disruption to patients’ lives. There are also some technical flaws, but I will not go into those.

The aim of the part 4A certificate requirement is to ensure that all SCT patients have had a second doctor review of the appropriateness of their plan of treatment, wherever that treatment is to be given, whether in hospital or in the community. We want all patients to benefit from that safeguard, whether or not they have the capacity to consent to that treatment. That is crucial for community patients, who are not in a hospital environment where treatment can be reviewed and monitored intensively. Obviously, community patients’ contact with the clinical team would be less frequent, so the SOAD review offers protection to ensure that the treatment that they receive is, and continues to be, right for them. I find it difficult to understand why Opposition Members would want to take that protection away from patients.

It is important that the SOAD is able to approve treatment of the patient in the event of recall to hospital, as well as in the community. The SOAD does not have to address the issue of treatment on recall to hospital—it is not a requirement—but can do that if it is appropriate. Of course, it is always possible to reassess a patient on recall to hospital.

I am advised by psychiatrists, including those who perform the SOAD function, that when discussing CTOs we might be talking about well-known cases where a prediction of treatment in relapse can be fairly accurate. It is perfectly appropriate to look forward and make such judgments.

Angela Browning (Conservative, Tiverton and Honiton)

I agree with the Minister that it is appropriate to look forward and make such judgments if everything is equal to when the initial assessment was made. However, a significant change of circumstances could have taken place. It is not just a question of the patient coming off medication because they do not want to cope with the adverse side effects any more, although that is a common problem. I raised with the Minister the possibility of a situation in which a physical disability has intervened. How does she accommodate such a change of circumstances?

Rosie Winterton (Labour, Doncaster Central)

As I said, the SOAD does not have to address the issue of recall to hospital unless it is appropriate. That might be a circumstance in which a patient’s not taking their medication is the cause of a relapse, and so it is important that they can receive that treatment immediately on returning to hospital. The new clause, tabled by the hon. Member for Tiverton and Honiton, would prevent the patient from being treated quickly on returning to hospital. However, as things stand, a reassessment of the patient’s needs can be made at that time—there is absolutely no problem in doing so. Indeed, if a treatment becomes inappropriate, the doctor will not be expected to administer it simply because the SOAD has said that it might be appropriate. Such clinical flexibility is allowed.

Tim Boswell (Conservative, Daventry)

I assure the Minister that we have no intention of removing any of the safeguards and we welcome the progress that has been made with our involvement.

The point that puzzles me in a simple and lay way is why it should be thought that the SOAD provides a single gateway for all circumstances. If there is a material change of circumstances of a medical nature, the person responsible for treating the patient should not be obliged to refer. As I understand it, the Minister is saying that it will be possible to refer to the SOAD as a matter of good practice—we can hardly argue with that. However, it is not quite clear to me why it will not be required, or expected, that that should happen.

Rosie Winterton (Labour, Doncaster Central)

As I said, the SOAD will provide an independent review of treatment in the community so that the patient has a safeguard. That does not always tie the hands of the clinician. If recall to hospital becomes appropriate, it is important that the clinician has the flexibility to be able to administer treatment very quickly. That does not mean that it will have to be administered if it is not appropriate at that time. It is simply a matter of ensuring that there is a protection for patients in the community—in the form of an independent review—and an ability to treat them quickly on their return to hospital to save going through the whole process of assessment again, which would put the patient in a worse position. I understand that this is quite a complicated issue, but I hope that with those reassurances, Opposition Members will not press the new clause.

John Pugh (Liberal Democrat, Southport)

I want to widen the debate a little and test my understanding of what clauses 34 and 35 involve. I think that we all accept that the history of compulsory medication in this country has not been a happy one for anybody, let alone the mentally ill. Some treatments have been futile, some have looked downright punitive and some have been experimental. The first use of LSD in this country was on mental health patients in Kent. There is also an issue with unacknowledged side effects, which have often been identified many years after patients have been taking particular drugs persistently. There is an acceptance that prescription in mental health services is a fine art; the dosage must be correct in order to have the required effect. I welcome and accept the Government’s concept of an independent review of medication as and when it is applied under CTO conditions.

As I understand it, the Mental Health Act 1983 laid limitations on compulsory medication for detained patients. I am not saying that my understanding is immune from any kind of challenge from the Minister; in fact I would welcome a challenge when I go wrong. The general presumption, even in that legislation, is that medication would be applied with consent. In fact, most patients detained as in-patients are happy to consent to their medication and to get some benefit from it. There was always a possibility under the 1983 Act of medication being administered without consent, if the patient did not understand and it was therapeutically necessary. The Act also contains other exceptions that allowed a fairly wide range of discretion: doctors could intervene if it was a life-saving issue and it was necessary to prevent a worsening in the patient’s condition, and also in order to prevent direct harm by the patient to themselves, as long as the medication process itself was not irreversible. In emergencies, medication could be used as long as there was not an irreversible effect.

With regard to the provisions in the legislation that apply to CTOs, the Mental Health Alliance said:

“The Bill proposals will result in very complex law relating to consent for treatment of community patients which will be challenging for many practitioners to understand.”

I have to say that it is challenging not only for practitioners, but for legislators. Therefore, I want to test my understanding by putting to the Minister what seems to be involved and the problems that I think are contained within it.

The general assumption is that if a person is on a CTO, they will consent to treatment, subject to the overriding conditions laid down by the Mental Capacity Act 2005. We are talking only about the possibility of medicating patients without their consent on their recall. It seems that intervention and/or medication administered with force—one might consider a scenario where someone has an injection in order to sedate them or control them—can occur under CTO conditions if an adult lacks capacity, if a child under 16 lacks competence and, mysteriously, if the patient does not object to the use of force. I found the latter in the notes on the Bill, rather than the actual Bill. One wonders how that scenario could evolve and one assumes that there must be some distinction implicit in the legislation between the patient’s standing will and the will that they have on a particular occasion, such as during a psychotic episode. That, I assume, is the reason that provision is included, as it seems rather perplexing that one would want to use force if a patient had consented.

It would appear that medication can be forced on a patient in circumstances such as those set out in the 1983 Act; under a CTO, when the treatment is regarded as immediately necessary. If a medical officer judges, regardless of the consent conditions, that something needs to be done which is regarded as immediately necessary, under a CTO, would that judgment simply override whatever conditions are already in place?

Further to what we have just debated, I accept that there is an argument to be had about the effect on the system and the patient of an advanced medical directive. We have had a similar, almost parallel argument with regard to advanced patient directives. There are pluses and minuses that may need further investigation, but at this stage I would like the Minister merely to respond to my queries to test my understanding of the legislation. If medication is to be forced on a patient while on a CTO—not on recall—in what circumstances will that take place?

Angela Browning (Conservative, Tiverton and Honiton)

Despite the Minister’s explanation, I still have some concerns. I assume that a rapid deterioration would count as an emergency and, thus, a need for immediate intervention. Section 62 would authorise emergency treatment, so patients will not be put at risk when the nature of their emergency is concerned with their mental health. The emergency could be of a non-mental health nature, but that does not seem to be taken account of by the fact that the SOAD is authorising treatment down the track without being aware of the circumstances.

I should like the Minister to compare such issues with that of detained patients. When patients are detained, they receive a SOAD when they no longer consent or when they lose capacity. However, that treatment is not available to CTO patients under the proposal. There is a disparity between the treatment and the response that an in-patient can expect and what a person in the community can expect. We must bear it in mind that CTOs are something of an experiment that we have covered in earlier parts of the Bill. We hope that, with CTOs, the Minister would at least be giving recognition at the same level of intervention as would be given to someone who was detained, bearing it in mind that those patients would have been detained previously and are now in the community. The comparison of safeguards is therefore important. The SOAD is a safeguard. That is its purpose.

Tim Boswell (Conservative, Daventry)

Does my hon. Friend agree that it is an important safeguard for the doctor to have a second opinion? While a challenge would not remove the possibility of litigation about professional negligence, it would nevertheless reduce it. As with the Mental Capacity Act 2005, a lot of what is being done is properly to safeguard the position of those who do things for people as well as those to whom they are done.

Angela Browning (Conservative, Tiverton and Honiton)

That is obvious. My hon. Friend is right that such a safeguard is important. We are talking primarily about safeguarding the patient, but equally we must have regard to the professionals who take responsibility for the patients. If things go pear-shaped, all too often it is the person who last saw the patient who takes the responsibility.

Rosie Winterton (Labour, Doncaster Central)

If Opposition Members accept that the measure is an important safeguard, why are they trying to abolish it with the new clause?

Angela Browning (Conservative, Tiverton and Honiton)

We are not trying to abolish it. Initially, we proposed the abolition of clause 34 and replacing it with our amendment. Unfortunately, it was not selected, which is why I am speaking to new clause 14. If the Minister reads it, she will see that it might simplify matters somewhat, but it certainly would not remove safeguards. In fact, the SOAD is a safeguard. If matters are just left to the responsible clinician down the track, there would be no real SOAD safeguard in the Minister’s proposal.

Rosie Winterton (Labour, Doncaster Central)

The new clause would take away the independent review for patients with capacity to consent. Perhaps that is unintentional, but that is what it would do.

With regard to forcible treatment in a patient’s home, I reassure the Committee that there will be no forced treatment of patients who have capacity or competence to consent, but who do not do so while subject to a CTO. If forcible treatment is necessary, the patient will be recalled to hospital. Forcible treatment outside hospital for patients who lack capacity or competence to consent cannot be given except when the responsible clinician has no reason to believe that such a patient objects to the treatment, and as long as that does not conflict with an advance decision, one made by someone who has been given a lasting power of attorney, or a deputy appointed by the Court of Protection.

Some of the issues are about practicality. For example, if a person required an injection but had to be held down to get it, the injection could be administered as long as they were not objecting—[Interruption.] If, say, a muscle spasm in the arm would react, force may be applied. We are talking about limited circumstances. As under the Mental Capacity Act 2005, if a person gave any indication of objection, the treatment would not be given. Practicalities will determine the limited circumstances in which a clinician would have to take such action, but they are very unlikely.

Tim Boswell (Conservative, Daventry)

If I may follow the Minister, I am increasingly coming to the view that we should after all have left the safeguards in common law because of the lack of flexibility and the extreme circumstances that she described. While that is not my considered view—I like the Act, as she does—will she consider that there is no intention on the Opposition side to remove any of the safeguards that she is seeking to introduce? I have said that again and again. However, given that the complexity of the issue, will she at least undertake to review the situation? Circumstances might change, and a clinician who has made a judgment in good faith and has had that supported by a second doctor, might be obliged or encouraged, not least for their own protection, to go back and review their initial decision. We are not seeking to preclude appropriate treatment, let alone emergency treatment, but there is a potential difficulty if clinical approval that has been given in one position is not transferable when circumstances change.

Rosie Winterton (Labour, Doncaster Central)

I am sorry to contradict the hon. Gentleman once again, but the effect of the new clause would be to remove the safeguards for people who have capacity. I understand that that is not what he intends, but I will ask the Committee to reject new clause 14, because it would remove the safeguards.

I conclude by saying again that force may be used to administer treatment in an emergency——for example, to save a patient’s life. In all such emergency cases, force will have to be a proportionate response to the seriousness of the harm that might be caused to the patient. It is a similar approach to that taken by the Mental Capacity Act 2005—force has to be proportionate and used in a way that helps rather than harms the patient.

John Pugh (Liberal Democrat, Southport)

The Minister may be able to help me. Clearly, when life and death are at stake, it is overriding that somebody must do something. She suggests that force may be used in those circumstances, and that the clinician will not have to make legal moves in order to use that force should he judge it necessary.

Was the Minister sketching another scenario in which a clinician who judges that medication is to be administered against the will of a patient who is on a CTO that stipulates that they should consent must make a new legal move to put in place the requirements laid down for in-patients? In other words, there are circumstances in which needs must: clinicians must do what they have to do to save lives. That is an overriding imperative in circumstances in which action is immediately necessary. However, at the start, the Minister seemed to be saying that one could move from a scenario in which a patient was consenting to treatment on a CTO to a different one, which was nevertheless not quite the same as sectioning, in which some legal move was required prior to a change in the patient’s clinical treatment.

Rosie Winterton (Labour, Doncaster Central)

The Government want to ensure that a patient on a CTO has their treatment independently reviewed and that they have access to treatment very quickly on recall to hospital. The problem with the Opposition’s new clause is that it removes the ability of the SOAD to authorise treatment independently, which means that, on recall to hospital, the patient would have to go through the legal process again, and that is what we are objecting to. It may be that that is unintentional. Perhaps it is a probing new clause. I am afraid that I have to ask the Committee to reject the amendments.

Angela Browning (Conservative, Tiverton and Honiton)

I do not think that we are going to press the amendments to a vote, but I urge the Minister to reflect and, if necessary, discuss again the points that we have made.

Clause 36

Tim Loughton (Conservative, East Worthing and Shoreham)

I beg to move amendment No. 58, page 35, line 35, leave out ‘16’ and insert ‘18’.

This is a rather simpler amendment than the last one, and enormously less long. It is about the referral to mental health review tribunals. Again, it reflects our concern about how children and young people are treated in the Bill. We are trying to ensure that safeguards are put in place for all children under 18. Its purpose is to ensure that children under 18 are reviewed at least annually by a tribunal. At present, only children under 16 are automatically entitled to an annual review. We think that they should have at least an annual review given the sensitivity of their position. After all we are talking about very vulnerable children. Children under 18 but over 16 who have no one to look after their interests, such as unaccompanied asylum seekers or those whose parents do not understand the mental health system, might not be reviewed for three years. Surely, that is far too long in the life of a young person.

The point of the amendment is simple. It reinforces the fact that those under 18 are regarded in law as children, and it would safeguard their rights. Although we are not talking about an enormous number of children each year, surely it is a worthwhile safeguard to ensure that children under 18 do not have to wait for up to three years, as they could in some cases, for a review of their position——of their continued sectioning or other treatment——by the mental health review tribunal.

Rosie Winterton (Labour, Doncaster Central)

Clause 36 provides a safeguard for patients who do not use their right to apply to the tribunal. It ensures that even when patients have not applied themselves, hospital managers will automatically refer them to the tribunal after a certain period. All patients under 16 who do not apply to the tribunal, other than under section 2, get referred after the first six months of their detention. If a year passes without a tribunal, then they will be referred again by the hospital managers. The amendment seeks to extend the annual referral to patients under the age of 18.

I sympathise with the intentions behind the amendment. I would like to look at the potential financial and particularly operational implications. I agree with the hon. Member for East Worthing and Shoreham that it is important to consider very carefully the best ways to ensure that children’s rights are properly safeguarded. I would like to consider the amendment further, alongside the commitment made by my noble Friend Baroness Ashton in the other place. That commitment was that no child under 18 should appear before the tribunal without having had some input from a child and adolescent mental health specialist. It is appropriate to put both considerations together. I invite the hon. Gentleman to withdraw the amendment so that I can consider it further.

Tim Boswell (Conservative, Daventry)

Would the Minister also consider that, if children under 18 are to appear before the tribunal, they should be adequately supported in what is bound to be a difficult process? They should not feel it to be any more difficult than it has to be. The Minister will be familiar with the many changes to young people giving evidence. Will she at least ensure that such vulnerable young people do not feel threatened by the tribunal beyond the bare requirements in their own interests?

Rosie Winterton (Labour, Doncaster Central)

I certainly would not want children to feel threatened by the tribunal. Of course I will look carefully at what the hon. Gentleman said.

Tim Loughton (Conservative, East Worthing and Shoreham)

That was short and sweet, but we appear to have made some progress. Perhaps we should keep all our amendments as short as that and we might get rather further than we have done in the rest of the Bill.

I am grateful to the Minister for saying that she sympathises with the intention and that her support is conditional upon further investigation into the financial and operational implications. We do not think that many children are involved, but it is difficult to tell because the figures are not collected. Potentially, we are not talking about a big cost implication at all, if any. If it can be achieved operationally, then I am happy to withdraw the amendment on the basis that she will come back, having considered it, and perhaps give us good news on Report. Therefore, I beg to ask leave to withdraw the amendment.

Clause 40

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following:

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

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

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

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

Tim Loughton (Conservative, East Worthing and Shoreham)

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

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

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

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

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

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

Chris Bryant (Labour, Rhondda)

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

Tim Loughton (Conservative, East Worthing and Shoreham)

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

Rosie Winterton (Labour, Doncaster Central)

The hon. Gentleman was wearing it.

Tim Loughton (Conservative, East Worthing and Shoreham)

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

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

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

Angela Browning (Conservative, Tiverton and Honiton)

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

Tim Loughton (Conservative, East Worthing and Shoreham)

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

Rosie Winterton (Labour, Doncaster Central)

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

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

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

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

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

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

Tim Boswell (Conservative, Daventry)

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

Rosie Winterton (Labour, Doncaster Central)

That is a fair point.

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

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

Tim Loughton (Conservative, East Worthing and Shoreham)

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

Rosie Winterton (Labour, Doncaster Central)

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

Tim Loughton (Conservative, East Worthing and Shoreham)

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

Rosie Winterton (Labour, Doncaster Central)

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

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

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

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

Frank Cook (Labour, Stockton North)

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

Tim Loughton (Conservative, East Worthing and Shoreham)

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

Frank Cook (Labour, Stockton North)

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

Tim Loughton (Conservative, East Worthing and Shoreham)

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

Frank Cook (Labour, Stockton North)

Please do.

Tim Loughton (Conservative, East Worthing and Shoreham)

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

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

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

Rosie Winterton (Labour, Doncaster Central)

But the new clause would specifically remove the following words:

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

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

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

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

Tim Loughton (Conservative, East Worthing and Shoreham)

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

As for the discretion, the Secretary of State

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

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

Tim Boswell (Conservative, Daventry)

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

Tim Loughton (Conservative, East Worthing and Shoreham)

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

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

Rosie Winterton (Labour, Doncaster Central)

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

Tim Loughton (Conservative, East Worthing and Shoreham)

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

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

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

Angela Browning (Conservative, Tiverton and Honiton)

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

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

Tim Loughton (Conservative, East Worthing and Shoreham)

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

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

John Pugh (Liberal Democrat, Southport)

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

Clause 43

Tim Loughton (Conservative, East Worthing and Shoreham)

I beg to move amendment No. 7, in clause 43, page 41, line 6, at end add—

‘(4) In Section 135(6) for the words from “means” to the end of that subsection substitute—

“(a) (i) residential accommodation provided by a local social services authority under Part III of the National Assistance Act 1948 (c.29),

(ii) a hospital as defined by this Act,

(iii) an independent hospital or care home for mentally disordered persons,

(iv) any other suitable place the occupier of which is willing temporarily to receive the patient or, if, in the circumstances of the case it is impracticable to use any of these places,

(b) a police station.”.

(5) In Section 136 (Mentally disordered persons found in public places) of the 1983 Act after subsection (2) insert—

“(3) Where a police station is used as the place of safety the person may not be detained there for a period longer than 24 hours.”.’.

It is me again, Mr. Cook. The amendment to clause 43 is slightly longer and it deals with the subject of places of safety. I know that a number of hon. Members have expressed concerns about the matter in the past. The amendment is to section 136 of the Mental Health Act 1983. We want to define places of safety with particular reference to the use of police stations, which are apparently being used under the definitions of the Bill far too often and inappropriately.

So the purpose of the amendment is to change the definition of a “place of safety”, to ensure that as far as possible it should be not a police cell but a therapeutic environment. When a police station is used as a place of safety, because nothing else is available, the patient must be transferred to a therapeutic environment, which is more appropriate, within 24 hours.

I have some experience of such a situation. I had a surgery case last year involving a constituent’s son-in-law, who had had a severe psychotic episode. He had no previous experience or record of any serious mental illness. He got involved in a quite bizarre incident requiring a number of armed police and was taken into custody. No one was hurt, but he clearly had—for want of a better word—flipped. He was taken to the custody suite of the police station, where he stayed for several days.

He was not transferred to a hospital environment. He was not dealt with properly at the police station. His condition worsened severely while he was in custody. The reason why he was not transferred was that the reviewing clinician—from the Maudsley hospital in south London—was on holiday and there was no one covering. So, for completely unacceptable reasons, the son-in-law of my constituent was forced to stay in that police cell for a number of days—I cannot remember how many, but clearly too many—while his condition worsened. It was highly inappropriate and he plainly should have been removed to a hospital as soon as possible, so that he could start receiving the medical care denied him for some while.

Angela Browning (Conservative, Tiverton and Honiton)

In evidence, the Committee received several reports flagging up the use of police cells, particularly for younger people. We debated earlier in Committee appropriate placements for young people, particularly adolescents, especially those between 16 and 18. More often than not, because there is no appropriate hospital placement for them, they end up being accommodated in police cells, for fairly long periods, which is quite inappropriate.

Tim Loughton (Conservative, East Worthing and Shoreham)

My hon. Friend is absolutely right. She might be referring particularly to submission MH57, from Penny Stafford. She said:

“CAMHS services do not usually provide any facilities for a ‘Place of Safety’ for children subject to s.136 of the Mental Health Act, and even in those areas where there is appropriate ‘Place of Safety’ provision in the local adult mental health services, these hospital based S136 Suites do not accept children or young people under the age of 18, so instead these vulnerable distressed youngsters are held in police custody suites, an even more inappropriate setting for them.”

She refers to a “key recommendation” of a report published by the Mental Health Act Commission, of which she was a member, that a

“protocol should be put in place to allow for children and adolescents subject to s.136 to be taken to an appropriate place of safety within a hospital setting and to be assessed by a specialist in child and adolescent psychiatry.”

We would agree with that. That is the point of the amendment.

Charles Walker (Conservative, Broxbourne)

Something troubled me immensely in Broxbourne when I was out with the police once. We were called to a domestic incident, which involved a 15-year-old child, who was having some form of—for want of a better word— episode. The child was clearly mentally disturbed, but was led away by the police to a police station. That worried me immensely. I do not know if I have any answers, but it was so obvious to me that she was mentally ill and it seemed a great sadness and shame that she was taken the police station when she should probably have gone to a hospital.

Tim Loughton (Conservative, East Worthing and Shoreham)

I think that all of us could relate an experience such as that among our constituents. We might be talking about young people who do not have a long experience of mental illness, for whom psychotic events begin to happen, for whatever reason. It must be enormously intimidating and frightening for such people when they are rounded up by the police, perhaps handcuffed, and taken to a police station for something that was caused by an illness. They might be dumped in a police cell as a minor, on their own, when they are confused and ill. That will not help the child, therapeutically, for those initial hours or days in which they find themselves—inappropriately—in a police cell.

Police officers have a duty under section 136 of the Mental Health Act 1983 to take

“a person who appears...to be suffering from mental disorder and to be in immediate need of care or control”

from a public place

“to a place of safety”.

While such places are defined in the Act as

“a hospital...police station... care home...or any other suitable place”,

in the majority of cases, a police cell will be used. A person can be held under the power for up to 72 hours, although there are cases, such as that of my constituent, when that is not adhered to. The detention should be such that the person can be assessed by mental health professionals.

The Mental Health Alliance has referred to new research by the Independent Police Complaints Commission on the use of police stations as a place of safety. The commission’s initial findings state:

“During 2005/06 approximately 11,500 people were detained in police custody under”

section 136. It also states:

“This figure is likely to be an underestimate due to the way that police detentions are recorded”.

Secondly, the commission found that

“Rates of section 136 detentions varied widely across forces”

ranging

“from 0 to 28 detentions per 1,000 people in custody.”

There is a postcode lottery in operation so there is clearly something wrong. Is the lottery to do with different forces operating under different procedures and protocols? Are the different rates caused by vast differences in the facilities available to police forces? That is one of the biggest causes for concern.

Previous research has indicated that police cells are used on around 80 per cent. of occasions when section 136 powers are invoked. Police cells are the norm, not the exception. Most of us would agree, and clinicians say, that police cells are not the most appropriate place, or so much as an appropriate place, for people detained under section 136 to be taken.

The person detained under section 136 need not have committed any offence, but simply to have behaved in a way that has given the impression that they are mentally ill and a danger to themselves or others, so there is a degree of discretion for the police who take people into custody. A police cell is not a therapeutic environment for someone experiencing mental health problems. Being taken into custody may delay the provision of effective treatment and exacerbate the illness, which is exactly what happened in the case of my constituent. The use of police cells as a place of safety also has significant resource implications for police custody facilities. The police have little training or expertise in looking after people with severe mental health problems. Given all the other pressures on the police, this is another problem that they do not need.

Police station staff are, I fear, rarely trained to deal with people who are mentally ill. Home Office circular 66/90, which is in a memorandum to accompany the 1983 Act, and the joint Home Office and Department of Health review of health and social services for mentally disordered offenders both suggested that police stations should rarely if ever be used to detain people under section 136. The NSF on mental health states that hospitals should be used in preference to police stations, and the current code of practice states that police cells should generally be used.

The issue is of particular relevance to black and minority ethnic communities, especially African and Caribbean communities. The rates of use of section 136 orders are disproportionately high for those groups. Two surveys have been undertaken, one each in Islington and Camden. The Islington survey found that no fewer than 41 per cent. of section 136 detentions were of black people, when that group makes up only 12 per cent. of the population. Similar figures were found in Camden. Section 136 powers are being used disproportionately to detain black and ethnic minority patients, reflecting the disparities, problems and discrimination that happens across the mental health service.

Nick Hardwick, the co-chairman of the Independent Police Complaints Commission has estimated that 50 per cent. of deaths in police custody have involved people with mental health problems. He stated:

“Whatever a police cell is, it is not a place of safety for people with mental illness.”

The IPCC gave evidence on the 2004 Bill and said that,

“the legislation makes no attempt to limit the circumstances in which [the use of detention orders through police cells] happens only to wholly exceptional occasions.”

The Police Federation of England and Wales supports the removal of police stations from the legal definition of a place of safety altogether, as does the Association of Chief Police Officers. The Mental Health Act Commission has repeatedly stated in its biannual report, as many other stakeholders have mentioned, that police stations should not be regarded as places of safety.

The Government have agreed to consider monitoring the use of police cells as places of safety. I am not quite sure how that will happen but I am sure the Minister will enlighten us in detail as soon as I sit down with a progress report.

Although welcoming the new power included in the Bill to allow transfers between places of safety, the Police Federation, the Association of Chief Police Officers and the Independent Police Complaints Commission have told the Mental Health Alliance that, unless this is accompanied by other safeguards to ensure that patients are transferred quickly, then the overuse of police cells as a place of safety is likely to continue.

In particular, there is a fear that, with the new power to transfer, PCTs will be less likely to prioritise a search for a hospital bed for section 136 patients because they know that they will be able to transfer them at a later date. This could have the unintended consequence of increasing the use of police cells for mentally disordered patients. That is the case that they are making.

There was some debate on this in the House of Lords. I know that the Government were concerned that the wording of the original amendment was overly restrictive. Amendment No. 7 has taken on board the Government’s concerns. Amendment No. 7 provides that police cells should be used only if “it is impracticable” to use a therapeutic environment. The amendment is supported by the Police Federation, the Association of Chief Police Officers and the Independent Police Complaints Commission.

So there is a great deal of weight behind the amendment. It addresses a problem that is happening all too often and one that we are all aware of. The Minister and other members of the Committee share the view that it should not be happening, but we are discussing how we should prevent it from happening. The amendment will send out a serious message about the undesirability and inappropriateness of this form of detention. It will also act as a serious spur to reconfigure services so that police cells are used only as a fallback position and not as the position of preference, as happens in about 80 per cent. of cases. As such, I hope that the Minister will take the amendment seriously.

John Pugh (Liberal Democrat, Southport)

I want to add just a few comments, as the hon. Member for East Worthing and Shoreham has put the case exhaustively and has covered most of the angles.

I have some difficulty in equating police stations with places of safety full stop because of the things that happen in police stations from time to time. It is understandable that people who have mental health crises will occasionally end up in police stations. It is also perfectly comprehensible that most policemen are not trained therapists and therefore find such problems difficult to deal with, and that the police station is not an ideal therapeutic environment in any sense. Police stations are useful facilities for all sorts of purposes. The stark reality is that they are now used as prisons and used far more than the Government wish them to be. They could clearly be overused as places of safety for people who should be elsewhere.

The amendment is unashamedly designed to drive up standards. One can almost anticipate the Minister’s response, which will be something along the lines of, “Yes, it’s good to have higher standards, but hey, we’re going to lose flexibility and if there is no place of safety we may end up releasing people straight out on to the streets.” That is all well and good, but it is indistinguishable from an argument for lower standards; someone arguing for lower standards would make exactly the same point.

The amendment’s cutting edge is the restriction to 24 hours. If the Minister has a difficulty with that, and if 24 hours is thought to be too short a period because places might not always be available in that time scale, we could adopt a more sophisticated amendment whereby the 24-hour provision would be the norm, with a requirement for exceptional permission to be sought if a longer period were required. Such amendments are an attempt to drive standards up and deal with an unjustified ill. Surely the Minister can warm to that.

Charles Walker (Conservative, Broxbourne)

I made a brief intervention earlier, but I think that the incident that I described deserves more than an intervention, so I hope that the Minister will not mind if I expand on it. About this time last year, I spent a morning with the police, during which there was a call-out to a “domestic” in my constituency. When we arrived the situation was unclear; there was a hell of a row, with plates breaking and cutlery being thrown. It sounded as though some enormous person was out of control.

Ian Gibson (Labour, Norwich North)

Just like at the Walkers’.

Charles Walker (Conservative, Broxbourne)

Well, occasionally the Walker children get out of control. The police entered the home and their performance was outstanding from beginning to end despite their not being trained to deal with such situations. After about half an hour, they emerged with a tiny girl of about 14 or 15 years who could not have been more than 5 foot nothing. She was crying softly between two enormous policemen. Clearly, as I said earlier, she was mentally disturbed. Indeed, she was well known to our mental health services, the Hertfordshire Partnership NHS Trust, and has had a long history of engagement with doctors and nurses in the trust. I spoke to her parents and they were clearly at their wits’ end, but I did not feel that they really understood mental illness—the symptoms had not been explained to them.

I asked the police what would happen to the young person, and they told me that she would be taken to the local police station to be detained and charged. At the risk of sounding repetitive, I point out that it seemed totally wrong that someone who was clearly mentally ill and who was known to the mental health services should spend a period—maybe the entire day or longer—in a police station, to be charged for an episode that within a day or two she would, I discovered, not even recall.

I do not have the answer, but I am sure that the Minister has heard hundreds of such stories. If we could improve such situations, I and many other people would be extremely pleased.

Rosie Winterton (Labour, Doncaster Central)

I should say first that the stories Opposition Members have told are all tragic. I completely understand why people feel that the situation needs addressing, and I agree. That is one reason why the Government introduced the amendments in the other place, so that transfer would be permitted. Transfer was one of the real problems that was highlighted at my meeting with the Police Federation, whose representatives said that they would certainly welcome the inclusion in the Bill of scope for transfer from one place to another. Everyone agrees that police stations are absolutely not the right place in which to detain someone who appears to be suffering a mental disorder, and that hospital facilities are likely to be more suitable. However, the hon. Member for East Worthing and Shoreham touched on the truth, which is that we must recognise the current limited availability of adequate place of safety facilities other than police stations. The availability also varies from area to area, and we are trying to put that right.

James Duddridge (Conservative, Rochford and Southend East)

Although I agree that police stations are inappropriate as places of safety, may I ask whether any moves are being made to create specialisms in conurbations such as London, Manchester or Birmingham? Staff at particular police stations could be trained in dealing with such mental health patients, so that they could be temporarily detained there, rather than in an area with no awareness of mental health issues or specialisms.

Rosie Winterton (Labour, Doncaster Central)

There is a host of steps that we can take. An important one is not always touched on: we need to look more carefully and at why for some people the first point of contact might be the police, as opposed to the mental health services. How some people end up in police stations, as opposed to being taken to somewhere provided by the NHS, is quite an issue. Hence the importance of allowing the transfer between police stations and other places of safety, because too many people were going through the police system instead of always going through the mental health services.

The hon. Member for Southport anticipated me, but I hope to reassure him that this approach is correct. Coming back to the point raised by the hon. Member for East Worthing and Shoreham and his constituent’s five-day wait, the maximum period of detention in a police station is 72 hours, so he might wish to take that up. I should emphasise that that 72 hours, which I am sure many people would say is too long, is an upper limit. Recently published evidence, emerging from a study being undertaken by the Independent Police Complaints Commission, suggests that the average amount of time in police custody under section 136 of the Act is 10 hours and that the vast majority of detainees leave police custody within 18 hours. That is reassuring, but it also makes it clear that a small number of people have been detained in police cells for longer than 24 hours. The amendment would make that impossible.

As we said in the other place, the issue is about whether we feel that imposing statutory restrictions is the way to address the understandable concerns that the amendment seeks to tackle. We believe that the right way forward is to limit the use of police stations by facilitating the good practice that we know occurs in some places. The hon. Member for East Worthing and Shoreham said that it was interesting how the figures are very low in some parts of the country, but in others they seem to be greater.

Charles Walker (Conservative, Broxbourne)

On a connected point, what sort of access to psychiatric services does someone in a police cell or station have? Do they have access to review by a trained clinician? What happens when they leave? Do they go home?

Rosie Winterton (Labour, Doncaster Central)

Basically, the individual will be waiting for an assessment. Once the assessment is made, a decision is taken on what to do with the patient. We therefore need the assessment to be made as quickly as possible so that, if necessary, proper treatment can commence. It is the issue of getting the assessment that the hon. Gentleman is trying to address.

Charles Walker (Conservative, Broxbourne)

On a point of interest, would that assessment involve the person’s clinician who had been supporting them prior to their admission to the police station?

Rosie Winterton (Labour, Doncaster Central)

Yes, a clinician and social worker would be involved in the decision to detain somebody under the Mental Health Act or to provide other care.

As I have said, by allocating approximately £42 million in capital spending, we are trying to improve the NHS mental health estate to ensure that proper places of safety are available. We are putting in a further £58 million this year. We have specifically asked people to look at the issue of places of safety. As the hon. Member for East Worthing and Shoreham said, the local protocols that are in place are often what is important. The Police Federation made the point that if we can ensure close co-operation between the police and the health authorities, we could see real changes in the use of police cells as places of safety. That is why we introduced the amendments in the other place that, in effect, allow a patient to be transferred elsewhere. Currently, if someone ends up in a police cell, that is where they stay. The Government amendment made in Lords allows a transfer to take place.

We want to reinforce that approach by strengthening the guidance in the code of practice The current code states that police stations should not generally be used. In the revised code, we want to stress that police stations should be used only as a last resort: for example, only if nowhere more suitable is immediately available, and even then, only if such use is compatible with local agreements on the use of places of safety. We want to ensure that local protocols are in place and to stress the points that I have just made in the revised code.

We will consult very widely on the revised code. We will involve representatives of the police, including the Police Federation, in the drafting of the guidance. I understand that similar arrangements will be made in Wales. The National Institute of Mental Health in England is working with the Association of Chief Police Officers on the development of guidance on joint working between police and health services in dealing with people with a mental disorder. I know that that is general, but it is an important matter. Getting the process right at local level and understanding how each other’s work can take place and be improved is the best and most appropriate way forward.

I hope that that reassurance, combined with guidance on moving people from one place of safety to another more appropriate one, will encourage the hon. Member for East Worthing and Shoreham to withdraw the amendment.

Tim Loughton (Conservative, East Worthing and Shoreham)

This has been a useful debate. I am particularly pleased with the Minister’s assurances about consultation in reference to the code of conduct. That will probably be the swiftest way of bringing about improvement. In particular, it will address the deserts of best practice that appear to exist and ensure that protocols that work at the moment work everywhere. I see no reason why that should not happen. Promoting a local agreement is the best way to proceed, so that there is mutual benefit and trust and a good relationship between clinicians, police, the Prison Service, social workers and all the other agencies involved.

Our amendment stipulates an upper time limit of 24 hours. That should not be a problem, because the Minister has said that the emerging IPPC research indicates that the average stay is 10 hours. Having taken her assurances that a lot is happening—discussions with the police, improvements to the code of conduct, and so on—in relation to the provision of services, I beg to ask leave to withdraw the amendment.

Clause 47

Rosie Winterton (Labour, Doncaster Central)

I beg to move amendment No. 47, in clause 47, page 44, line 19, after ‘paragraph’, insert ‘42(2)(b),’.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss Government amendments Nos. 48 and 53.

Rosie Winterton (Labour, Doncaster Central)

The amendments have been tabled in response to concerns that were expressed in the other place. They will amend clause 47 and schedules 6 and 8 to the Bill.

Clause 47 will amend the Mental Capacity Act 2005 to introduce safeguards to protect the rights of a person who is deprived of their liberty. The new deprivation of liberty safeguards are necessary for people who lack the capacity to consent to arrangements made for their care. The measure is being introduced in response to the European Court of Human Rights 2004 judgment in the case of HL v. UK, which is commonly referred to as the Bournewood judgment. The Court identified the need for protection from arbitrary deprivation of liberty for people who have a mental disorder and who lack capacity to consent to arrangements made for their care, but who are not detained under the 1983 Act.

We considered the judgment and decided that the Bill needs to include formalised procedures covering who may propose admission, for what reasons and according to what criteria, and how those should be assessed. Limits must be placed on how long the deprivation of liberty may continue before a review, which will include a clinical reassessment that says that a person still has a mental disorder. There must be a right to have the lawfulness of the deprivation of liberty decided speedily by a court and for a representative who can offer a challenge on a person’s behalf to be appointed.

The proposed safeguards will address those matters. They will permit the deprivation of liberty only in circumstances in which that is necessary in a person’s own best interests and to protect them from harm, and when that cannot be achieved in a less restrictive manner.

The proposals will give vulnerable people the protections that they currently lack. The safeguards will give additional protection to those in a hospital or care home in circumstances that deprive them of liberty. The law will clarify for hospitals, care homes, service users and their families the circumstances in which a person may be lawfully deprived of their liberty. That will enable hospitals and care homes to ensure that they are acting lawfully.

The cornerstone of the new arrangements is that the deprivation of liberty will be lawful only if it is specifically permitted by a formal authorisation concerning a particular individual in a particular care home or hospital, or by order of the Court of Protection. An authorisation may be given only if six criteria—called “qualifying requirements” in the Bill—are met, and it will last for up to 12 months. Except for a short period in urgent cases, all authorisations must be given by the relevant authority on the basis of the decisions of a properly qualified assessor. The schedule calls such authorisations “standard authorisations”. The job of granting standard authorisations falls to “supervisory bodies”. For care homes, the supervisory body granting the authorisation would be the relevant local authority, for hospitals, it would be the PCT, and in Wales, the National Assembly.

The amendments to the Mental Capacity Act have been welcomed by all those who were involved with that legislation, not least the hon. Member for Tiverton and Honiton, who has taken great interest in this matter. Our amendments introduce a power to make regulations to reduce the maximum length of standard deprivation of liberty authorisations, as agreed in the other place, in response to concerns that authorisations could be granted for too long a period.

Before I come to the detail, I would like to explain our policy on the duration of authorisations. Our aim, which I am sure the whole Committee shares, is that if deprivation of liberty needs to be authorised, it should be for the shortest time possible. We will make that very clear in the Mental Capacity Act code of practice and in training facilities. In the other place, Baroness Ashton committed to strengthening that point in the code, and officials are working on a revised version, which will be subject to consultation. That is why we are setting the authorisation period on a case-by-case basis according to the best interests assessor’s recommendation.

The assessor will look at the person’s circumstances and the likelihood of change and make a recommendation based on their best interests. There are cases in which it will be perfectly reasonable to grant an authorisation for 12 months, and others in which the period will be much shorter because it may become possible, through rehabilitation and support, for the person to be cared for at home.

If a change in circumstances means that the deprivation of liberty should end, the hospital or care home is required to request a review. The relevant person or the representative who is appointed to support them can also trigger a review or apply to the Court of Protection at any time. Those safeguards mean that if a deprivation of liberty is no longer needed, it can and will be ended. We will provide information and support to families and carers to ensure that they can effectively help their loved ones to make use of the safeguards.

I am confident that the measures will deliver our aim of ensuring that the deprivation of liberty does not continue for longer than is necessary for the person’s protection. Concern was expressed in the other place that authorisations would have a default duration of 12 months, but I am confident that that will not happen. I reiterate that we will make it very clear in the code of practice that authorisations for 12 months should be recommended only if the assessor is confident that the person’s circumstances are unlikely to change in that time. However, to allay those concerns, we committed in the other place to take certain powers. Amendment No. 48 will give us the power in England, and Welsh Ministers in Wales, to reduce the maximum authorisation period if monitoring of the operation of safeguards provides convincing evidence that it is necessary to do so.

Amendments Nos. 47 and 53 provide that the regulations, if made, would be debated in both Houses of Parliament and in the National Assembly for Wales. I hope that the power will not be needed, but it is prudent to include it in the legislation. I therefore invite the Committee to support the amendments.

Angela Browning (Conservative, Tiverton and Honiton)

Seeking to comply with the judgment of the European Court of Human Rights is probably one of the most important ways for the Government to use the Mental Capacity Act. There was considerable debate in the scrutiny Committee on both that legislation and on the draft Bill, and although I welcome the Government’s decision finally to use the Act, I still have some concerns that I would like to flag up to the Minister today. It is important that we get this part of the Bill absolutely right, because it deals with depriving a very complex and vulnerable group of people of their liberty outwith the Mental Health Act 1983. The Bournewood case was, as we know, about lack of protection under that Act.

The Minister gave some welcome clarification about the duration requirement for authorising deprivation of liberty. She wrote to us all on 17 April outlining some of the amendments that would be moved in Committee in this area, most of which she addressed just now. However, I remain concerned about the rather vague language used on time scales—language that will be enshrined in the code of practice. It is of course right that the duration should be the absolute minimum that is necessary, and should be assessed on a case-by-case basis. Actual practice, however, could well be based on available resources rather than on the best interests of the patient.

How, therefore, does the Minister calculate the additional resources that will be required for the procedures associated with this part of the legislative reform, which implements Bournewood judgment compliance? There are significant resource implications that I believe have not been addressed and that, of themselves, might skew the determinations. In due course I shall mention some of the lawyers’ concerns on that, with particular regard to the concerns on marrying up the Mental Capacity Act and the Mental Health Act that have been expressed by the lawyer who handled the Bournewood case.

I realise that the Minister and her officials have had a difficult task since the appearance of the judgment, so I am not complaining. They had to decide which Act was the appropriate one to consider, and I think that they have chosen the right one. Now, however, we are reaching the detail of implementation, and it is important not to be satisfied just with putting something on the statue book in the belief that that is an end of the matter. Will the Minister therefore consider the safeguards that might be needed on time factors, notwithstanding her proposed amendments and the contents of the code of practice?

Sometimes there are advantages to lightly worded recommendations, because they give flexibility in areas where it is needed, but we need to be cognisant of certain matters that have arisen—including some that have arisen even since the Bournewood judgment. Not least among them is the issue of defining liberty and deprivation of liberty, which remains a matter of some obscurity, as we know from a recent court case involving Surrey county council. That is because such cases now involve people deprived of their liberty not only in hospitals, but in wider care in the community and in residential and nursing homes. Has a person been deprived of liberty when they are not free to go out of the door, or when they are not free to go out of the door unless accompanied by a suitable relative or friend? The case involving Surrey county council concerned an elderly person with dementia in a residential setting. If such people are trying constantly to get out of the front door, is their being contained within the building to be interpreted as an indication that they are being deprived of their liberty?

Those who looked at the Bournewood case when it reached the House of Lords were clear that, had HL tried to leave the Bournewood hospital, it would have clearly been wrong to have let him go because, in his own interests, it was better that he be contained within the building while he was undergoing treatment. That was the determination of the Lords. However, the European Court found in favour of HL after hearing his lawyers’ arguments.

Will the Minister consider the definition of deprivation of liberty, because several references have been during our proceedings to the opportunities for lawyers when there is lack of clarity and a grey area that allows different interpretations? Because the right hon. Lady has not actually defined deprivation of liberty in the Bill or, for that matter, in the code of practice, it may well lead to further legal challenges that the legal profession might welcome. That should be something that the Minister should reconsider during the final considerations on formulating the code of practice or the Bill.

I certainly welcome the Minister’s keeping her word and the Government’s pledges in Committee in another place. The six qualifying requirements to deprive someone of their liberty are sensible and well drafted. There is an age requirement, the mental health requirement, the mental capacity requirement, the best interests requirement, the eligibility requirement and the no refusals requirement. We are still at a stage when for some people the Mental Health Act will be applied, and for others the Mental Capacity Act will be applied. I want clarification from the right hon. Lady. If, under the initial assessment, it is appropriate to apply the amendments to the Mental Capacity Act, how will changes in circumstance be regulated so that patients who might move between the scopes of the two different Acts can be assured of the protections that they need? I am still not 100 per cent. sure that such provisions have been correctly drafted because there is a rather vague definition of deprivation of liberty and, under the Mental Capacity Act, we now seem to have embraced a wider group of people.

I refer the Minister to a bundle of documents that were provided to the Committee. The Government supplied an excellent guide, “The Bournewood Safeguards”. I am looking at the easy-read version.

Rosie Winterton (Labour, Doncaster Central)

It is quite the best.

Angela Browning (Conservative, Tiverton and Honiton)

It is very good. I commend the Government on how they issue such guides. The document explains who will usually use the Bournewood safeguards—in other words, who will come within the scope of clause 47, to which the Minister has tabled the amendments. They include

“people who have serious learning disabilities”,

which goes without saying, but then we come to a group that covers the Surrey county council case, which is

“older people with mental illnesses like dementia”.

That group is not small and I suggest to the Minister that it is growing. We know from demographics that we have an increasingly elderly population, although such conditions do not exclusively affect the elderly. People in that group might be detained against their liberty. It is a pretty wide and large group, and it is going to expand. I return to the question of resources. How will the Minister ensure that adequate resources are available to implement the safeguards that she is building into the clause? My suspicion is that the Government have underestimated how many people will be dealt with under the clause. If resources are not available, the safeguards will not prevent people from falling through the net.

I mentioned earlier the concern about the definition of deprivation of liberty and the question of the same individual moving between the regimes of the Mental Health Act and the Mental Capacity Act, but I should also like to draw attention to the difficulties identified by the legal profession, which has taken a close interest in the Bill. We benefited from MH55, a paper submitted by Robert Robinson, a solicitor with Scott-Moncrieff, Harbour and Sinclair in London, who pursued the Bournewood case. He quotes the conclusion of the Joint Committee on Human Rights, which commented unfavourably on the guidance. It stated:

“We consider that deprivation of liberty is a less flexible and elusive concept than might be thought from the draft illustrative guidance. Since we posed this question to the Government”—

clearly, the Minister or her officials have had some discussion with lawyers on the subject—

“Munby J. has delivered judgment in J.E. and D.E. v. Surrey County Council and E.W., holding that the crucial issue in determining whether there is a deprivation of liberty is not so much whether the person’s freedom within the institutional setting is curtailed, but rather whether or not the person is free to leave.”

Such areas are complex and grey, but while they remain so, and as further case law emerges that only compounds the problem of definition, it seems that while seeking to fill the Bournewood gap, we are considering a much wider group of people than was alluded to in the original Bournewood case, shocking as it was. I met H.L., an adult in his 40s, after he left the Bournewood hospital. It must be said that for many years, he was an in-patient in that hospital, so his condition had quite a long track record, but none the less there were complications. I shall not digress too much into the Bournewood case, but it triggered the need to change the law, as it eventually went before the European Court of Human Rights and was found to involve a contravention of article 5 of the convention.

Given that the lawyers still feel that as more case law is made, an even wider group of people will be encompassed by the measures, clarity in the definition of deprivation of liberty is essential. The Minister must also examine the resource implications. I have alluded to just one group of people, purely because a court case involved somebody from it. The Government seem to think, judging by the documentation that they have put out, including the easy-read version of the Bournewood judgment, that we are talking about a small, discrete group, whereas the lawyers seem to be saying that many more people will be subject to this legislation than the Government are indicating.

Not only does that have implications for the deprivation of liberty—a wider group of people will be involved—but there are important resource implications. The Minister may not able to give specific answers today on the issues that I have raised, but before the page is closed on the Bill and it becomes an Act of Parliament, she should, yet again, be prepared to discuss this, face to face, with the lawyers. They have had a great involvement with the case and clearly know it well, so if they have ongoing concerns, it is important that the Minister is made aware of them.

I am not a lawyer, so I am giving the layman’s version of what the lawyers have sent me and the rest of the Committee. I hope that the Minister understands that this is an important part of getting things right. There is no party political divide, because we all want her to get this right, but I hope that before coming back to the House on Report, she will consider that this part of the Bill should be examined carefully and she will give an audience to those lawyers who continue to have concerns.

Rosie Winterton (Labour, Doncaster Central)

It may be helpful if I give an example of how the process might work. Let us consider a patient who is in his 70s and is physically fit and strong, but who has advanced dementia. He has been cared for at home by his wife, who has been struggling to cope with his behaviour. He is admitted to a care home in an emergency after his wife falls and breaks a hip. Understandably, the upheaval of the move has meant that he is extremely disturbed. Restrictions are needed to keep him calm and safe, and the family are asked not to take him out of the care home because he becomes so disorientated and distressed. The care home considers this to amount to a deprivation of liberty and applies for an authorisation.

In those circumstances, the local authority would arrange for an assessment to be carried out. Let us suppose that the psychiatrist who has been seeing the gentleman as an out-patient confirms the diagnosis of mental disorder and assesses the likely impact of the care proposed and the capacity of Peter—that is what I shall call him—to consent. A social worker with extensive experience in the care of the elderly, who has no connection with the gentleman’s case, is appointed to make an independent assessment of what is in Peter’s best interests. The outcome of the assessment is that deprivation of liberty is authorised for three months and Peter’s son is appointed to act as his representative.

Let us then suppose that after nine weeks, Peter’s wife comes back home, much recovered, and wants her husband to return to live with her. The son requests a review of the authorisation, and the best interests assessor, after speaking to Peter, his wife, their son and the care home, recommends that he should return home. The authorisation would be terminated, and the gentleman would return home, with the support of carers provided morning and evening.

I understand the desire of the hon. Member for Tiverton and Honiton to define the deprivation of liberty, but it is almost impossible to give a definition that could be used in every case. In the code of practice we have tried to identify factors that the courts have used to determine whether a person is deprived of liberty. Some of the factors that we have given are:

“Restraint was used, including sedation, to admit a person who was resisting;

Professionals exercised complete and effective control over care and movement for a significant period;

Professionals exercised control over assessments, treatment, contacts and residence”,

if a decision has been taken that the person would be

“prevented from leaving if they made a meaningful attempt to do so;

A request by carers for the person to be discharged to their care was refused”—

that was particularly relevant to the case with which the hon. Lady is familiar—

“The person was unable to maintain social contacts because of restrictions placed on access to other people;

The person lost autonomy because they were under continuous supervision and control.”

It is right that there is an ability to examine each individual to see whether it is considered that what is happening is a deprivation of liberty. It is difficult for us to consider every case in which someone is deprived, because it often depends on the individual and what they consider to be a deprivation of their liberty as well as the views of those around them.

Madeleine Moon (Labour, Bridgend)

There is a situation that might well arise in the circumstances that my right hon. Friend the Minister described. Would it be a deprivation of liberty if it were agreed that the gentleman could go home, and his family wanted him home but could not have him without the provision of the care package of two calls a day that she described, and the local authority was unable to implement it? In the scenario that was described, that is the hitch—a local authority’s ability to put in the care package. I would welcome clarification of that.

Rosie Winterton (Labour, Doncaster Central)

But I believe that that is why the best interests assessor would come into it. The assessor would have to balance what was happening in the care home with what it would be possible to achieve in the home. One may well be dependent upon the other, so that the authorisation would be terminated if it were felt that the appropriate packages were in place. My officials are nodding encouragingly, so I assume that that is right.

Angela Browning (Conservative, Tiverton and Honiton)

I hope that the Minister’s officials will continue to nod encouragingly. I am genuinely trying to be helpful, but I have reservations because the lawyers have raised them with us. I wish to return to the case of an elderly person with dementia, perhaps wandering around in a residential setting and trying to leave. In the case that I mentioned, JE and DE v. Surrey County Council and EW, with which I am sure the Minister’s officials will be familiar, Munby J. referred in his judgment to

“the necessary objective element in a deprivation of liberty”.

That was a judge determining his own interpretation of a deprivation of liberty, and he said in his summing up:

“In the type of case with which I am here concerned, the key factor is whether the person is, or is not, free to leave”.

If that is how the courts are determining it, I wonder why the Minister cannot be a little more clear about her definition.

Rosie Winterton (Labour, Doncaster Central)

Because, as the hon. Lady has pointed out, the courts in that case looked at the individual’s circumstances. We have tried in the code of practice to say, “These are the types of things that the courts have looked at.” If we said in legislation, “These are the only things that can amount to a deprivation of liberty,” we could be open to some of the challenges that brought about the provision in the first place. We do not want to try to stipulate that and so exclude people who might feel, or whose carers or family might feel, that there had been a deprivation of liberty because we had specifically set that out in legislation. It would be almost impossible for us not to lay ourselves open to even more legal challenges. Having said that, I would be more than happy for the audience with the lawyers, suggested by the hon. Lady, to take place—not least because it sounds very grand. However, I may defer to my officials on that issue so that they can discuss with the relevant lawyers in the Department whether such an audience would be appropriate.

I turn briefly to the relevant figures. We have estimated that about 21,000 assessments will need to be made in the first year; after that, we estimate that there will be about 5,000 per year. We are discussing that with the relevant local authorities and will keep the issue under review.

Given those reassurances, I hope that the Committee will accept the Government’s amendments, which, as I say, are meant to be safeguards on an important issue.

Angela Browning (Conservative, Tiverton and Honiton)

I appreciate the Minister’s offer to consider the audience and shall do my best to pass that on. However, will she comment on my point about the need for clarity between patients who might move from one Act to the next?

Rosie Winterton (Labour, Doncaster Central)

As I said, we try to ensure that patients have as much information as possible about their rights and the safeguards that are in one or other of the Acts. Obviously, different criteria apply to each, and we shall try to make that as clear as possible.

Schedule 6

Angela Browning (Conservative, Tiverton and Honiton)

I beg to move amendment No. 11, in schedule 6, page 79, line 9, at end insert—

‘(3) Where the managing authority deprives P of his liberty by detaining him as mentioned in paragraph 1(2), the appropriate NHS body or local authority which has authorised the detention shall make arrangements for the provision of the accommodation with care or treatment, and it shall be free of charge.’.

We come now to the question of charges and the Government’s provision to amend the Mental Capacity Act 2005. The issue was debated in another place, but the Government rejected its proposals, so I make no apology for reintroducing it in Committee.

There are clear differences in the treatment of patients deprived of their liberty under the Mental Capacity Act and that applied to those deprived of their liberty under the Mental Health Act 1983. In the previous sitting, I alluded to the fact that I hope that the Minister will give some clarification regarding those patients who drift, as it were, between one piece of legislation and the other—we have not as yet had such clarification.

There are costs associated with the treatment of patients whose liberty has been withdrawn under the Mental Capacity Act. Accommodation is free for a person who is sectioned under the Mental Health Act—their liberty has been taken from them so that they can be treated—but the Government propose to charge for the accommodation and care received by those who have their liberty deprived them under the Mental Capacity Act. A person detained under section 3 of the Mental Health Act would find, on discharge, that their after care was free, whereas the Government propose that under the Mental Capacity Act, after care will be subject to a charge.

Equally, the appeals process will treat differently two groups of people who have been deprived of their liberty. For those detained under the Mental Health Act, the appeals process will be free, whereas there will be a charge connected to the appeals process to the Court of Protection under the Mental Capacity Act. We are seeing the development not only of an unequal footing, but of a clear disadvantage, particularly on charging, for those patients whose liberty is removed under the Mental Capacity Act.

The Government did not accept that argument in the Lords, so I am asking the Minister to look at the matter again.

Chris Bryant (Labour, Rhondda)

This is obviously an important issue. Will the hon. Lady comment on the situation of foreign nationals? I have friends who are consultant psychiatrists in London. They have told me that they regularly face foreign nationals with personality disorders whom they have to detain—they could not possibly allow such people to go free on the streets. They are not, however, British nationals. The consultants suspect that, sometimes, the relatives of foreign nationals with mental health problems come to London to dump them. That happens particularly in the case of people from African countries that do not have suitable mental health services. What does the hon. Lady think about charging in such a situation?

Angela Browning (Conservative, Tiverton and Honiton)

We have clear rules about charging foreign nationals. It is a matter for the Government to determine health service policy, whether it is to do with physical or mental health. I have a lot of sympathy for people who are mentally ill. They often come to the attention of the appropriate authorities only after ending up on the streets. Anybody who is identified as having a serious illness is entitled to treatment—charging is a matter for the Government to decide. I would not preclude foreign nationals from receiving appropriate treatment whether they had come here of their own volition or been hoodwinked into coming here.

The legislation begins to identify and treat people differently, and to apply different sets of rules to people who, for their own good, have had their liberty removed. If people are sectioned under the existing Mental Health Act, everything is paid for, whereas those dealt with under the Mental Capacity Act are charged for their care. The danger for the Minister is that once the measures are operational and such things become apparent, relatives, carers and others might try to encourage patients down the Mental Health Act route because of the financial consequences for them and possibly even for those associated with them.

Tim Boswell (Conservative, Daventry)

Does my hon. Friend agree that if the circumstances are broadly similar and patients are receiving the same regime, whether formally in a hospital or otherwise, and if the essential difference between them is that some are detained under the Mental Health Act and some under the rather more comprehensive provisions of the Mental Capacity Act—if there is no other difference except their in statutory detention—it is a prima facie case of discrimination under the European convention, because the public authorities will be delivering a service partially between one case and another?

Angela Browning (Conservative, Tiverton and Honiton)

My hon. Friend is right. The purpose of the amendment tabled by my hon. Friends on both ends of the Bench is to establish what happens to a person deprived of liberty, particularly in a care home. It is a slightly different dimension from the Mental Health Act, because we are now considering not just hospitalisation but another kind of accommodation—care homes of one sort and another.

In all other cases where a person is detained, the charges are paid, but if someone is detained in a care home or nursing home, suddenly they are compared not to people detained under the Mental Health Act but to other people resident in care homes and nursing homes, who may well be there as a result of their decision, or that of their carers or relatives, that it is in their best interests. They might be self-funded, paid for by the local authority or a combination of the two. I suggest to the Minister that that is not a comparison for her to make, because such people are a separate group from those whose liberty is denied them for their own good but under the auspices of the Mental Capacity Act.

Although we agree with the proposal, we think that it is unfair to expect people to pay once an authorisation to deprive them of their liberty has been granted. It will put them at a disadvantage relative to all others detained elsewhere, usually in hospitals. I think that the Minister has been looking through the wrong end of the telescope in opposing the amendment. I realise that it has big resource implications; of course it does.

The Minister of State, Department of Health (Ms Rosie Winterton) indicated assent.

Angela Browning (Conservative, Tiverton and Honiton)

The Minister is nodding. I hope to come to resources later in a little more detail, because she has flagged up her concern, but the fact that she is concerned about resources is no reason for her not to do the right and just thing. It is clearly right and just to the group of people described in the amendment for her to reconsider the issue. Otherwise, the consequence, perhaps unexpected, will be that over time, the Mental Capacity Act will be used only in certain circumstances, and that it will not be as effective, because people will opt for the Mental Health Act. That would be quite the wrong effect, and contrary to what she is trying to do in identifying how she will deal with the Bournewood determination in the European Court.

Rosie Winterton (Labour, Doncaster Central)

As the hon. Lady said, the amendment seeks to provide free accommodation, care and treatment for all people deprived of liberty under the Mental Capacity Act 2005. I would like to challenge what she said about people choosing between the Mental Health Act 1983 and the Mental Capacity Act because there are obvious differences between the two. The criteria under the Mental Health Act are that an individual has a mental disorder of a degree or nature that they need to be in hospital, that they are a risk either to themselves or others and that appropriate medical treatment is available for their mental disorder. That is a very clear set of criteria. For people to be detained under the Mental Health Act, there must be a clinical judgment that all those criteria are met. One cannot go along and say, “I fancy being detained under the Mental Health Act.” One has to meet the strict criteria.

In the Mental Capacity Act, we are talking about an individual with a mental disorder who does not have the capacity to consent, and it is in their own best interests to be deprived of liberty; they are not a danger to others. We mentioned a number of such incidents this morning. Therefore, it is not a question of choosing between one of the two in a pick-and-mix approach. It is about meeting the criteria.

Let us take the situation of a person who is being deprived of their liberty and is in a hospital setting. That person might have advanced dementia. Their relatives might be asked not to take that individual outside the ward because they could become disorientated and distressed. If that was felt to be a deprivation of liberty, that person would be assessed. Of course, they are in a hospital setting in which the care and stay is free. Therefore, what we are talking about is the cost of personal care in care homes. The people to whom the new safeguards will apply in terms of an authorisation for the deprivation of liberty will largely be those with severe dementia or similar problems. Many of them will be living in a residential care setting. Any financial contribution that they may make towards the cost of their care is determined by the national policy on means testing. Since 1948, health care has been provided free in England and Wales and social care is mean-tested. Nothing in those new safeguards calls into question those fundamental principles.

Obviously, safeguards will add new protections for the human rights of those people and independent checks will ensure that it is in their best interest to be deprived of their liberty. There will be new rights of challenge for them and their family if they disagree with decisions. Giving people new rights and protections is not a reason to change the arrangements that apply to funding, health and social care.

Again, I must stress that if a person was in a care home and subject to a standard authorisation to deprive them of liberty, it could only be because an independent assessment had concluded that it was necessary and in their own best interests to keep them safe. We do not think that that should lead to changes in the way that their care is commissioned and funded. In many ways, the care regime for such a person is likely to be the same as that for others in the care home with a similar condition. There will be restrictions for the person’s own protection, but that does not mean that their whole care package should suddenly be free of charge.

I shall give an example of an individual called Mary, who has been living in a care home for a number of years. She has considerable means and is paying for her care. She chose the home herself. She was able to go out regularly and enjoyed using all the shared facilities of the home and garden. Mary suffers from dementia and, over time, her behaviour has become extremely disturbed in a way that puts her safety at risk, both when she goes out and when she is in the home. Her family want her to remain in the familiar environment of the care home as long as possible, but it has become necessary to increase restrictions to keep her safe. Eventually, the care home decides that all of the restrictions may add up to a deprivation of liberty and seeks authorisation, which is granted. However, given that those restrictions have been granted in Mary’s best interests, there is no reason for there to be a change in how her care is funded.

We must consider the views of residents in circumstances when care for another resident suddenly becomes free because restrictions have been put in place for that person’s best interests, but their care does not. Under the amendment, Mary would immediately cease to pay for her care. That does not seem logical or fair to other residents. It would create unacceptable inequities between those care home residents who are deprived of liberty and those who are not.

Let us consider Ruth and Jean, two ladies in their 80s who are both living alone. Ruth develops dementia and, after a time, can no longer look after herself. Carers are arranged, but she refuses to have them in the house. Things come to a head when she is found in the road, late on a winter’s night, unwell and in her nightclothes—something that we know can occur. An ambulance is called. When she has recovered enough, a placement is arranged in a care home. That move is supported by her daughter, but disputed by her son who wants her to go back home. Initially, Ruth is extremely unsettled in the care home and her behaviour is very disturbed. Taking account of all the circumstances, including the restrictions needed to keep her safe, the care home applies for authorisation to deprive her of her liberty, and that is granted.

Jean, meanwhile, suffers a major stroke. After a period of rehabilitation, she is not well enough to manage at home on her own. She is not able to make the decision herself and her family, with great regret, agree that it would be best to move her to a care home. If the amendment were accepted, Ruth’s care would be free, but Jean would have to pay for her care. That would be unfair.

The decisions in such difficult cases are about whether it is necessary for a person to be deprived of liberty and whether that should be based purely on the genuine care and treatment needs of the person concerned. The amendment would risk introducing financial considerations into the equation. If we are talking about opting for different scenarios, it would almost be better for the person to reach a situation in which they were being deprived of their liberty because, under the amendment, their care would then become free. That perverse incentive would arise from the amendment.

The amendment would also place a duty on the NHS body or local authority that had authorised deprivation of liberty to make arrangements for the provision of the relevant accommodation. The supervisory body might also be involved in commissioning care arrangements, but that would not always be so—for example, it would not be involved if a private arrangement had been made between a family and the care home.

There are some genuine problems with the approach that is being proposed. We need to ensure that there are safeguards in provision of care that requires restrictions. Treatment is not covered. The hon. Lady’s proposals would introduce what is tantamount to an incentive for people to be deprived of their liberty, because that would be the cheaper option. They could also create distinctions between, for example, two care home residents, both of whom are receiving good care and attention, by allowing only one to receive free care. For that reason I ask the hon. Lady to withdraw her amendment.

Angela Browning (Conservative, Tiverton and Honiton)

I do not really buy the Minister’s arguments and I increasingly feel that those arguments are resource driven. Her own Department’s documentation, in describing such people, refers to them as

“a small group of people who need to be kept in a hospital or a care home with a lot of controls on their freedom in order to protect them from harm.”

By definition, therefore, the Minister is contemplating a small, discrete group, and the resource implications consequently should not be prohibitive.

Detention and deprivation of liberty under the Mental Capacity Act are subject to article 5 of the European convention on human rights. Contravention of that article led to the Bournewood determination in the first place. Article 14 of the convention prohibits unjustified discrimination in the application of any of the other articles, including—of course—article 5, so there is not necessarily any difference between people detained under the Bournewood provisions and others in the same accommodation who are being looked after under, say, section 117 of the Mental Health Act. Both might lack capacity, be compliant, have a mental disorder or disability, need residential care, require high levels of care and be subject in their own interests to legislation, yet one would be charged and the other would not.

That point was made to the Government by the Joint Committee on Human Rights. In paragraph 91 of its communication to the Minister, it said:

“In our opinion, to charge someone for accommodation in which they are deprived of their liberty potentially engages civil rights and obligations and therefore the right to access to a court to determine those rights under Article 6 of the Convention. There is potential for discrimination for the purposes ofArticles 5 and 6 and Article 14, in that a person deprived of their liberty in their own best interests in a hospital will not be charged for the detention whereas a person deprived of their liberty in their own best interests in a care home will”.

I understand that the Government responded to that in the main simply by listing the current provisions, rather than by giving a substantive reply.

I am not a lawyer, let alone a human rights lawyer; there are others more knowledgeable than I who are. I am prepared to withdraw the amendment, but I must press the Minister to ask her officials to look again at the convention, and in particular the interaction between articles 5, 6 and 14. It seems to me that it is not only those of us who tabled the amendment who believe that there is unfairness and discrepancy.

Chris Bryant (Labour, Rhondda)

The hon. Lady said that the problem is one of resources, so I presume that she would not be so irresponsible as to table an amendment whose cost implications she did not know. What does she think those cost implications would be?

Angela Browning (Conservative, Tiverton and Honiton)

I tabled the amendment because of what is said in the Bill, and I want the Minister to explain how this group of people will be treated. I do not believe that there are huge resource implications. I repeat the words used by the Minister, which were that “a small group of people” will need to be detained under certain conditions. The hon. Gentleman is right that there are resource implications, but I would not have thought that they were so enormous overall that the Minister would need to turn down the request for the provisions to be included in the Bill. I am more concerned about whether the provision complies with the European convention, because if it does not we will have more test cases. That would be ironic, given that it was contravention of article 5 that led to the Bournewood judgment in the first place.

I will withdraw the amendment, but I ask the Minister to engage with her officials and hold any other audiences that need to be held to pursue the matter and get some clarity on how different parts of the convention overlap. I beg to ask leave to withdraw the amendment.

Angela Browning (Conservative, Tiverton and Honiton)

I beg to move amendment No. 72, in schedule 6, page 88, line 23, at end insert—

‘( ) The relevant person, when they are consulted by the best interests assessor under paragraph 4(7) of the Mental Capacity Act 2005, has the right to the support of an appointed Independent Mental Capacity Advocate during the assessment process.’.

The amendment deals with independent advocacy, which we have touched upon briefly. The Minister said she would bring back proposals in the light of discussions in another place, where the Minister there said that the Government wanted to provide tailored advocacy. I can think of nothing more appropriate to tailored advocacy than the requirement in the amendment.

We believe that it is very important that the relevant person, when they are consulted by the best interests assessor under section 4(7) of the Mental Capacity Act, has the right to the support of an appointed, independent mental capacity advocate during the assessment process. The relevant person should have that access if they need it. Not all will need it, but the Bill should provide a facility for an independent advocate to be part of the decision making right at the beginning. I am not saying that it is needed exclusively at the beginning; there are other points at which independent advocacy is needed throughout the process of implementing that part of the 2005 Act, as amended.

Advocacy is important—it is the key to promoting the rights and needs of patients deprived of their liberty. When the Mental Capacity Bill was before the House we had a lot of detailed discussion about advocacy being important, not least for some patients in communicating their views. It is sometimes important also for the person who is trying to assist the patient, whether they are a professional, a carer or someone who has the right under the 2005 Act to represent the patient’s views. They would all benefit from the help of an independent advocate. A person lacking the capacity to consent to their care and treatment is likely to need support to express their views, and there could be other communication complications that require expertise.

One of our worries when the 2005 Act went through was that if there was insufficient advocacy—if it was not provided in a timely fashion and the advocate was not able to assist and intervene—decisions would be made without the person’s view being properly understood. That is important, as is the right to support during the assessment process.

The purpose of the amendment is to ask the Minister yet again what the Government’s intention is for independent advocacy, which the Making Decisions Alliance is already on record as supporting. Independent advocacy is also supported by the Disability Rights Commission, which stated

“Without rights to independent advocacy access to such a vital service will remain a postcode lottery and at the discretion of mental health professionals. Without such rights the Bill will not, in our view, provide effective protection for the human rights of mental health service users in situations where they risk being deprived of their liberty... Advocacy forms a vital safeguard against the improper use of power against a person denied their liberty.”

That statement could apply to many parts of the Bill. However, it is particularly important here because we believe that a person’s treatment will benefit from access to independent advocacy. It could prevent much misunderstanding during their treatment and management. Although I am well aware of the resource implications of early intervention and early access to independent advocacy, it could in the long run save money and prevent wrong decisions from being made.

Rosie Winterton (Labour, Doncaster Central)

I certainly sympathise with the aims of the amendment, but I hope that, when I explain more about the best interests assessor, the hon. Lady will accept that the aims of the amendment are covered by the safeguards that we are introducing.

The safeguards that we are adding to the Mental Capacity Act 2005 will introduce someone whose only role in the process is to establish and recommend what is in the best interests of the person concerned. That will be the role of the best interests assessor, who will be independent of everyone else in the process and who will act in the best interests of the individual. It will be the job and statutory duty of the best interests assessor to involve the person as far as possible and to take account of their past and present wishes, feelings, beliefs and values. The independent best interests assessor will need to do all they can to involve the person and find out what their views and wishes are, and the assessor should have the competence and skills to do that. Of course, that is a challenge and if the best interests assessor feels that an advocate would help with the process, they can ask for one to be appointed. However, it is the job of the best interests assessor to ensure that they know the views of the individual so that they can make the assessment in an independent way.

Tim Boswell (Conservative, Daventry)

I am grateful to the Minister for assisting the Committee as we look at some sensitive matters. Would she agree that this paragon—the best interests assessor—should have a duty not only to consider the wishes and previously expressed views and values of the patient, but to make their own judgment? That might be contrary to previously expressed wishes if they were felt not to be in the best interests of the person. If that is the case, can the Minister assure the Committee that the paragons, as I call them, will be sufficiently trained and have the robustness to make the right decision? Of course, they will not always get it right, but we would like to feel that they will address the matter in a well informed way. My hon. Friend the Member for Tiverton and Honiton made the point, to which the Minister has partially replied, that it might well be sensible for them to take a second opinion from an independent assessor, if that is helpful to the process.

Rosie Winterton (Labour, Doncaster Central)

The best interests assessor is an independent assessor; that is the point of having them. If necessary, they could say that it would be helpful to appoint an advocate—although they would not do the appointing as that would be done by the PCT or local authority. It is the job of the best interests assessor to try to ascertain the wishes of the individual. The Mental Capacity Act code of guidance gives extensive guidance on the practical issue of communicating with people who may lack capacity. It is important that, in many cases, the assessor involves others who are perhaps used to communicating with the person. That might be the family or carers who have established a relationship of trust; or they may need to involve specialist interpreters, signers or, if relevant, advocates. We are making it clear that the independent assessor should follow that route. The support of an independent mental health advocate as well would not be necessary in all circumstances, except for the real circumstances of there being no one appropriate among friends or family to consult, which we all refer back to in the Mental Capacity Act.

Our problem with the amendment is the possibility of the IMHA and the best interests assessor both seeking the input of the person concerned and both speaking to family, friends and carers, which would not only be cumbersome but also quite confusing for the person and the family. Frankly, it might also be quite intrusive and heavy-handed and, because of the possible confusion, could cause unnecessary distress and anxiety, which I know the hon. Lady would not want to see. I am sure that the amendment is probing and designed to explore the role of the independent assessor.

Angela Browning (Conservative, Tiverton and Honiton)

Who would the Minister imagine to be the independent assessor? Is it most likely to be a social worker?

Rosie Winterton (Labour, Doncaster Central)

Yes. I hope that with those reassurances the hon. Lady will withdraw her amendment.

Angela Browning (Conservative, Tiverton and Honiton)

I have listened carefully to the Minister’s answer. I perked up right at the beginning when she expressed some sympathy, but she cooled off. I felt dashed at the end, because she was not warming to our proposal.

There is a practical problem. Not all social workers in the role of independent assessor would, for example, be specialists in non-verbal communications. An IMHA would then be needed, because hopefully they would have that sort of specialism. Specialists are needed to assist people with non-verbal communication—not just those without speech because of a physical disability, but particularly those who are poor at communicating because they have a communication disorder, for example.

Tim Boswell (Conservative, Daventry)

Does my hon. Friend agree that an important competence for the independent assessor should be the ability to know when they are getting out of their depth? They need to know when to call in an expert, either to assist with communication or because of some other aspect of the best interest test that they might need to consider.

Angela Browning (Conservative, Tiverton and Honiton)

Indeed, and although I hope that that would not be the norm, one can envisage an advocate not being employed to support the person to communicate. In practice, the best interests assessor might rely quite heavily on information from family members or carers, who may be experts in communicating with the person. That often happens and would not be a problem. However, there are occasionally other cases. I recall service users giving evidence to the Mental Capacity Bill scrutiny Committee almost making a unilateral declaration of independence of mum and dad and highlighting the possibility of circumstances in which mum and dad are not advocating or proposing what the person concerned would like to be known. I suggest that those are a minority of cases rather than the norm, but the legislation needs to safeguard against such unintended consequences. However, I beg to ask leave to withdraw the amendment.

Rosie Winterton (Labour, Doncaster Central)

I beg to move amendment No. 49, in schedule 6, page 91, line 31, leave out from ‘right’ to end of line 32 and insert

‘to make an application to the court to exercise its jurisdiction under section 21A;’.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss Government amendments Nos. 51 and 52.

Rosie Winterton (Labour, Doncaster Central)

The amendments change the wording used to refer to application to the Court of Protection. They are purely technical and do not in any way alter the rights of the person concerned, or of that person’s representative, to make applications to the Court of Protection about deprivation of liberty. Their purpose is to ensure that references to access to the court are completely accurate. The correct reference is to a right to make an application that the court exercise its jurisdiction under section 21A of the 2005 Act, rather than to the right to make an application under section 21A. The subject matter is very technical. I hope that the Committee will support the amendments.

Rosie Winterton (Labour, Doncaster Central)

I beg to move amendment No. 50, in schedule 6, page 94, line 32, at end insert—

‘(aa) the person to whom the request relates;’.

The amendment would ensure that the person concerned was informed if a request was made to assess whether they were being unlawfully deprived of their liberty. We expect such situations to arise only very rarely. If a person such as a family member believed that their relative’s liberty was being removed unlawfully, they should draw that to the attention of the hospital or care home managers and ask them either to apply for an authorisation or end the deprivation of liberty. If the managers did not take action, the third party could apply to the supervisory body to commission an assessment of whether there was deprivation. If the outcome was that the deprivation was unauthorised, the full assessment procedure was immediately triggered as if the managers had applied for an authorisation.

The amendment requires the person concerned to be informed by the supervisory body that a request has been made to assess whether there is deprivation of liberty, to be informed of whether an assessor has been appointed, and to know the name of the assessor and the outcome of the assessment. In most cases, the request would be made by a family member or friend, who would be able to tell the person concerned. The amendment is simply for completeness. It will provide an important protection and I hope that it will be accepted.

Tim Boswell (Conservative, Daventry)

It is self-evident, I think, that the amendment more or less covers the population of people who might have an interest in the matter and is designed to ensure the issuance of a formal notice to the person concerned. If that person had others acting for them, such as an attorney under the Mental Capacity Act, would the notification to that person be available to the others who were acting on their behalf and how would it reach them? Has the procedure really been as comprehensively tied up as I am sure both the Minister and I would wish?

Rosie Winterton (Labour, Doncaster Central)

That is a very good question, to which I am awaiting the answer. If, for example, the Court of Protection appointee was looking after the care of the individual and taking decisions, I suspect it would be right for them to be informed. If, however, the individual merely had a financial authorisation from the Court of Protection, notification might not be appropriate. I suspect that it might be good practice, but individuals should make sure that they were not breaching confidences. We will address it in the code of practice, particularly now that it has been so carefully drawn to our attention.

Tim Boswell (Conservative, Daventry)

I do not think that I can ask for more than that, although the second course is arriving even as I speak. However, rather than make a meal of it now, will the Minister at least undertake to reflect on the point? We have a common objective; it is simply a matter of ensuring that all the relevant people who might be involved, whether deputies, attorneys or whatever, get to know about a request without breaching confidences or embarrassing anyone.

Rosie Winterton (Labour, Doncaster Central)

I am helpfully informed that notification of the attorneys and deputies is decision-specific, so I was right on that. So the answer is: it depends. We will explore that in the code of practice.

Angela Browning (Conservative, Tiverton and Honiton)

I beg to move amendment No. 12, in schedule 6, page 116, line 34, at end insert—

None

Rosie Winterton (Labour, Doncaster Central)

No, we are rapt.

Angela Browning (Conservative, Tiverton and Honiton)

I am grateful. The amendment is about the provision for a second medical opinion on the treatment of serious medical conditions. I think it would be helpful if I began by clarifying what we mean by serious medical treatment. In the context of the relevant group of patients, we obviously think of electroconvulsive therapy. We discussed ECT earlier in the Committee, and it is a subject that immediately alerts people to the need for safeguards, but the term also includes major surgery, such as open heart surgery; certain types of chemotherapy or cancer surgery; major amputations; treatments that will result in permanent loss of hearing or sight; the withholding or withdrawing of certain types of treatment, and abortion or caesarean section, although not termination of pregnancy.

Those are all serious procedures, and one would hope that anybody detained under the Mental Capacity Act would also be provided with the right to a second opinion when any such procedure was being considered. Within the context of that Act there is very small group of people who are befriended and have support in decision making on those matters. That responsibility often rests with relatives or carers, but I believe that the vast majority of those patients will find that they are severely disadvantaged because they come within the scope of the Mental Capacity Act and that Act lacks the safeguard of a right to second opinion. I believe that they should have a right to a second medical opinion on such serious medical treatments.

Those treatments, including medication and ECT, should be approved by an independent clinician through a second-opinion procedure. Under the Mental Health Act 1983 there is a statutory second medical opinion procedure for medication beyond three months and for ECT, and it seems iniquitous that the same safeguards should not be given to people treated under the Bournewood provisions. I find it hard to believe that the Minister can justify that group of people not receiving the same protections.

The second-opinion doctor should be a specialist in the field of medicine proposed. I know that the Government believe that that is unnecessary, as the person’s representative or an IMHA advocate will be able to request a second opinion on serious medical treatment if they consider it necessary, but I do not think that that gives the surety that such people will be knowledgeable enough in that area of medicine to know when a second opinion should be sought. Whether they go out of their way to seek that second opinion will be pretty hit and miss if it is not in the Bill. They might not have the skills to recognise when a second opinion is needed.

We are considering some serious inequalities between a group of people treated under the Bournewood rules and the Mental Capacity Act and those subject both to the Mental Health Act and to what is sometimes normal medical practice in a serious situation. I hope that the Government will be amenable to considering those groups of people again. Before the Minister jumps up or the hon. Member for Rhondda asks me if I have costed my proposal, let me say that I do not think that there will be huge resource implications, but in the interests of the patient without the right to a second opinion—and of the medical staff taking responsibility for them in complex and serious situations—I ask the Minister seriously to consider accepting the amendment.

Tim Boswell (Conservative, Daventry)

I echo my hon. Friend’s remarks. These are serious matters in substance, and there are concerns about anomalies between the treatment of Mental Capacity Act or Bournewood patients and those detained under the Mental Health Act. I understand that it may not be possible to produce an identity of treatment, but I am sure that we all want safeguards in order to get as near to that as we can. I should like to add two points to the mix for the Minister to consider.

The first—I am not sure whether something was said about it while I was detained outside the Committee this morning—is the question of the status under the Human Rights Act 1998 of any resident of an independent care home. It is a matter of some concern in the wider context whether the protections of that Act are available as they would be to a resident of a public hospital.

The second point, which has only recently come to my attention—I am worried that another interpretation may even be possible—arises from the fact that the Government are considering corporate manslaughter legislation. One would like to feel that the safeguards of such legislation will be available to patients equally, whether they are detained under the Mental Health Act or the Mental Capacity Act—that is one test—and whether they are resident in a private sector care home or hospital, or in public provision.

Nobody is saying that we can produce an ideal and perfect solution, but it is important to reduce the anomalies to a bare minimum. It is also important to remember that such matters involve extremely serious decisions—by definition, life-or-death and related important decisions—and we owe it to those vulnerable people to ensure that they are treated properly and given all the rights available to their counterparts under the law.

Rosie Winterton (Labour, Doncaster Central)

I hope that I shall be able to give some reassurance. I understand the desire to ensure that all the proper safeguards are in place, but a deprivation of liberty authorisation deals only with the deprivation of liberty. It does not authorise any course of treatment. The provision of treatment to a person who lacks capacity to consent must be in accordance with the arrangements and safeguards in the Mental Capacity Act. The authorisation is entirely different; it is simply about the deprivation of liberty.

Where the primary reason for the deprivation of liberty is to allow treatment to take place, the benefits of treatment would be considered as part of the best interests assessment. That does not replace but is in addition to the requirement to comply with the Mental Capacity Act. We are talking about two entirely different things: deprivation of liberty and the provision of medical treatment, which reverts back to the Mental Capacity Act. For that reason, I urge the hon. Lady to withdraw the amendment.

Angela Browning (Conservative, Tiverton and Honiton)

Will the Minister clarify the position regarding a second medical opinion being sought when serious medical treatment is being considered?

Rosie Winterton (Labour, Doncaster Central)

If a second medical opinion is required under the Mental Capacity Act, the requirement would come into effect at that time. However, that is to do with treatment issues under the Mental Capacity Act. Under the Mental Health Act, which is entirely different, a second medical opinion is sought, first, before admission to hospital and, secondly, if there is a compulsory treatment order concerning, say, medication. Treatment under the Mental Health Act is an entirely different issue. The Mental Capacity Act kicks in, as it were, in relation to treatment, but the schedule is about the deprivation of liberty that arises from Bournewood. The authorisation for such a deprivation is different—it does not bring about treatment.

Tim Boswell (Conservative, Daventry)

I think that the Minister is helping us. As I see it, the measure will effectively establish a defence for a clinician against an accusation of depriving a person of their liberty under Bournewood terms; it is about determining whether they have committed an offence by detaining somebody against their will, which is important.

The Minister then said that all of the safeguards available under the Mental Capacity Act will continue in relation to treatment, which I understand. However, if the distinction that she is making is complicated and only just intelligible to the Committee, it is important that clinicians are properly trained on the interaction of the two provisions and that their clinical decisions are carefully recorded in terms of what powers they are using and when. In a real world situation, the decision to detain and the decision to treat are not quite as discrete as they appear in the tidy minds of the draftsmen; they might be consecutive or contemporaneous.

Having spent some time briefing people on how the Mental Capacity Act works, I can see that there will be serious difficulties in explaining even to sophisticated clinicians exactly what the critical path of decision making would be. That is not to disagree with the Minister, because she has made a fair distinction. The distinction, however, needs to be conveyed in simple but sufficiently comprehensive terms to those who will be making the clinical decisions.

Rosie Winterton (Labour, Doncaster Central)

I certainly take on board the fact that we need to communicate simply and clearly. The hon. Gentleman referred to clinicians, but they might not be the people who decide on the deprivation of liberty. The measure is most likely to be used in respect of someone in a care home; it is not about medical treatment. We need to be clear that we are not necessarily talking about decisions that would be made by clinicians. With that, I hope that the hon. Lady withdraws the amendment.

Angela Browning (Conservative, Tiverton and Honiton)

I have to say to the Minister that I would like to go away and study the matter and to come back on Thursday, but I do not have such an opportunity. I will go away and study and come back on Report because I am not totally convinced about the Minister praying in aid the Mental Capacity Act and the best interests provisions. I am not clear whether she is relying on the best interests measure in that Act to determine the issue. If that is the case, I have ongoing reservations. I think that the principle of a right to a second opinion should apply, whether or not best interests determine the decision on serious treatment. However, I beg to ask leave to withdraw the amendment.

Angela Browning (Conservative, Tiverton and Honiton)

I want to speak to schedule 6 because it is the principal part of the Bill that involves the Bournewood determination and the way in which the Minister intends to put it into legislation. In the debate on the amendments, I flagged up a very clear differentiation in treatment between people who are detained under the Mental Health Act and those detained under the Mental Capacity Act. That is not to say that I withdraw my support for the Minister in enshrining the Bournewood outcomes into the Mental Capacity Act rather than the Mental Health Act. We are all agreed on that, but as I said at the beginning, we need to get this right. The Minister’s rejection of some of the amendments tabled in this Committee and in the other place was clearly based on resource implications. We all understand that for the Government, those implications are material and have to be taken into account.

However, when the Minister considers how to implement the schedule I should like her to look again at the advice that she herself issued when the Bournewood judgment was published. The Department immediately sent out interim guidelines to PCTs, social services departments and so on. In that advice, the Minister flagged up something that I have been alluding to in our discussions of the amendments to schedule 6. We can see the differentiation very clearly. In the guidelines, the Minister alluded to the fact that there was a choice between detaining people under the Mental Health Act, which was all that the Government had at the time, or detaining people but not under the Mental Health Act. She alerted professionals in the field to the fact that

a significant increase in the use of the Mental Health Act will inevitably put considerable further pressure on local authority approved social workers, the availability of second opinion appointed doctors (SOADs)”—

whom we discussed this morning—

“and on the operation of Mental Health Review Tribunals (MHRT).”

I must say to the Minister that, when it comes to getting the response to the Bournewood judgment right and enshrining it in statute, I still have reservations that her concerns about resources and funding are influencing her to reject amendments that have been tabled not only in this Committee but in another place. I have no doubt that we will return to those on Report and in another place.

Frank Cook (Labour, Stockton North)

I must make an announcement. Hon. Members are unquestionably sending text messages or responding to them. The Chairman’s Panel has specifically disapproved of such a practice. Therefore, I am appealing to all hon. Members on their honour to desist forthwith. If there is a need to send or respond to a text message, it can always be done outside the Room and outside my sight.

Schedule 8

Schedule 10

Clause 53

Clause 55

Tim Loughton (Conservative, East Worthing and Shoreham)

I usually try to put something into the last clause of a Bill. The Government have just taken out something without explaining why, but we shall pass that by. There is already a Mental Health Act 1983 and a Mental Health Act 1959, and my experience of dealing with legislation on children during the past few years is that a lot of Acts either have the title “Children Act” or have the word “children” somewhere in the title. I wonder why the Bill cannot be called the Mental Health (Amendment) Bill, given that it is a Bill to amend the 1983 Act rather than a Bill in its own right. That would at least distinguish it when people are referring to different parts of the mental health legislation.

Rosie Winterton (Labour, Doncaster Central)

In my experience to date, titles of Bills are subject to endless discussion—unsurprisingly. There was much discussion, for example, on whether the Mental Capacity Bill should instead have been called the Mental Incapacity Bill. We have to rely on the outstanding advice that we receive, and on this occasion we were advised that the right title would be “Mental Health Bill”.

New Clause 12

New Clause 13

New Clause 3

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move, That the clause be read a Second time.

The clause is a straightforward attempt to introduce a duty on health and local authorities to assess the needs of people with mental health problems, when appropriate, and to respond to written requests for assessment by certain key people within a fixed period. It provides also that clear reasons should be given for refusal.

The Scottish legislation has been referred to many times, and this will be another such occasion. In Scotland, a provision has been introduced whereby health and social services must respond to a reasonable request for assessment within 14 days. The response must take the form either of arrangement of an actual assessment or of written reasons for refusal.

Throughout our sittings, the Minister has admitted from time to time that past mental health provision in many areas was not good enough. I concede that things have to a certain extent improved, but there is a long way to go before they are good enough, and there are many parts of the country in which people do not have access to services. The patchy nature of access to mental health services means that in many respects it would be in the Government’s wider interests to have a mechanism whereby they could collect data indirectly on service availability. There are precedents in other Bills for providing such assessments. The Minister worked on the Adoption and Children Act 2002, which introduced a duty on local authorities to assess the needs of children who are being adopted.

In other areas of legislation, the Government have accepted the principle that there are occasions when there is a need for an assessment. The argument has been advanced that that somehow gives people with mental health problems greater rights than those with a physical health problem. That is not a robust argument because, for far too long, people with mental health problems and service users have felt that they do not have access to services and that they are the underdog when it comes to provision. The new clause would go some way to reassuring service users, who are quite worried by some of the compulsion aspects of the Bill, that if they come forward, their needs would be looked at in a wider context.

I shall quote a case story that does not involve a made-up Lily, Ruth or Mary. Lesley Savage is the mother of Daniel Gonzalez, who was convicted of killing four people in September 2004. She said that the family had made a hundred attempts to get help at various times and that

“We cannot list every phone call that went unanswered, every letter that went astray, every contact with a professional who told us they could not help or who passed us on to someone else. We cannot list here the ever-changing diagnoses that were offered, the ever-changing advice we were given, the lost and wrongly recorded notes that misled us and the professionals.”

If the Government are serious about preventing that sort of situation, providing an assessment would go a long way to allaying the fears of that mother, and the realistic fears of others who are in the system.

Section 47 of the National Health Service and Community Care Act 1990 already provides for a right to assessment for vulnerable people. The key mechanisms for enforcing that are the Commission for Social Care Inspection and the Healthcare Commission. In practice, section 47 assessments are severely limited. They are led by social services and focus on the need for community care services. In some authorities, assessments are carried out by a separate “adults with disabilities” team, which does not specialise in mental health care. Existing service users reported to the joint scrutiny Committee in 2004-05 that unless social workers are involved in their care, they are denied access to a community care assessment. The existing system provides a stop-gap, but does not address the problems and needs of service users.

By placing a duty on NHS organisations and social services departments to respond to requests for an assessment, the new clause would bring the 1990 Act up to date and reflect the more joined-up nature of services. It would also offer the same rights regardless of at what point an individual gets into contact with the system. Although the Government are considering many different people for being the approved person in charge, the new clause would ensure a holistic approach to assessments.

There is support for the new clause elsewhere. In 1999, the Government’s expert committee said that

“there should be a duty on the NHS and Social Services jointly to assess and meet the needs of people with mental health problems, with reasons if their needs could not be met.”

The joint parliamentary scrutiny Committee accepted that there was a compelling argument for balancing the draft Bill by including a duty to provide an appropriate and adequate mental health service. The Committee recommended that the Bill should include a duty on public services to assess and meet the mental health needs of people with mental health problems. The Disability Rights Commission has also stated that the Bill should include a right of assessment and treatment.

Rosie Winterton (Labour, Doncaster Central)

As I am sure the hon. Lady knows, the new clause was debated at length in the other place, and I am afraid that I wish to reiterate a number of the points that were made there. There are existing duties, such as those in the National Health Service Act 2006 on the Secretary of State and in the National Health Service (Wales) Act 2006 on Welsh Ministers, to secure improvement in the physical and mental health of people in the prevention, diagnosis and treatment of illness. There are also duties that provide for joint assessments between providers of health and community care services.

We believe strongly that the new clause would impose an additional duty in relation to mental health services that is not replicated for other patient groups such as cancer sufferers. Unfortunately, it would skew the priorities of the NHS in favour of one service at the expense of others. I am sure that were we to say that there should be specific assessments for mental health services, we would quickly find that other groups of patients such as those with coronary heart disease felt that they had been discriminated against.

However, if somebody requires an assessment to be detained under the 1983 Act, the assessment happens. That is the difference; because those circumstances involve detention, an assessment is required. The new clause suggests that there should be an assessment on every single occasion. I tell the hon. Member for Romsey that it will be up to clinicians to decide what further action should be taken if somebody presents with a particular problem, as they would with any other condition.

Sandra Gidley (Liberal Democrat, Romsey)

Does the Minister accept that cancer services are much more widely accessed and much easier to access than mental health services? I suspect that there have not been similar cases in the cancer service or any other physical health service whereby people have had to make a hundred phone calls or write a hundred letters and received no help at all.

Rosie Winterton (Labour, Doncaster Central)

The point of principle is whether to take one particular condition and create a difference from all other conditions in how an individual is assessed. Assessments will involve a small number of people deciding whether someone needs compulsory treatment, and I hope that it will be of some help if I say that when approved mental health professionals decide not to apply for detention, they should as a result of their assessment identify any further action required and do whatever is necessary to implement it.

Tim Boswell (Conservative, Daventry)

This is a small point, but it may be important. The Minister said that that situation arose in cases of detention under the 1983 Act. We have just debated schedule 6 to this Bill, which will make changes to the 2005 Act on compulsory detention and the deprivation of liberty. Does she envisage that persons detained under the 2005 Act following the Bournewood case will be able to avail themselves of the services of an assessment?

Rosie Winterton (Labour, Doncaster Central)

As we discussed, there will be an independent assessor on the deprivation of liberty. The provision discussed relates to that, not to treatment.

The role of the approved mental health professional, when considering whether further treatment is necessary having made an assessment, will include referring on for a community care assessment and/or a health service assessment if appropriate. The draft illustrative code of practice provides specific guidance on that point, including that all persons involved—the patient and carers too, of course—should understand the alternatives to detention proposed by the AMHP.

With that explanation, I hope that the hon. Member for Romsey will seek leave to withdraw the motion.

Sandra Gidley (Liberal Democrat, Romsey)

I shall not detain the Committee longer. I beg to ask leave to withdraw the motion.

New Clause 5

John Pugh (Liberal Democrat, Southport)

I beg to move, That the clause be read a Second time.

The new clause should prompt a brief but useful debate about physical restraint and its use within the mental health service. It is about the use of seclusion, other forms of behaviour management, mechanical restraint and other interventions managing disturbed behaviour and the removal of a patient from normal levels of association and freedom—in other words, locking them away or keeping them in some very controlled environment. The new clause endeavours to specify certain purposes for which that may be done, suggesting that there should be regulations defining the circumstances in which any form of intervention might be used; reporting requirements for the use of such interventions, which obviously at times involve quite fraught methods of physical restraint; a review of such interventions, to find out how common they are; scrutiny of their use; and also a record of the circumstances under which patients subject to interventions are visited.

This is really the most troublesome of all ends of mental health care. More than 35 years ago, I think, I had my only experience of showing somebody into what was then a padded cell, in an old-fashioned, locked refractory ward. Even today I remember the episode very vividly. The individual was terribly distressed, standing out from all the other patients in many ways, and many of the patients were in a very severe state indeed. He was routinely excluded. He seemed to have some sort of immunity to drugs like Stelazine, the psychoactive then available. Therefore, he lived in a deeply troubled world, tortured by hallucinations. To this day I wonder what on earth could have happened to him.

My point is about what was done to him, however, which was not by and large therapy, but an act of therapeutic desperation. The only alternative was to over-sedate him, which is equally undesirable. Given that that is what happens in such extreme—I accept that it is quite rare—circumstances, it is entirely appropriate for us to have reports, reviews, scrutiny and a visit in order to minimise such episodes, because more sophisticated interventions might be able to prevent some cases happening. I accept that in modern medicine this procedure is rarely used and that there are alternatives. The more normal form would not be physical restraint, but some injection—forcibly delivered into the backside in all probability. Insofar as this happens at all, we need to record and regulate it as a precursor to minimising it.

Rosie Winterton (Labour, Doncaster Central)

The new clause certainly raises an important issue. I appreciate the concerns that exist around the use of interventions such as seclusion and mechanical restraint in managing disturbed behaviour. I know that the subject concerns my hon. Friend the Member for Norwich, North as well, obviously because of the very distressing case of Rocky Bennett and the following inquiry.

Many issues have come to the Government’s attention in the past few years. I can assure the Committee that we share the common objective of ensuring that there is no inappropriate use of seclusion, restraint or similar interventions. We want to see such measures taken only when they are essential and used properly, and that patients have adequate safeguards.

However, I must tell the hon. Member for Southport that new clause 5 is not the best way in which to address those concerns. It would not be practical to define in regulations all the situations in which disturbed behaviour may need to be managed and the range of techniques that may be used and it would limit the ability of staff to respond flexibly to the wide range of situations that they may face. There are circumstances in which restraint will be the only action available to make a dangerous situation safe. Also, regulations run the risk of inhibiting the development of new and improved techniques for managing difficult behaviour. We have to be careful not to do that.

The management of disturbed behaviour and the techniques involved are not regulated specifically by the Mental Health Act, but they are subject to general criminal and public law, including the Human Rights Act 1998. They are also subject to the professional duties and obligations of the practitioners involved. We have reflected the 2004 guidance from the National Institute for Mental Health in England in the code of practice, which also advises adherence to the National Institute for Health and Clinical Excellence guidelines, which were issued in 2005. That guidance addresses the issue of the management of aggression and violence, including restraint.

The Healthcare Commission and the Health Inspectorate Wales will be mindful of the guidance when they visit hospital units—they would wish to be satisfied that it is being followed.

Tim Boswell (Conservative, Daventry)

I am following the Minister’s argument with quite a lot of sympathy. I understand the case for flexibility and the difficulty of covering everything in regulations. There was a trainee in a secure training centre in my constituency who sadly died. A restraint lock was used on him, in accordance with Home Office guidelines, but he collapsed and died. We need not expand on that now. Does the Minister agree that it is terribly important that less invasive and aggressive techniques are developed and brought forward and communicated as best practice as soon as possible? The fact that we have set guidance in the past, perhaps because a practice was acceptable at the time, does not mean that we so much as tacitly accept that it is the way forward. As soon as we know a better way, we should avoid old practices.

Rosie Winterton (Labour, Doncaster Central)

The hon. Gentleman is absolutely right. One of the reasons why we do not want to accept the new clause is that the spreading of best practice in the way in which he described might be hampered. Hospital managers also have responsibilities for best practice. They should regularly review the use of seclusion. Providers should have clear written policies on the use of restraint, which should include provision for review and for the application of restraint to be audited and reported to hospital managers.

The “Count Me In” census collects and publishes information about periods of seclusion during an in-patient’s stay in hospital. It also records incidents of hands-on restraint, which it defines as the physical restraint of an in-patient by one or more members of staff in response to aggressive behaviour or resistance to treatment.

We will, however, consider how information on the use of seclusion and restraint may be reported to the new regulator for England. That will also be a matter for Welsh Ministers, and it will be an important step forward. The guidance on seclusion and restraint has been revised and updated during preparation of the draft illustrative code of practice for England to accompany the Bill, and it will be further developed in the new code, on which consultation will take place.

The Government completely understand the concerns that underlie the new clause, but we oppose it for the reasons that I have stated. I can give a commitment to hon. Members that we shall continue to work to ensure that restraint and seclusion are used only when they are essential.

John Pugh (Liberal Democrat, Southport)

I thank the Minister for that enlightenment and range of assurances. I beg leave to withdraw the motion.

New Clause 18

Ann Coffey (Labour, Stockport)

I beg to move, That the clause be read a Second time.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss

New clause 19—Responsibility for conveyance to hospital

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

(2) In Section 11(2) after “sought”, insert “or in the case of a National Health Service patient, to the NHS Trust responsible for hospital provision”.

(3) In Section 6(1) for “applicant, or any person authorised by the applicant” substitute “the body to which the application is addressed, or any person authorised by that body” and for “convey him to the hospital” substitute “convey him to the hospital identified by that body as being able to receive him.”’.

Ann Coffey (Labour, Stockport)

New clause 18 seeks to substitute, for section 140 in the 1983 Act, a new section that would give duties to primary care trusts and others in relation to the assessment, conveyance and admission of urgent cases. New clause 19 seeks to amend section 6(1) of the 1983 Act to move responsibility for finding a bed from the approved social worker or the new approved mental health practitioner to the hospital trust.

I thank the Minister for meeting me to discuss the proposed new clauses, and I thank the approved social worker leads’ network—particularly Claire Barcham of that organisation—for her excellent written submission which very clearly outlined, with examples, the practical difficulties that ASWs face in implementing their present duties in relation to emergency admissions from the community. Claire Barcham gave many examples of those difficulties, and I am sure that that has convinced members of the Committee of the strength of their arguments.

ASWs are involved in approximately 47,000 admissions each year, of which 27,000 are admissions from the community, so they know what they are talking about. The procedures for admitting people to hospital in an emergency are vital in achieving the principles outlined in clause 10 of the Bill, about which there has been much discussion in the Committee and in the Lords, so it is important that we get them right. The principles set a standard, and we must ensure that those who will have the responsibility for implementing the Bill are not faced with the practical barriers that ASWs face at the moment.

The current sections 6 and 140 of the 1983 Act place a responsibility on health authorities to provide a bed, but because of the drafting of the provisions and the lack of local protocols, the task of finding a bed and of making arrangements for conveying people to hospital has in practice fallen to the approved social workers. The code of practice accompanying the 1983 Act has guidance that mentions local procedures, but it is clear from the written submission and from the examples that the code does not always work in practice.

Part of the problem, which is also the reason why the examples are anecdotal, is that there is no monitoring to check whether such protocols are in place locally and whether local health, police and social services authorities are co-operating with the protocols. Furthermore, protocols do not form part of any mental health services inspection. The result is that since introduction of the 1983 Act there has not been any pressure or lever to ensure that good local protocols are developed. We should not make the same mistake again.

Examples have been provided in the written submission by the approved social workers. I spent a day with a mental health assessment team in London to see for myself the practical difficulties that approved social workers face. It was interesting. While I was there, a request was made by the police for a mental health assessment on a man who had been arrested that morning after a neighbour had complained. He had already been in the cells for three hours. He had not yet been interviewed by the police because the police doctor did not feel able to say that he was fit for interview. For that reason, a request for a mental health assessment had been made.

Before the approved social worker could carry out the assessment, she had to find two doctors who could be present at the same time. She also had to arrange for a bed. By the time that we had arrived at the custody suite, the man had been in the cells for six hours. It was decided that he did not need to be admitted to hospital as an emergency, and I expect that he spent several more hours in the cells while being interviewed with his solicitor. Such an event showed me how practical things on the ground must work if the high-level objectives set out in the Bill are to be achieved.

I take the point that police cells are not necessarily safe places, but the man had waited for three hours in what was a safe place for him. If that man had been in his flat and had not been arrested by the police at 8.30 that morning and a request had been made for a mental health assessment because of his bizarre behaviour, the approved social worker could well have had to arrange for doctors to go the flat to assess him. The ASW could not have applied for him to be admitted to hospital because there was no bed. She would then have had to delay the assessment and rearrange the time for the doctors. She might have gone on the visit even though the doctors perhaps could not have come for several hours. She might have thought that, on balance, it was better to go out to the flat to do the assessment. She would have had to wait with a very distressed man or his carers, while arranging for a bed so that she could make the application. Alternatively, she could have taken him to a place of safety, which could have been a police cell or an accident and emergency unit at a hospital, neither of which are good places for someone in an unstable condition.

Additionally, when I left in the evening there were a further five requests on the approved social worker’s desk for a mental health assessment of people living in the community. They were judged to be a risk to others. They had a history of violent or abusive behaviour, so the approved social worker rightly was not prepared to see them without police support. The requests were on the desk because the approved social worker was waiting for the police to say when they could undertake a risk assessment.

The police carry out an assessment of how much of a risk they feel the person is to them. If they think that the risk is high, ironically the waiting time for police support might be longer because resources have to be provided, such as six policemen instead of one. It is not very easy to collate details to know how many such instances result from the community and 999 calls, arrests, assaults on the public, carers, neighbours or self-harm. However, the time between someone becoming concerned about a person’s behaviour and assessment of their condition must be the time of maximum risk.

The new clauses would put in place a duty to set up local protocols so that responsibility for making arrangements does not fall solely on the approved social worker or, in future, the approved mental health professional. They would ensure that, in future, admissions and conveyance to hospital took place according to a local protocol, with agreed time limits for responses, and that requests for assessments were not delayed unacceptably by inability to obtain police support.

There are other issues in relation to admission, such as accessing transport and ambulances. In new clause 19, the reason for moving the responsibility from the approved social worker to the hospital trust is to put pressure on PCTs to have in place proper commissioning arrangements for their beds. It is also an issue for age-appropriate treatment. Proper commissioning plans are needed to achieve that.

I knew that the Minister would have concerns about the new clauses, but I hope that she can reassure us that when the new code of practice is drawn up, there will be much stronger guidance about the local protocols that should be in place, including time limits for assessment and admissions.

Those protocols and any complaints by local bodies or authorities should be regarded as part of a local inspection of mental health services. That is the only way we can provide a lever to ensure that local protocols are drawn up. I hope that the Minister will also consider how the police can be involved in that, either through discussions with the Association of Chief Police Officers or as part of their responsibilities under local crime and disorder partnerships to ensure community safety. In discussions with officials about drawing up a stronger code of practice, I would request the Minister to involve the ASW leads network.

Rosie Winterton (Labour, Doncaster Central)

I was extremely grateful to my hon. Friend for giving such a vivid account of some of the problems that approved social workers face in the field, which she clearly experienced during her day on the front line. She explained clearly the issues that underlie the new clauses and responded to the problems that some approved social workers have experienced in getting ambulance, police and trust bed managers to co-operate in conveying and admitting patients to hospital. I sympathise with her concerns and thank her for bringing them to the attention of the Committee.

It is essential that local services are co-ordinated to ensure that patients are conveyed safely, efficiently and in the least distressing way for them and their family. That goes back to the discussions that we had this morning about places of safety. However, I have to tell my hon. Friend that we may not be able to solve such difficulties in primary legislation. She was right when she said that the arrangements for co-ordinating local services must be a matter for local decision. As a result of our meeting, I have had discussions with officials about what else we can do in that regard. We are considering issuing a circular to relevant bodies, such as local authorities, trusts and police authorities, stressing that it is their responsibility to ensure that local protocols are working. We are also considering how to amend the Mental Health Act codes of practice to make that responsibility clear.

As a result of my hon. Friend’s suggestion, I have asked for the ASW leads network to be represented on the steering group of an existing Government project that is co-ordinating health trusts, local authorities and emergency services, including police and ambulance services, to develop guidance on working together to manage people experiencing mental disorder. That guidance will cover the safe and efficient conveyance of patients to hospital.

Something else that I recall from the meeting and should like to consider further is the issue that my hon. Friend has just touched on, which is the extent to which we can encourage regulators and inspectors to examine local protocols and see whether they are working effectively. I wish to do some further work on that, although I cannot guarantee anything because regulators have a certain independence. It is certainly something that I can take away and look at.

As I have said, the issue is very important and we want to get it right. I hope that the way forward that I have suggested will be acceptable to my hon. Friend and that she will withdraw the motion.

Ann Coffey (Labour, Stockport)

I thank my right hon. Friend the Minister for her positive and appropriate response to the issues that I raised. I agree with her that protocols must be drawn up locally, and I am pleased that she is examining ways to tighten them through the code of practice and ensure that they are monitored and not simply ignored. On that basis, I beg to ask leave to withdraw the motion.

New Clause 22

James Duddridge (Conservative, Rochford and Southend East)

I beg to move, That the clause be read a Second time.

I thank my hon. Friend the Member for East Worthing and Shoreham for the opportunity to move the motion on the new clause, which would essentially give mental health patients the right to move hospital. It breaks down into three parts: a duty to inform the patient or their nearest relative of that right, a requirement to record when it is exercised and a request is made and a requirement of authorities to provide written reasons if a reasonable request is turned down. I wish to make three broad points: the first on choice, the second on why there is a need of a little additional bureaucracy and a little evidence, and the third considering the black and minority ethnic communities, who have inspired the new clause although it does not apply exclusively to them.

Choice is a buzz word in the NHS generally. For instance, non-mental health patients will have a choice of four hospitals by 2007 or 2008, which will be a much wider choice. In fact the NHS website states:

“You now have the right to choose.”

Well, that is not the case at the moment in mental health. The Institute for Public Policy Research, an organisation whose work I do not read in its entirety, has a paper called “Mental Health in the Mainstream”, which is very insightful. I quote from the IPPR’s “A Good Choice for Mental Health”, which states that

“despite different policy initiatives to promote greater user involvement in mental health, the choice agenda is yet to have a significant impact on people’s lives or experience of services”

in mental health. The Sainsbury Centre for Mental Health is similarly critical of the Government and states that choices should be offered to

“reflect the individual’s beliefs, values and preferences as well as clinical need”.

Indeed, it states:

“Appropriate information and advice should be available to empower people to make informed choices.”

I believe that that should be in the Bill, not in a code of practice. That would fit with Government policy, and I shall come to that point later when talking about the Bennett case. The Minister is looking confused, but I shall explain my rationale as to why I feel that that fits with the Government commitments made following the inquiry into the tragic death of David Bennett in 1998.

I turn to the point about extra bureaucracy, because I recognise that in another place there were criticisms of a similar amendment because of that. From my own experience, I know that going into a hospital is a frightening experience. It is difficult to listen to what a doctor or professional is saying, process the information and recall it. Somebody with a mental health problem has a lot more issues to deal with than someone with a simply physical disability. I feel that recording a request that has been made, and writing the reasons why it has been turned down if there is not good reason for a transfer, are worth that extra bureaucratic time.

The third point that I wish to make concerns the black and minority ethnic population. Lord Patel of Bradford raised this issue in another place. He said:

“It is not uncommon for a patient or relative to express a wish for a transfer between hospitals, whether this is to be nearer home or because of a preference for one hospital’s regime over another. We should be mindful that it is current government policy that prospective patients across the rest of the NHS should be encouraged to express choices in hospital care and that they should be acted on. If we cannot extend this agenda around choice to psychiatric patients, even in this limited way, we risk further excluding them and increasing the stigma of psychiatric treatment.”—[Official Report, House of Lords, 17 January 2007; Vol. 688, c. 751.]

That is particularly true for people in the black and ethnic minority communities.

The Government’s own Department of Health report “Race equality impact assessment” states that

“the effects of mental health legislation apply disproportionately to some BME groups.”

To pick four examples, in BME groups, more people are likely to be diagnosed as schizophrenic; to be sectioned under the 1983 Act; to be moved from open wards to closed wards; and to be given higher doses of medication. Given that the Commission for Racial Equality said that we should avoid all unlawful discrimination, it is important that the Government include a provision in the Bill. Although it is not certain that racism forms the totality of the difference, a reasonable person would believe, as I certainly do, that absolute racism forms part of the problem. Black Mental Health UK, which focuses on African and Caribbean communities, feels that this Bill is “unethical” and “unworkable”, and a missed opportunity for reforming the 1983 Act.

I hope that the Minister will accept the new clause. I see that she is looking positive. This is the first time I have moved such a motion on a new clause, and it would be gratefully appreciated if the right hon. Lady, not because of that, but because of the power of the argument, supported it.

Black Mental Health UK highlights a number of other problems, such as linguistic problems. More than 300 languages are spoken in London. There are problems of racial differences. If people are moved from urban centres—the evidence across the board is that ethnic and particularly black populations are largely in conurbations—to facilities in the countryside, not only is that a big change for them, as it would be for anyone, but the practitioners in the institutions are likely to have less cultural sensitivity and less personal experience of those various communities. There could be a very good reason why people in black and minority ethnic communities would much prefer to be transferred to areas of their preference.

As I said I would, I turn now to the David Bennett inquiry, following that gentleman’s tragic death. The independent inquest into David Bennett’s death said:

“All psychiatric patients and their families should be made aware that patients can apply to move from one hospital to another for good reason”—

these are almost exactly the same words as appear in the new clause—

“which would include such matters as easier access by their family, a greater ethnic mix, or a reasoned application to be treated by other doctors.”

The Minister will note that we have not gone into this long list of detail; I think that she would prefer that it went into a code of practice, so that the provisions are flexible. I hope that not including the full list in the Bill while nevertheless referring to these matters would give that degree of flexibility. The inquest went on to say that

“all such applications should be recorded”.

Again, the words are similar to those in the new clause. The inquest continued:

“They should not be refused without providing the applicant and their family with written reasons”,

Which is the third part of the new clause.

The reason why I think that Minister is likely to support the thrust of the new clause is that in delivering their report “Race equality and mental health care”, following the death of David Bennett, the Government said:

“We accept this in principle.”

All the points that I have gone through that have been mirrored in the new clause. They went on to say:

“Every such request should be considered carefully and receive a reasoned response that takes into account the needs of the service user and their assessed best interests. A BME patient’s wish to be closer to their family, or to be cared for in a more ethnically mixed environment, should be listened to, recorded and met unless there is a good reason not to meet it. It is good practice for refusal to be explained in writing.”

That is the Government saying exactly what is in the new clause, which is why I hope that the Minister will be minded to support it.

Charles Walker (Conservative, Broxbourne)

Thank you, Mr. Cook, for calling me to make a brief contribution. I am in a difficult position in following such an excellent speech by my hon. Friend, who made some important points about people’s right to apply to move to different hospitals. I am aware that the Government are looking to replace beds with greater community services, which may mean that the distance between areas or hospitals with beds will grow.

In a place with fewer beds, most might be occupied, creating a greater need to move people to a more far-flung location to give them the emergency treatment that they need. It is important, as with all illness, to have emotional and family support. If we must move people far from their homes to receive treatment in an emergency because a hospital more convenient to them and their family is full, we should consider at the earliest opportunity whether they wish to move back to a bed nearer to their family and friends, if that is in their interests, so that they can derive support from them.

It is also important that the convenience of clinicians should take second place to the patient’s interests. It might be more convenient for a clinician to put someone in a bed in a certain location, but if it is in the patient’s interests to be moved, we should be sensitive to their wishes. It therefore gives me great pleasure to support made by my hon. Friend the Member for Rochford and Southend, East.

Rosie Winterton (Labour, Doncaster Central)

The hon. Member for Rochford and Southend, East is very tempting—[Laughter.] He is particularly so as the virgin mover of a new clause. However, I am afraid that I might have to disappoint him, although I want to say straight away that I certainly understand his reasons for tabling the new clause. It would require the appropriate authority—I presume that the hon. Gentleman means the hospital managers—to establish a formal procedure to advise patients and their nearest relatives that a transfer to another hospital can be requested if there is good reason.

The new clause is similar to an amendment tabled in the other place, and it raises important issues of good practice. As the hon. Gentleman and the hon. Member for Broxbourne pointed out, it reflects one of the recommendations of the David Bennett inquiry. I accept the principle behind the recommendations, but I must again refer the Committee to the fact that it would be better to put them into the code of practice.

Ian Gibson (Labour, Norwich North)

As the Minister pointed out, I was fairly involved in the Rocky Bennett case, as it was in my constituency, and I met his sister, who had fought hard on the issues for some time. I seem to remember that the reason why racism reared its ugly head was that people took Rocky aside and sat on him and not the other person involved in the altercation, who happened to have a different skin colour. That was where people picked up on the idea that a racist element was involved.

Rosie Winterton (Labour, Doncaster Central)

My hon. Friend is quite right to say that that inflamed the situation. In our action plan, “Delivering race equality in mental health care”, which accompanied our response to the David Bennett inquiry, we certainly reinforced the message that all requests to transfer to another hospital should be carefully considered and receive a reasoned response. That should include such factors as a patient’s wish to be closer to his family or to be cared for in a more ethnically mixed environment.

As I said, it is not right for us to introduce the sort of prescribed process for transfer requests that would result from the new clause. Information is important, as the hon. Member for Rochford and Southend, East rightly said. However, we should look again at the code of practice; there should certainly be no objection to giving guidance in the new version of the code about the need to inform patients and their nearest relatives of the possibility of transferring to another hospital. We could look at whether all transfer requests should be recorded, and at whether written decisions should normally be recorded in response to all such requests.

It would also be possible to go a bit further than the new clause seeks to do. We could look at listing the sort of factors that hospital managers should take into account when deciding whether a transfer is appropriate. Particularly, in response to concerns raised by hon. Members regarding BME issues, we could emphasise more issues of cultural needs, for example. I would like to look at whether that can be done in the code of practice more effectively than it is at present, and I would certainly welcome any views that members of the Committee have on what we could say there. By doing that, we will be able to get across to hospital managers, perhaps more effectively than we could in legislation, the wide range of factors that might be relevant in deciding whether a patient should transfer to a different hospital.

Charles Walker (Conservative, Broxbourne)

Given the mental state of a patient and the possible lack of awareness of their family, will the Minister actually introduce measures to empower managers to say to families, ‘There could be a better solution than the one that we are currently offering you—a hospital nearer your home”? Under such an arrangement, instead of waiting to be asked, the managers would go and initiate a hospital move.

Rosie Winterton (Labour, Doncaster Central)

The hon. Gentleman makes a valid point about the need to talk to carers or family members, as appropriate. In particular, that is why it is good that we have enshrined in clause 10 the idea that that should certainly happen.

Although I accept that the new clause is well intentioned, I hope that my response to the hon. Member for Rochford and Southend, East gives him some reassurance that we take this matter seriously and will be looking at it in the code of practice.

James Duddridge (Conservative, Rochford and Southend East)

Given that this is my first foray into these matters, you will understand, Mr. Cook, that I am deeply disappointed. The Minister has let me down gently, however, and she made a number of reassuring points. I look forward to following the detail in the new code of practice. I beg to ask leave to withdraw the motion.

New Clause 27

Angela Browning (Conservative, Tiverton and Honiton)

I beg to move, That the clause be read a Second time.

The aim of new clause 27 is to amend section 40 of the Mental Capacity Act 2005 to ensure that the relevant bodies are required to appoint an independent mental capacity advocate if an attorney or deputy has been appointed solely to manage the property and financial affairs of the individual concerned and if there are no suitable family members to consult. In another place, on 29 January, Baroness Ashton indicated her agreement:

“I reassure your Lordships that deputies who have been appointed in a professional capacity purely for the purposes of property and affairs would not, under the Mental Capacity Act, have the authority of the court to take decisions which lie outside the scope of “property and affairs”. These deputies will not have the authority to help or represent a person where decisions are being considered concerning serious medical treatment, care moves or adult protection. Therefore, if no other family or friends are able to support and represent the person without capacity in making decisions on these issues, the person will be entitled to an independent mental capacity advocate.”—[Official Report, House of Lords, 29 January 2007; Vol. 689, c. 110.]

Paragraph 10.71 of the code of practice states:

“The Government is seeking to amend the Act, at the earliest opportunity, to ensure that, in such circumstances, an IMCA should always be appointed to represent the person’s views when they lack the capacity to make decisions relating to serious medical treatment or long-term accommodation moves.”

I understand that the Government are seeking to amend the 2005 Act on that matter at the earliest opportunity. This seems to be that earliest opportunity; I am disappointed that the Minister has not tabled a Government amendment and that I have had to table my new clause. I would be grateful if, as we discuss this final new clause, the Government gave a positive and glowingly supportive response.

Rosie Winterton (Labour, Doncaster Central)

The hon. Lady is extremely persuasive, and we shall return to the issue on Report. I cannot accept the new clause because we want to consider certain technical issues. However, we certainly wish to return to the matter and I can be encouraging and say that her case is convincing, as was that made in the other place. I hope that she will withdraw her new clause. I shall keep in very close touch with her about any amendment that we bring on Report.

Angela Browning (Conservative, Tiverton and Honiton)

I am absolutely delighted. The Making Decisions Alliance, which has done a lot of work on that aspect of the Bill, will be equally pleased at that positive response from the Minister. I beg to ask leave to withdraw the motion.

Rosie Winterton (Labour, Doncaster Central)

I am sorry, Mr. Cook; you look a bit disappointed at my rising. I want to give you immense thanks for the marvellous way in which you have controlled our proceedings. All Committee members would like to thank you, Lady Winterton—and Miss Begg, who chaired our proceedings on one occasion. The Committee has been very lively and generally good tempered.

Tim Loughton (Conservative, East Worthing and Shoreham)

Not always.

Rosie Winterton (Labour, Doncaster Central)

Mostly good tempered. I am upset that the hon. Member for Daventry is not here because I was reminiscing about his remarks on sex addiction. However, not only sex addiction, but the difference between chinchillas and scintillas was raised at some point in the proceedings, and this afternoon we have had the virgin amendments.

Seriously, I thank all members of the Committee for good, well-informed debates that have demonstrated the real interest of all parties in the issue.

Ian Gibson (Labour, Norwich North)

I, too, congratulate all three Chairs of the Committee. I am sure that there will be a further debate on the issue; it has not gone away for ever and the arguments will return. Any meetings that people have heard about next week remain a mystery to me. Obviously, all sorts of things go on in the ether while we are incarcerated in this room, but people should not believe what they see on their phones and text messages, as the illustrious Chairman pointed out.

Rosie Winterton (Labour, Doncaster Central)

I suspect that my hon. Friend might be referring to a meeting that has apparently been organised in his name for next week. I suggest that he takes up such things with the House authorities or the Speaker.

I put on record my appreciation of the large team of officials who have worked not only during proceedings on the Bill, but for the past nine years on this issue. Their patience is extraordinary and they have done a good job. I hope that all hon. Members will join me in saying how professional the officials have been. [Hon. Members: “ Hear, hear.”] They have been more than willing to talk to Opposition and Labour Members about issues relating to the Bill. I also thank the Clerks to the Committee and everyone else who has assisted us in our considerations. I am sure that members of the public in the Gallery, who have sat gallantly through the proceedings, will agree that, although there have been disagreements, some of which remain, we have had thoughtful debates on a wide range of issues.

I particularly thank Labour Members for their rapt attention—they have been marvellous. Of course, I also thank our Whip, who has tried to ensure that we progressed gently through our discussions and, where necessary, examined the Bill in detail while ensuring that we got to the end having properly considered all hon. Members’ amendments. I thank everyone who submitted memorandums to the Committee and the Opposition spokespeople who have made some constructive comments that I hope have been useful in clarifying public understanding of the Bill.

It has been an honour and a privilege to serve on the Committee, under your chairmanship, Mr. Cook, and that of Lady Winterton and Miss Begg. I am grateful for all the support that we have been given.

Tim Loughton (Conservative, East Worthing and Shoreham)

Allow me to tantalise your indifference for a new more seconds, Mr. Cook, following the Minister’s Oscar performance. I echo her thanks to you, to Lady Winterton and to Miss Begg for chairing this difficult and complicated Committee during the past three and a half weeks. It is particularly important to thank you for the additional work that you have had to undertake in vetting no fewer than 70 submissions that will form part of the record. Written submissions are part of the new format Committee procedure, and this is the first such Committee of which I have been a member. A lot of extra work is involved for hon. Members in reading the submissions and for yourself in reviewing them beforehand. The task has been done exceedingly effectively, and the swiftness with which you have dealt with them so that they could be scrutinised is greatly appreciated.

I offer the Opposition’s thanks to the Clerk, who has been extremely helpful in scrutinising some of our amendments, and who has made some helpful suggestions as to which might be looked upon more favourably by you, Mr. Cook. Dr. Benger has been of great assistance in that. I thank my hon. Friends—particularly the hon. Members for Tiverton and Honiton and for Daventry, who, in the nicest possible way, are old lags when it comes to Committee work. With their Mental Capacity Act hats on they have brought enormous expertise to the Committee. My thanks are also due to my hon. Friend the often highly animated Member for Broxbourne, who has put his interest in mental health to good effect in the Committee, and to my hon. Friend the Member for Rochford and Southend, East, who is now no longer a new clause virgin and who tempted the Minister but was ultimately let down, disappointed and spat out by her. What a metaphor that is for the relationship between the Government and the electorate at the moment.

Nevertheless, it has been good to have the engagement of the Labour members, all but one of whom contributed to our proceedings. They have brought a great deal of expertise and experience to our deliberations. The subject of the Bill is one in which we all have a genuine interest, and Labour members share many of our concerns. It was interesting to see that they all—without exception—turned out to be Government loyalists who voted for the Government, such was either the power of persuasion of the Minister or the knowledge that the prospect of a reshuffle under the forthcoming new regime is looming, perhaps.

I also thank the Hansard writers, who are probably going absolutely berserk.

Finally, we are all greatly looking forward to the various audiences with Rosie that have been promised. No doubt that Jean and Ruth and Mary and the various other imaginary characters that the Minister has conjured up during our deliberations will also be invited.

We have had an interesting experience. I fear and hope that this will not be the last that we hear of the Bill because many contentious decisions have been taken that many of our colleagues both in this and in another place will seek to overturn at the appropriate time.

John Pugh (Liberal Democrat, Southport)

May I echo the sentiments that have been expressed? I thank you, Mr. Cook, the Clerks and everybody who assisted in making the Committee the rational basis for discourse that it has been. We have achieved something. We lowered the temperature of the debate, which has been helpful because it was about a difficult subject. We have probed all of the key areas, which was important because none of us wants the legislation to be decided by parliamentary ping-pong.

If at the end of the day the battle lines are a little blurred and alliances have shifted, fundamentally, that will not be a problem for the sufferers. They are the main aim of the legislation, not our various campaigns and positions.

On a personal note, I mentioned last Thursday a constituent of mine whose letters —he wrote to me regularly concerning all sorts of issues—reflected his mild paranoia. I said last Thursday that I was stalked by that individual, and that he would be in my weekend surgery. I could not see him because I did not have time—I was talking to an Afghan chieftain, as one does.

Ian Gibson (Labour, Norwich North)

In Stockport?

John Pugh (Liberal Democrat, Southport)

Indeed so.

I have with me here the contents my constituent sent to my letter box over a period of one and a half weeks. On serious reflection, here is a person, one of a hundred or probably thousands, who is completely bypassed by the legislation that we have been talking about. Such people are not bad enough to be sectioned, but they are not insightful enough to seek any help. They are not covered by any provision or legislation. Our debate has been constructive and forward-looking, but there is an enormous task to be done apropos mental health that has nothing to do with the Bill.