AFTER-CARE UNDER SUPERVISION

HC Deb 26 October 1995 vol 264 cc1158-68

Mr. Archy Kirkwood (Roxburgh and Berwickshire)

I beg to move amendment No. 1, in page 2, line 25, at end insert— '(7A) If, on the date when a patient ceases to be liable to be detained in a hospital under this Part of this Act, a supervision application has been made in respect of him but the Health Authority have not yet accepted the application, his liability to be so detained shall continue—

1. (a) until the end of the period of three months commencing with that date, or
2. (b) until the Authority either accept or refuse the application whichever is the earlier.'.

The amendment aims to press the Government to reconsider the issue with which it deals, which has run through the proceedings on the Bill all the way through from the House of Lords.

As a Scottish Member, I am entitled to ask the Government to reconsider because clause 4(1), which inserts a section 35A(6) into the Mental Health (Scotland) Act 1984, makes Scottish provisions precisely like those in the amendment. Briefly stated, the objective of the amendment is to prevent patients from being able to walk straight out of hospital just when attempts are being made to arrange their supervised discharge. That is balanced by providing that patients can be detained for only three months so that they cannot be detained for an indeterminate or excessive period.

The amendment is supported by experience especially in respect of the treatment of schizophrenics. I fully understand the Government's problem in getting the legislative balance right in dealing with schizophrenia, which can cause people to be so ill that they act completely irrationally, as opposed to what I might call normal mental illness. It is difficult to legislate for both sets of patients.

I understand, too, that there are potential civil liberties arguments, as there always are when we deny people their liberty, even for a determined period of three months. I am not persuaded by the Government's position as stated by the Minister in the other place at the beginning of the Bill's passage, when it was suggested that there would be a gap in the procedure. The Government seemed to accept that there would be a gap and took the view that the patient would be much more likely to stay as a voluntary patient in those circumstances. I wish that I had that confidence. Some schizophrenic patients—perhaps only a small number—might simply go walkabout, which would disrupt the after-care package being put in place.

I hate to be superior, but we tend to do things better in Scotland. If the provision is good enough for Scotland, why should not it be in the English part of the Bill?

Mr. David Atkinson (Bournemouth, East)

I hope that my hon. Friend the Minister will respond positively to the amendment because the Bill presupposes that all the appropriate accommodation and after-care arrangements for the patient will have been put in place by the time his or her detention period is over and that, if they have not, the patient will accept a continuation of his detention voluntarily until they have. As the National Schizophrenia Fellowship has repeatedly pointed out, that flies in the face of experience and reality. Appropriate accommodation is not always in place, sometimes for the best of reasons.

Nevertheless, patients can walk out, claiming their rights under the Bill, and then disappear through the safety net. That is of great concern to us. The National Schizophrenia Fellowship has suggested that it is better to keep the stable door bolted until we can be assured that proper after-care and accommodation are in place before the release of patients. I hope that my hon. Friend will respond positively to the amendment.

Mr. Bowis

I am grateful to the hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood) for raising this issue and to my hon. Friend the Member for Bournemouth, East (Mr. Atkinson) for bringing the expertise of the National Schizophrenia Fellowship to bear on this point. I hope that I can fill the gap for the hon. Gentleman and, in so doing, reply positively to my hon. Friend.

As the hon. Gentleman said, the amendment was tabled in the light of the Scottish provisions, under which the sheriff may defer the making of a community care order until he is satisfied about the after-care and medical services to be provided. That reflects the concern, which has been expressed on both sides of the House, about what might happen if the authority to detain a patient were about to expire for whatever reason—possibly because the after-care services that the patient needed were not yet in place—and the health authority had not yet accepted the supervision application.

However, the way in which the provisions for supervised discharge have been framed for England and Wales makes the amendment unnecessary. First, the detailed requirements for consultation by the responsible medical officer with all those concerned are designed to ensure that a supervision application is made only once all necessary preparations are in place. The requirement for the health authority to consult the local authority before it accepts the application provides a double check on that, and there should be no reason to delay acceptance of the application once consultation has been completed.

However, in the unlikely event of a delay for some unforeseen reason, I commend to the hon. Gentleman and my hon. Friend section 20 of the Mental Health Act 1983. The renewal provisions of that section would remain available to enable a patient's detention in hospital to be renewed for as long as necessary. The existing provision is therefore adequate for that purpose without requiring a new procedure for renewing detention to be included in the Bill. The current measures add to that provision. I hope that the hon. Gentleman accepts the existence of that basic assurance and I invite him to withdraw the amendment.

Mr. Kirkwood

I think that I am reassured by that reply. I know the Minister well enough to know that he will monitor this matter carefully. If there are experiences like those that have been raised as genuine and legitimate concerns, particularly at the hands of schizophrenic patients, I hope that he will make it his business to ensure that any gaps that remain despite what he has said are closed at some stage in the future.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn

Mr. Bowis

I beg to move amendment No. 13, in page 3, line 29, leave out `unless the patient has otherwise requested,'.

Mr. Deputy Speaker (Sir Geoffrey Lofthouse)

With this, it will be convenient to discuss Government amendments Nos. 14 to 24.

Mr. Bowis

The amendments relate to the rights of a patient's nearest relative to be consulted and the position that arises when a patient objects. They fulfil the commitment that I gave in Committee to my hon. Friends the Members for Bournemouth, East (Mr. Atkinson), for Hendon, South (Mr. Marshall) and for Sevenoaks (Mr. Wolfson) and to the hon. Member for Wakefield (Mr. Hinchliffe) to table amendments to provide for that objection to be overridden in certain circumstances.

The amendments define two tests that must be satisfied if a patient's objection is to be overridden. First, he or she must have a propensity to violent or dangerous behaviour towards others. Secondly, the responsible medical officer must believe that it is appropriate for the nearest relative to be consulted.

I am sure that all hon. Members on both sides of the House will understand that, in those amendments, we have found it necessary to walk a tightrope in maintaining a balance between all the different interests. I believe that the balance that we have struck is the right one.

I commend those amendments to the House.

Mr. Nicholas Brown (Newcastle upon Tyne, East)

The Minister is right; he is walking a tightrope. Despite his build—and perhaps my build as well—he appears to have made a successful job of it.

The amendments were a Government response to requests from my hon. Friend the Member for Wakefield (Mr. Hinchliffe) and Conservative Members to reconsider that aspect. The Government have tabled amendments relating to the rights of patients to object to their responsible medical officer consulting a nearest relative about placing the patient on a supervision order. As the Bill stands, the patient has the right to object to such consultations.

I believe that we all understand why, in normal circumstances—inasmuch as any of those circumstances may be described as normal—the patient should have the right to object to such consultations. However, the amendments mean that the patient loses his right to object to the consultation if he has a history of violence or threatening behaviour—and that is where the Minister says that he is walking a tightrope.

The purpose of the amendments is to strike a balance between the reasonable rights of the patient and the rights of relatives and close family. The amendments are intended to serve as protection for the families of violent patients. They make it less likely that a potentially violent patient can be discharged under supervision without his family being consulted and warned.

The Government probably have achieved the right balance, and I support the amendments.

Mr. David Atkinson

I thank my hon. Friend the Minister for responding so positively to the anxieties of the National Schizophrenia Fellowship about the amendments, and I thank our right hon. Friend the Secretary of State for Scotland for the amendments that are the equivalent for Scotland in those respects. I welcome the amendments wholeheartedly, and once again thank my hon. Friend, for his positive response in listening to us.

Amendment agreed to

Amendment made: No. 14, in page 3, line 36, at end insert— '(2A) Where the patient has requested that paragraph (b) of subsection (2) above should not apply, that paragraph shall not apply unless—

1. (a) the patient has a propensity to violent or dangerous behaviour towards others, and
2. (b) the responsible medical officer considers that it is appropriate for steps such as are mentioned in that paragraph to be taken!.—[Lord James Douglas-Hamilton.]

Ms Jowell

I beg to move amendment No. 45, in page 7, line 12, leave out lines 12 to 16.

Mr. Deputy Speaker

With this, it will be convenient to discuss the following amendments: No. 46, in page 7, line 12, leave out 'A patient subject to after-care under supervision may' and insert 'An application for a patient subject to after-care under supervision to be taken and conveyed (in this Act referred to as a "conveyance application") duly completed in accordance with subsection (4A) below, shall be sufficient authority for the patient to'. No. 47, in page 7, line 16, at end insert— '(4A) A conveyance application may be made by the supervisor in respect of a patient subject to after-care under supervision, on the grounds that—

1. (a) he continues to suffer from a mental disorder, being mental illness, severe mental impairment, psychopathic disorder, or mental impairment, and
2. (b) it is necessary for the health and safety of the patient or for the protection of others that he should be taken and conveyed in accordance with subsection (4) above.

(4B) A conveyance application shall be made to the Health Authority which accepted the supervision application in respect of the patient.'.

Ms Jowell

These amendments deal with the take and convey powers that the Bill will give to those responsible for supervision or anyone who is nominated by the supervisor. In our opinion, they are the changes in the law that are most likely to create serious difficulties.

Amendment No. 45 removes the new powers altogether from the Bill. The aftercare organisations responsible for supervision and care would still be able to formulate and impose requirements on the person subject to supervision and would have to conduct a review if the person failed or neglected to comply with them. However, the supervisor would not be able to exercise physical force in seeking compliance. That is not to say that community psychiatric nurses, social workers and other people who will be involved in supervision would be left without legal powers to tackle problems when they occur.

One can imagine the circumstances in which the new power may have to be used. For example, the person under supervision may be behaving in such a way that the supervisor believes that an urgent assessment is required; or the person may be preventing access to their home, one of the most common difficulties in offering support to seriously mentally ill people in the community.

Very occasionally, the person's behaviour may be so disturbed as to pose an immediate threat to their own safety or to that of other people or property.

In each of those situations, ample legal powers already exist and are routinely used by those who are allowed to do so in order to deal with the matter. Assessments are undertaken, if necessary, after a social worker has obtained a warrant requiring a person to give him and the doctor access. The Mental Health Act 1983 and other laws clearly allow professionals to intervene when behaviour is so disturbed as to justify the need for further assessment or to restrain violent or threatening behaviour.

High-quality supervision and support for mentally ill people in the community depends for their effectiveness not on new coercive legal powers, but on the appropriate use of existing powers and the more effective deployment of professional resources and services for people needing intensive support and help. If the essential success of after-care plans relies on the agreement and consent of the patient and his or her partnership with the professional team, the Minister must tell us how he justifies the creation of new powers that are so controversial with those who will be called on to implement them and so potentially damaging to the relationships that professionals are to have with those in their care.

4.30 pm

Let us consider what the Minister is proposing in the Bill. He has not drafted the power so that the supervisor can compel the patient to submit to treatment, occupation, education or training—if one could even contemplate the last two options being possible in practice. The power does not give the supervisor the right to use force to enter premises, nor can the supervisor detain the patient after he or she has been conveyed. Even doctors who have called for new powers find that difficult to understand.

Professor Chris Thomson, registrar of the Royal College of Psychiatrists, has written: To many psychiatrists and others this is the worst of both worlds. The mentally ill would be subject to the power of 'arrest' to no apparent purpose. Psychiatrists remain deeply sceptical and believe that the Bill will not provide the extra public safety which the Government is hoping for. We would not support moves to compel treatment on patients in the community and we believe that the measure may do harm even if it remains largely unused. That harm will be greater than any benefit that may accrue from having this power on the statute book.

One of the most harmful effects may be to encourage poor professional practice. As I think we all accept, good community care depends on high quality relationships, built on trust, confidence and sensitivity to a person's individual needs and circumstances. The threat or use of force can offer the short cut of gaining a person's compliance with a plan or programme. In place of the careful and diligent development of an effective relationship with the patient, a supervisor can merely call in aid his or her power to take and convey or threaten to get the police in order to use it. We are sure that that will damage community care—driving people from services rather than encouraging them to use them, especially if, as will be likely, supervisors try to get the police involved in using coercion rather than use it themselves. Many professionals are unhappy about the prospect of having these powers. Therefore, the provision may be irrelevant because, as I have said, it may simply not be used.

We recognise that the House may not be persuaded that the powers should be removed from the Bill. The House may consider it possible to regulate their use in order to deal with the concerns that I have outlined. We have also tabled a compromise amendment. Amendments Nos. 46 and 47 preserve the powers, but require those who wish to use them, first, to submit to the health authority which accepted the supervision a written application setting out the grounds.

Those grounds require the supervisor to confirm that the person is still suffering from a mental disorder within the meaning of the Act and that the use of the power to take and convey is necessary, not just beneficial or convenient, for the sake of the patient's health and safety and for the protection of others. The amendment therefore links the use of the power to some threat to patients' health or risk to their or other's safety.

We believe that the power can be justified only when it is subjected to such clear and explicit regulation. It is only in those circumstances that professionals and patients will be able to see the reason for using the power and any justification there may be for it.

Mr. Kevin Hughes (Doncaster, North)

I shall be brief in my remarks today as the points were explored in great depth on Second Reading and in Committee. I welcome the fact that the Government have decided to put the issues regarding the provision of care for the mentally ill on the agenda. However, I must also voice my concerns about the legislation that is now before Parliament.

The Government claim that the Mental Health (Patients in the Community) Bill is "uncontroversial", but my hon. Friend the Member for Dulwich (Ms Jowell) has pointed out that that is certainly not so. The Government have failed completely to listen to the widespread opposition to their proposals. We know that leading health professionals and patient organisations are united in their opposition to the Bill. They are particularly concerned about the proposed power to take and convey people with mental illness to places of treatment. Therefore, I support the amendments moved by my hon. Friend that would remove that power from the Bill.

First, the proposal is an affront to civil liberties and we covered that ground in Committee. The Bill provides no restrictions on who can exercise the power to take and convey and there is no requirement to inform the patient of the reasons for its use. 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 that power and there are no safeguards to protect the person being conveyed or the person effecting the conveyance.

Secondly, I question the workability of the proposal. The Bill proposes that patients be taken and conveyed to a specified place, but it does not suggest what should happen to patients once they have been taken and conveyed. It is difficult to see how an unwilling patient could be forced to take part in activities such as education and training, even if that patient has been successfully taken and conveyed to a specified place.

The proposal seeks to compel patients to use services but, amazingly, it provides no guarantee that those services will be provided. The proposal threatens to damage the relationship of trust between patient and supervisor and there are concerns that, as a result of the Bill, patients in the community will be discouraged from remaining in contact with the mental health services.

Many social workers and community psychiatric nurses are not keen to take on the new power as they believe that it could put them at risk from potentially violent patients. Some professionals have said that they would not use any of the Bill's provisions—which they regard as unnecessary—as they believe that the Mental Health Act 1983 is adequate. Leading mental health professionals have expressed strong reservations about the proposals on take and convey. My hon. Friend has quoted the remarks of Professor Chris Thomson, registrar of the Royal College of Psychiatrists. It is worth repeating, and I hope that the Minister will listen: To many psychiatrists and others this is the worst of both worlds. The mentally ill would be subject to the power of 'arrest' to no apparent purpose. That concern is shared by many people who work daily with the mentally ill. It is ridiculous for the Government to seek to improve the provision of care for the mentally ill without heeding the advice of the professionals who daily provide that care.

The Bill fails to address the concerns of the caring professions, who are anxious that treatment for the mentally ill should be properly addressed and funded. The Bill's provisions do not address long-term issues but are a quick fix aimed at mending public opinion rather than mending an outmoded and underfunded system.

I hope that the Government have noted past debates and those today, will listen to health professions, and will accept the amendments, so that we may all be united in getting behind better services for the mentally ill.

Mr. David Nicholson (Taunton)

I hope that I have the support of my hon. Friend the Member for Bournemouth, East (Mr. Atkinson) in asking my hon. Friend the Minister to resist the amendments. It is important that this difficult and sensitive subject should be explored at this stage of the Bill and the speeches have been helpful, but my hon. Friend will be aware that the National Schizophrenia Fellowship has briefed us to resist the amendments. The fellowship is not concerned about this particular power. In fact, the NSF thinks that it is sometimes necessary to use that power. Patients found wandering in the streets need to be returned to their accommodation. When offered transport by authorised staff, they are willing to accept it.

In addition to the NSF's representations, I and other hon. Members are aware of individual episodes in our constituencies. Such a safeguard is necessary for people to accept and support the care in the community measures that the Government have introduced, with widespread support, in recent years. I look forward to hearing from my hon. Friend that he resists the amendments.

Mr. Bowls

The hon. Member for Newcastle upon Tyne, East (Mr. Brown) invited me to join him on the high wire. Although we paled at the thought of the impact on the Chamber, that summed up the balance that we are seeking to achieve. That was evident even on the other side of the House. The hon. Member for Dulwich (Ms Jowell) said that the 1983 Act was adequate, while the hon. Member for Doncaster, North (Mr. Hughes) said that the system was outmoded. Somewhere in the middle is the need to improve the system all the time, for the benefit of patients and the whole community.

When the Law Commission's report on mentally incapacitated adults was published, it looked to extend the power to convey to guardianship, which the commission said was the unanimous view of everyone that it consulted. We heard a quote from the Royal College of Psychiatrists, but I could quote another report that states exactly the opposite—that the Government are not going far enough. That message has also come from the British Medical Association, and the view of the National Schizophrenia Fellowship suggested that the amendment should be resisted.

The Labour party must look at its own policy. In the other place, Labour thought that the power to convey was so good that it should be extended to guardianship, yet Labour Members here believe that that power should not apply to anyone. They must explain to the public why that strengthening of care and support for severely mentally ill people and protection for the community is not something that they are prepared to accept. I believe that the public support our proposal, which is in the interests of patients.

4.45 pm

I will seek to reunite the hon. Members for Doncaster, North and for Dulwich. We have made it clear that supervised discharge will work largely on the basis of co-operation between all concerned. We therefore see the power to convey a patient being used only rarely—for example, when he or she is temporarily unco-operative, which point was forcefully made by my hon. Friend and the NSF.

The principle of a power to convey is already present in the Mental Health Act 1983 when a patient has to be taken to hospital for treatment or assessment. That may be valuable in helping to resolve a temporary crisis. It is limited in nature and provides a halfway house before return to hospital is considered. If there were no power to convey, the care team would be in the position of needing to consider readmission to hospital on every occasion that a patient was unwilling to co-operate with the arrangements for his or her aftercare.

The starting point for the Bill is that for this particular group of patients, the care programme approach is not enough and needs a degree of legal underpinning to make it effective. It is a matter of balance, and I believe that the Bill has the overall balance right.

The argument that the power to convey in some way contravenes basic human rights ignores the point that in the absence of supervised discharge, the patient might have had to continue being detained in hospital. In that case, the overall effect of supervised discharge is to enable someone to enjoy a greater measure of freedom—even though subject to some constraints—than would have been possible in its absence.

Amendments 46 and 47 would require the supervisor to make a "conveyance application" to the health authority before the power was used but the whole point about the provision is that it is likely to be needed in an emergency, to enable a patient to be removed urgently from a situation that may present a danger to him or herself or to other people—for example, as a result of drinking. The supervisor, or someone that he or she has authorised, needs the power to ensure that effective action can be taken in such a case. Requiring the supervisor to apply to the health authority would defeat the purpose of the provision.

This reserve power is designed to help ensure that the patient will receive and participate in the aftercare services that he or she needs. As the NSF said, it could defuse a crisis and persuade previously resisting patients that it would make sense if they agreed to go back home or to see a doctor or psychiatric nurse. It clearly involves less restriction of a patient than the alternative of considering readmission to hospital when the patient ceases to co-operate in the delivery of aftercare services. In that spirit, I hope that the hon. Member for Dulwich will withdraw her amendment.

Ms Jowell

I want to make it clear that there is no dispute between myself and my hon. Friend the Member for Doncaster, North (Mr. Hughes). My point was that existing powers are adequate to cover take-and-convey as the Minister intends. I was not making the point that existing legislation is adequate. There is increasingly urgent need for a review of the 1983 Act, to address properly the dramatic and correct shift in the last 12 years in the care and treatment of people suffering from mental illness, from hospitals to the community.

The Minister attempted to confuse events in the other place. My noble Friends were seeking to draw out the distinction between the power to take and convey and the power of guardianship. They appear almost identical, apart from the use of coercion—guardianship is not a coercive power.

The Minister described the provision as a reserve power that will be used only rarely. The power might be helpful where a seriously ill individual has stopped taking his or her medication and begins to deteriorate—becoming disturbed and disruptive and causing concern to their family, people around them and professionals. If the Minister envisages take-and-convey being used in such circumstances, I would insist that adequate powers are already available in the 1983 Act. Indeed, the circumstances in which the reserve power is likely to be needed are precisely those in which the individual is likely to need to be taken to hospital for assessment and, possibly, treatment. We are not talking about a draconian and coercive power to take someone to a day centre, simply because they choose not to go; at any rate, I sincerely hope that that is not what is being proposed.

Although I am naturally disappointed that the Minister is not prepared to accept even the compromise proposals, we shall not press the amendment to a vote. We believe that the House will wish to return to these matters at a future date, when a Labour Government will conduct a thoroughgoing review of the Mental Health Act 1983.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 15, in page 8, line 7, after `patient' insert `who is (or is to be)'.

No. 16, in page 8, line 21, leave out `unless the patient has otherwise requested,'.

No. 17, in page 8, line 27, at end insert— '(6A) Where the patient has requested that paragraph (c) of subsection (6) above should not apply, that paragraph shall not apply unless—

1. (a) the patient has a propensity to violent or dangerous behaviour towards others, and
2. (b) the community responsible medical officer (or the person who is to be the community responsible medical officer) considers that it is appropriate for steps such as are mentioned in that paragraph to be taken.'.

No. 18, in page 8, line 28, leave out ', after such consultation,'.

No. 19, in page 11, line 12, leave out `except where the patient has otherwise requested,'.

No. 20, in page 11, line 18, at end insert— '(5A) Where the patient has requested that paragraph (b) of subsection (5) above should not apply, that paragraph shall not apply unless—

1. (a) the patient has a propensity to violent or dangerous behaviour towards others, and
2. (b) the community responsible medical officer considers that it is appropriate for steps such as are mentioned in that paragraph to be taken.'.

No. 21, in page 12, line 22, leave out `unless the patient has otherwise requested,'.

No. 22, in page 12, line 29, at end insert— '(3A) Where the patient has requested that paragraph (b) of subsection (3) above should not apply, that paragraph shall not apply unless—

1. (a) the patient has a propensity to violent or dangerous behaviour towards others, and
2. (b) the community responsible medical officer considers that it is appropriate for steps such as are mentioned in that paragraph to be taken.'.

No. 23, in page 12, line 44, leave out `unless the patient otherwise requests,'.

No. 24, in page 12, line 48, at end insert— '(6) Where the patient has requested that paragraph (c) of subsection (5) above should not apply, that paragraph shall not apply unless subsection (3)(b) above applied in his case by virtue of subsection (3A) above.'.—[Mr. Dorrell.]