House of Commons Hansard Debates for 26 Oct 1995

Hansard

Archives

Research

HOC Publications

Lord James Douglas-Hamilton: The amendments provide for communication with an intimation to informal carers and, in certain circumstances, the nearest relative. They are proposed in response to representations made in Committee.

The amendments provide that those who give informal care to the patient are informed of the various stages of the community care order--its making, renewal or revocation, variation of its conditions, a change of special medical officer or aftercare officer or a reassessment in hospital. That is a direct response to an amendment tabled by the hon. Member for Dundee, East.

The amendments also enable the responsible medical officer, the special medical officer or the aftercare officer, as appropriate, to consult at the various stages with the patient's nearest relative when a patient has a history of violence despite the patient's objections. The right to override the patient's wish would allow those caring for the patient to obtain information from the nearest relative, which might be essential to an assessment of the risk that the patient poses to himself or others. This is in the light of an amendment to the English provisions sponsored by

Column 1175

the National Schizophrenia Fellowship and proposed by the hon. Member for Wakefield (Mr. Hinchliffe). I am glad to incorporate them in the Bill.

Mr. McAllion: I am grateful to the Minister for tabling the amendments--I wish only that he would be as responsive and flexible in dealing with other matters that we raise with him.

Amendment agreed to.

Amendments made: No. 26, in page 20, line 13, after `(3)(a)' insert `or (3A)'.

No. 27, in page 20, line 48, at end insert--

`(3A) If the patient has a propensity to violent or dangerous behaviour the responsible medical officer may consult the patient's nearest relative notwithstanding any objection by the patient to such consultation under subsection (3)(a) above.'.-- [Lord James Douglas-Hamilton.]

5.15 pm

Mr. McAllion: I beg to move amendment No. 12, in page 22, line 21, after `force;', insert--

`(iv) the views of the patient and his or her carers as to such matters, as disclosed to the person making the application for the community care order during consultation;'.

The amendment would ensure that the person making the report under an application for a community care order must inform the sheriff about the discussions that he or she has had with the patient and with his or her carers. We believe that it is important that the sheriff should understand any problems with the community care order that either the patient or his carers may have. The responsible medical officer will have consulted both before making the application, and the amendment requires him merely to report on those discussions.

Although the patient has the right to attend the hearing, there is a real possibility that in many cases he or she may be too ill to attend or may be intimidated by the process. The amendment would be an additional safeguard to ensure that his or her views are taken into account.

Lord James Douglas-Hamilton: The amendment would introduce a requirement that the aftercare officer's report accompanying the application should include the views of the patient and his carers about the proposed order. As drafted, it would be the patient's views, as disclosed to the responsible medical officer.

I must point out that the Bill requires that patient and carers are consulted by the responsible medical officer before the application is made. The application should reflect the views of those consulted, and guidance will be issued by us. As I am sure the House is also aware, the proposed new clause 35A(2) attracts the provision of section 113 of the Mental Health (Scotland) Act 1984 to the application of a community care order. That means that the patient must be given the opportunity to be heard by the sheriff, either in person or through a representative.

I hope that the House will agree that an interested and vociferous patient probably will wish to attend the hearing, and that is the best safeguard. We take the view that a patient who is so ill as to be unable to attend the court hearing should probably not be considered for a community care order. In such circumstances, the patient should be cared for in hospital.

I accept that a patient may choose not to attend the hearing, and we shall use guidance to underline the importance to the application of the views of those

Column 1176

consulted and to make it clear to the various professionals involved that patients should be encouraged to attend or be represented at such hearings. Given those assurances, I ask the hon. Gentleman to withdraw the amendment.

Mr. McAllion: In view of the Minister's assurances about guidance, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 28, in page 22, line 33, at end insert `or (3A)'.

No. 29, in page 23, line 18, at end insert--

No. 30, in page 23, line 20, after `above' insert

`and any consultation under subsection (3A) above'.

No. 31, in page 23, line 29, after `(3)(b)(i)' insert `or (iv) or (3A)'.

No. 32, in page 23, line 36, leave out from `of' to `of' in line 38 and insert

`references to subsections (3)(b)(i) and (3A) of this section for the references to subsections (3)(a) and (3A)'.

No. 33, in page 24, line 7, at end insert--

`(1A) If the patient has a propensity to violent or dangerous behaviour the special medical officer may consult the patient's nearest relative notwithstanding any objection by the patient to such consultation under subsection (1)(a) above.'.

No. 34, in page 24, line 13, after `(1)(a)' insert `or (1A)'. No. 35, in page 24, line 31, after `(1)(a)' insert `or (e) or (1A)'.

No. 36, in page 24, line 37, leave out from `of' to `of' in line 39 and insert

`references to subsections (1)(a) and (1A) of this section for the references to subsections (3)(a) and (3A)'.

No. 37, in page 25, line 43, at end insert--

`(4A) If the patient has a propensity to violent or dangerous behaviour the special medical officer or, as the case may be, the after-care officer may consult the patient's nearest relative notwithstanding any objection by the patient to such consultation under subsection (3)(a) or, as the case may be, (4)(a) above.'. No. 38, in page 25, line 51, after `(a)' insert `or (e)'. No. 39, in page 25, line 52, at end insert `or subsection (4A) above'.

No. 40, in page 27, line 16, at end insert--

`(2A) If the patient has a propensity to violent or dangerous behaviour the special medical officer may consult the patient's nearest relative notwithstanding any objection by the patient to such consultation under subsection (2)(a) above.'.

No. 41, in page 27, line 45, after `(2)(a)' insert `or (e) or (2A)'.

No. 42, in page 29, line 28, after `officer' insert

`, any person falling within subsection (2)(e) below'.

No. 43, in page 29, line 43, at end insert--

No. 44, in page 30, line 4, leave out from second `the' to end of line 6 and insert

`persons mentioned in subsection (4) below of the revocation. (4) The persons to be notified under subsection (3) above are--

Column 1177

(a) the patient and (if practicable) his nearest relative; (b) the patient's special medical officer;

(d) any person who the Mental Welfare Commission believes plays a substantial part in the care of the patient but is not professionally concerned with the after-care services provided for the patient under section 8 of this Act.'.-- [Lord James Douglas-Hamilton.]

Schedule 1

After-care Under Supervision: Supplementary

Ms Jowell: I beg to move amendment No. 48, in page 41, line 32, at end insert--

`Mental Health Act Commission

16A. In section 121 of the Mental Health Act 1983, in subsection (4) leave out from the word "the" on the fifth occasion where it occurs to the end of the subsection and insert--

"(a) the exercise of the powers and the discharge of the duties conferred or imposed by this Act so far as relating to patients received into guardianship or after-care under supervision under this Act; and

(b) the care and treatment, or any aspect of the care and treatment in hospitals and mental nursing homes of patients who are not liable to be detained.".'.

The amendment would modify the Secretary of State's powers to extend the remit of the Mental Health Act Commission. It would not require him to extend its responsibilities, but would allow him specifically to require the commission to have a responsibility towards patients who are placed in aftercare subject to supervision and who are received into guardianship. There are ample reasons to believe that the commission should have responsibility for protecting the interests of patients in the community as much as those of patients in hospital.

First, we have seen from recent reports what can be the tragic and catastrophic consequences of neglect, maladministration and the incompetent care of patients living at home. Is the Minister not prepared to see the connection between the poor standards of care and services that those independent investigations have revealed and the absence of any standing body of experts with legal powers to investigate complaints of poor care?

Secondly, the new legal powers are likely to affect not a handful of patients but as many as 3,000 at any one time. If, as may be predicted, certain patients remain under supervision for long or indefinite periods, the total will rise well beyond that number. If the Minister justifies the policy behind the Bill by observing that care and treatment has shifted from hospital to the community, the logic of that argument should mean that patients in the community, especially those subject to legal powers, should have the same protection as that afforded to those in hospital.

The third justification for the change is that the commission itself wants this added responsibility because it believes it to be necessary, not simply desirable. It is necessary because the Bill introduces new coercive powers, and the use of those powers should be overseen by an independent body with powers to investigate complaints from patients or from carers. It is one of the important checks and balances that make the difference between law that is fair and law that is unfair.

Column 1178

We know that the Government have no principled objection to such a role for the commission, since in Scotland they are to extend the role of the Mental Welfare Commission to patients subject to community care orders. It is not enough for the Minister simply to distinguish Scottish law from that in England, and to use that as justification for a different approach. We can well imagine how his objections to the amendment would be regarded by those who may be among the 3,000 patients subject to new powers, desperately needing the assistance of the Mental Health Act Commission.

In Committee and today, Opposition Members have drawn attention to the flaws of the drafting and procedure of the Bill. We are most concerned that, in practice, the powers may be used unfairly, often to support poor practice and defensive and unimaginative styles of working, rather than humane and effective care. In our view, such concerns provide all the more reason why the commission should have responsibility from the outset for monitoring the way in which the Act is used--not from a distance, but by being able to receive and consider complaints from patients and others acting on their behalf.

Mr. David Atkinson: While I have no objection to what is proposed in paragraph (a) of the amendment, I must question whether the Opposition have considered the consequences and especially the cost of what is proposed in paragraph (b), which extends the remit of the 1983 Act to all patients, not only those who are detained under the Act. That must be at the expense of the patients to whom the Act applies. We are all aware of the challenges before the commission at present, in fulfilling its responsibility to patients who are detained, let alone extending the scope of the Act to those who are not.

The amendment is not any substitute for what is needed now: a complete review of the 1983 Act, which is now 13 years old. I do not think that the amendment is the way forward.

Mr. Bowis: I am grateful to my hon. Friend for his last point. Indeed, we have said on occasions that in due course we shall consider that.

I am grateful to the hon. Lady for tabling the amendment, which raises a debate that we had at some length in Committee and in another place. Before even a permissive power is taken, the full implications need to be properly thought through, and proper consultation should take place. On that basis, it would not be right to accept the amendment.

I base my view on three factors. The first relates to the priorities for the use of the commission's resources. The commission was set up expressly to safeguard the interests of detained patients. Having been deprived of their liberty, they have a particular claim on the commission's protection. Any extension of its remit to other groups, whether now or in the future, must not be at its expense. The second reason is connected with the fundamental changes that the commission is already facing. The commission is undergoing a major reorganisation of its structure and approach to its current remit, and that needs to be allowed to settle before an extension can be considered. Thirdly, it would make more sense to consider the commission's remit in relation to the operation of the Act, as my hon. Friend the Member for Bournemouth, East (Mr. Atkinson) is also suggesting. We shall want to

Column 1179

consider that in due course, when it is possible to assess the impact of supervised discharge in the context of all the other initiatives that we have taken on the care of severely mentally ill people.

That does not mean that in the meantime the Mental Health Act Commission will have no locus at all in reviewing the use of the new power. Given its general responsibility to protect the rights of patients who are liable to be detained, it will be able to review the procedures for making a supervision application, since the patient at that point must be liable to be detained. The commission's involvement will be similar to its monitoring of section 117 aftercare procedures before a patient is discharged. The extension of the commission's remit in that area is certainly not ruled out for all time, but now is not the right time to be considering it. In the light of that, I hope that the hon. Lady will withdraw the amendment.

Ms Jowell: I add only to my opening remarks concerning the conclusion reached by the Mental Health Act Commission. In its public policy statement on the Bill, it said:

"Without some extension to the remit of the Commission to enable it to monitor the use of the new powers, and to ensure that the new statutory controls are only used strictly in accordance with statutory requirements, it considers both patients and community may not derive the full benefit from its provisions."

I listened very carefully to what the Minister said and welcomed his rather veiled undertaking to ensure that the commission keeps those matters under review. The hon. Member for Bournemouth, East (Mr. Atkinson) knows that Opposition Members have long called for a comprehensive review of the Mental Health Act 1983 for the reasons that he outlined. We remain committed to that review and, from what the Minister said, it sounded as if he was at last being persuaded of the need for it.

In the light of the Minister's rather tentative assurances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Order for Third Reading read.

Motion made, and Question proposed, That the Bill be now read the Third time.--[ Mr. Bowis. ]

5.26 pm

Mr. Nicholas Brown: The Bill was primarily motivated by the public concern about the plight of people with serious mental illness who are discharged into the community. The plight of such patients has been highlighted by a series of terrible incidents, a disturbing number of which have resulted in fatalities.

Stephen Laudat stabbed and killed a man in 1994, only eight months after being discharged from a psychiatric department. Jason Mitchell was discharged by consultants and within days had killed his father and an elderly couple--also in 1994. John Rous, a paranoid schizophrenic, killed an untrained volunteer hostel worker, Jonathan Newby, in Oxford in 1993. Christopher Clunis, a patient who had been in and out of psychiatric and social services care for most of his life, stabbed and killed Jonathan Zito on the London underground in 1992. Peter Robak, suffering from a severe personality disorder, killed Anthony and Barbara Rawlings and their 15-year -old son just 11 days after being discharged from hospital in 1990.

Column 1180

Those cases show the dangers that are posed to members of the public by a very small number of severely mentally ill people who develop serious personality disorders. We are united with the Government in wanting to see better care for such patients and better protection for the public. The inquiries and reports that followed the tragedies tell us what action could have been taken to prevent the killings. They also make a number of clear recommendations concerning the implementation of the policy of caring for mentally ill patients in the community.

The literature is plentiful: the Ritchie report on the care and treatment of Christopher Clunis; the Royal College of Psychiatrists' Boyd report on homicides and suicides among the mentally ill; the Audit Commission's report "Finding a Place"; "The Falling Shadow", a report by Louis Blom- Cooper and others into the events surrounding the killing of Georgina Robinson; and the 1994 report of the Select Committee on Health into community care for people with serious mental illness.

In each case, the authors point to the same problems: lack of liaison among care agencies, and lack of resources to provide care and treatment in psychiatric departments and in the community, which is particularly serious in deprived inner-city areas. There have also been failures to act on warning signals, sometimes with terrible and tragic results. Every report recommends improvement in those areas as a top priority.

Those are the recommendations that the House should consider, and upon which the Government should have acted when they drafted the Bill. They are recommendations which, if taken up, would both provide better care for severely mentally ill patients and allay public concern about safety.

However, the Government have ignored the recommendations. Instead of listening to expert opinion and learning from the mistakes of the past, they have succeeded in drafting a Bill that misses the point, is unpopular with those who work in mental health and will do nothing to improve patient care. Indeed, it could well make matters worse. The Bill fails to take the action desperately needed to improve the care provided for the small proportion of severely mentally ill patients who pose a potential danger to themselves or to members of the public.

A new concept of supervised discharge is the central proposal in the Bill. Supervision orders are to be made in respect of a patient who would represent

"a substantial risk of serious harm"

to himself or herself or to others. A supervision order will last initially for six months, and subsequently for periods of a year at a time.

As part of an agreed aftercare programme, people under supervision may be required to reside at a specific place or to attend for occupation, education or training. A supervisor, who must be a person professionally involved in the patient's care, will be appointed to monitor the supervision order.

Many people will hear that and think it a good idea. Some patients need extra support and attention while recovering from treatment for serious mental illness, especially if they have a tendency not to comply with their care programme. But such a form of aftercare supervision already exists, and it is known as a guardianship order.

Column 1181

Many people who work in mental health community care are at a loss to understand the need for a completely new order when the existing power of guardianship offers an almost identical provision. Although it is used rarely, perhaps because of the strain that it puts on scarce resources, guardianship is effective in the small number of cases in which some form of statutory supervision is required. It facilitates community care, while offering protection to the patient.

The key difference between a guardianship order and the proposed supervision order is contained in the Bill's most controversial and most strongly opposed proposal--the power to take and convey. The need for a power to convey a person under supervision to a place of treatment, training, education or residence specified under the terms of the supervision order is highly questionable. I do not understand how such a power, which may be exercised by anyone nominated by the patient's supervisor, is appropriate to a co-operative and humane approach to community care.

If the power is exercised against a patient's will, it is highly unlikely to encourage compliance with his or her treatment plan. There is also a danger that the coercive elements of the new arrangements will compromise the important relationship of trust that should exist between patients and carers. It is important to emphasise the fact that one cannot care for people in a community environment without some consent and trust between the person being supervised and the supervisor.

The power to take and convey has been opposed by many groups and organisations, including the Law Society, the Association of Community Health Councils for England and Wales, MIND, the British Association of Social Workers, the Mental Health Foundation, the Community Psychiatric Nurses Association, SANE, the Royal College of Nursing, Unison, Survivors Speak Out and Liberty.

In Committee, the Minister failed to make the case for the power to take and convey, and several hon. Members have shown their opposition to it by signing early-day motion 1487. The power constitutes a significant erosion of civil liberties, with no conceivable benefit to patients.

The Bill allows the patient's supervisor to nominate any other person or agency to take and convey the patient. The supervisor does not have to obtain any additional authority before delegating the power. The application of the existing provisions for "arrest" laid down in sections 6 and 137 of the Mental Health Act 1983 is subject to strict criteria and numerous safeguards made clear in the code of practice. That code contains guidelines for best practice and sets out the rights of patients, and the responsibilities of care professionals to safeguard those rights-- safeguards that are absent from the Bill as it stands.

We had hoped that the Minister would accept the widening of the remit of the Mental Health Act Commission to include patients receiving after-care under supervision. That would have reduced the likelihood of the power to take and convey being abused, or used to reinforce worst rather than best practice. The idea was backed by the Royal College of Psychiatrists, the Law Society, MIND and a range of other organisations, including the commission itself, so it is disappointing that the Minister has rejected it.

Column 1182

The Minister has not been consistent about how the power will work. In another place Baroness Cumberlege said:

"Clearly this power to convey would be used only in times of emergency."-- [ Official Report, House of Lords , 4 April 1995; Vol. 563, c. 156.]

That begs two questions. What constitutes an emergency? And what kinds of emergency does the Minister believe are not already covered by sections 6 and 137 of the 1983 Act?

The Minister suggested that the power would be used in different circumstances. He told the Committee:

"We are providing for a reserve power, as it were, which would be available to the supervisor of that small group of vulnerable and sometimes unpredictable patients, in order to overcome a temporary unwillingness to co-operate."--[ Official Report, Standing Committee F , 6 July 1995; c. 94.]

Baroness Cumberlege said that the power would be used only in emergencies, yet the Minister said that it would be used to overcome temporary unwillingness to co-operate. The two sets of circumstances are different. So nobody will know how or when the power is to be exercised. Perhaps in this final stage, before the Bill reaches the statute book, the Minister will be able to dispel the confusion and make a final and authoritative statement on when the Government intend the power to take and convey to be exercised.

It is all the more important that the Minister makes such a statement, because the Bill is silent about what will happen once the patient has been taken and conveyed to the specified place. It appears that he cannot be forced to stay there against his will, and it is difficult to see how an unwilling patient, who has probably been further aggravated by being taken and conveyed, can be forced to take part in occupation, education, training, or whatever else he is supposed to do.

The threat will undermine the relationship of trust that must exist between carer and patient. My hon. Friend the Member for Dulwich (Ms Jowell) referred to the views of the registrar of the Royal College of Psychiatrists, Professor Chris Thomson. In an article in the British Medical Journal, Dr. Nigel Eastman, the head of forensic psychiatry at St. George's medical school, expressed even stronger reservations about the power to take and convey:

"A highly detrimental therapeutic effect is likely to arise from community psychiatric nurses forcing unwilling patients into their cars and taking them to day centres or hospitals where they are then asked to take treatment that they have (presumably) already refused."

We believe that the proposition is unworkable.

In introducing the Bill, the Government have acknowledged that community care for the seriously mentally ill is not working effectively. We are united on that point. However, they have not realised the scale of the problem, nor identified the solutions correctly. Coercion is not a substitute for co-ordination and co-operation. Statutory powers are no substitute for well-resourced and focused community care. As a consequence, the Bill will not achieve in practice what it sets out to achieve.

5.39 pm

Next Section

Home Page