HL Deb 29 January 1990 vol 515 cc68-86

7.2 p.m.

Lord Mottistone rose to move, That the code laid before the House on 5th December be withdrawn.

The noble Lord said: My Lords, I am advised by the National Schizophrenia Fellowship whose views are strongly supported by a parallel organisation called Rescare.

The code of practice for England and Wales is most unfortunately still not a success. It had a fairly chequered history which I shall briefly outline. The Secretary of State asked the Mental Health Act Commission to prepare a draft which was circulated for comments in December 1985. As a result of considerable and often critical response, including that from the National Schizophrenia Fellowship, to this lengthy 236-page document, the Secretary of State decided to withdraw it and produce a shorter document. This 45-page revised code appeared in August 1987 and comments were invited by November 1987. Once again people complained about it. It was widely criticised, especially by the Mental Health Act Commission. It was again withdrawn.

Mr. William Bingley, the legal director of MIND, was seconded early in 1989 for six months to the Department of Health to prepare a third version, which was laid before the House of Commons in December 1989 without formal consultation. The National Schizophrenia Fellowship was asked to give its views on the draft in an ad hoc and informal way, but its concerns have not been taken on board. The Act has been in existence for six years without its much-needed code of practice to guide the professionals in its use. This code is still unnecessarily long, at 86 pages, and does not in many places accurately reflect the Act. I make a strong point of that. The Act requires the code to clarify and explain it.

The Scottish code to which I must refer has been generally welcomed throughout Scotland and in particular by the Scottish branch of the National Schizophrenia Fellowship. It is much shorter, at only 24 pages, but more importantly still it takes care where relevant to quote the Scottish Act accurately.

Having dealt with that basic problem I should like to make three detailed criticisms of the code which exemplify where it is wrong and point to parts of it which clearly need to be put right. The first relates to paragraphs 2.6 and 2.7 of the code which give the reasons for compulsory admission to hospital. These are stated clearly in Part I of the Scottish code. It says that a person can be detained in hospital: in the interests of his own health or safety or for the protection of others".

It uses the exact words of the Act. In the English code the words "health and safety" and later "health and/or safety" are used, which do not appear in the Act. I consider it extremely important that the words of the Act should not be tampered with and that the code should clarify a situation which has led to many problems, and will continue to do so unless the matter is cleared up, for England and Wales.

Many NSF members report extreme difficulty or failure in securing compulsory admission to hospital for schizophrenics who refuse treatment on a voluntary basis but are felt by their relatives or carers to need it urgently. It has seemed for some time that this partly arose from misconceptions about the Act on the part of some social workers and doctors. The parts to which I have just referred will make this worse, not better, because it will be more difficult for social workers and doctors to interpret the Act accurately. Evidence of this misconception by workers and doctors was published recently in a standard psychiatric textbook written by three psychiatrists. The NSF has had it corrected. A book written by a consultant psychiatrist made the same mistake, as did a printed summary of the main provisions of the Act published by the Royal College of Psychiatrists. This mistake is to say that compulsory admission is only possible if a person is a danger to himself or others.

The NSF knows of cases where a person has never been admissible for those reasons. For example, the son of one of its members spent two-and-a-half years having bizarre fantasies after breaking down at university. Depite diagnosis of schizophrenia and efforts to admit him formally he refused to accept that he was ill. He was never a danger to himself or others. When admitted compulsorily at last in the interests of his own health he improved dramatically after treatment and was even able to work with computers.

My second point relates to paragraphs 18.23 and 18.28 which concern care for the patient detained in hospital. Those patients are detained because they are a danger to themselves: they may commit suicide; they may also be a danger to others; and they are violent because of their delusions. Moreover, in England they are often not in fact detained.

An extract from an NSF members letter illustrates that fact. It reads: Four or five attempts were made by us, his parents, to get our son into hospital … He eventually finished up assaulting a poor woman and was therefore committed to prison on remand. He was shuffled around Croydon, Leicester, Birmingham, Herts … and finally to Brixton … When eventually up in court in Croydon he was ordered to be detained in Warlingham Park Hospital … I knew he should have been put in a secure ward and expressed my disquiet when this was not effected … he was put in an open ward. He absconded, was picked up, and again remanded for breaking terms of bail. How do the authorities expect a man to behave …when he is in effect shown an open door?

The NSF's concern, and indeed mine, is with the emphasis in the English code which seems to be over much on the patient's freedom, despite his admission as a detained patient who may remain violent or suicidal until treatment has had time to help him. It is found that detained patients leave hospital with ease. The Scottish code, while firmly stating what are the patients' rights, is far more balanced about the need to sometimes restrict that liberty. To find reference to that one would need to turn to paragraphs 4.7 and 4.8 of the Scottish code.

Finally, I should like to turn to paragraphs 2.27 and 2.30 of the code. There the English and Welsh code seems to be reluctant to involve the nearest relative. This particular section refers to what the nearest relative should know. The Scottish code states clearly in paragraph 1.2 that an application for admission to hospital, is made by a person's nearest relative or by a mental health officer". It continues to say, the nearest relative will require professional guidance". It then stipulates in paragraph 1.7 that one of the first tasks of the mental health officer, should be to agree with the nearest relative which of them should make the application".

The English code is quite different in saying that the approved social worker and doctor should advise the nearest relative of his right to apply, "where necessary". In a situation where relatives are usually totally ignorant about the provisions of the Act, I feel that professionals should tell them what their rights are, what they can do legally and how to do it —as the Scottish code requires.

Therefore we are left with an inadequate code. The examples I have quoted are not the only inadequacies. It is a code which is excessively biased towards what one might call the "civil liberties theme". That is not what Parliament wished to introduce when it passed the Act. Moreover, the code does not repeat the Act. Therefore it will be much better if this code could be withdrawn even at this late stage and if the Department of Health could swallow its pride and issue for England and Wales the Scottish code, suitably amended to take care of the fact that we do not have sheriffs south of the border. Of course, other small points would have to be dealt with where the provisions of the Acts may be different. But, most important, we should have a code which reflects the Act and one which explains it; but it should not be interpreted by someone who happens to be keen on civil liberties.

Therefore I hope that noble Lords will find themselves able to support my plea that this code should be withdrawn. I also hope that my noble friend the Minister will be able to tell us that there will be some give as regards amending, if not withdrawing, this code in the future. We do not have much time.

I have endeavoured to speak as rapidly as possible. I trust that I have covered the main points, and I hope that those splendid noble Lords who have put their names down to speak will do so briefly. Further, I hope that those who do not take my view will not speak at all. I beg to move.

Moved, That the code laid before the House on 5th December be withdrawn. —(Lord Mottistone.)

7.15 p.m.

Lord Kilmarnock

My Lords, this splendid noble Lord (if I may be allowed to creep in under that umbrella) will certainly speak briefly. Many noble Lords present in the Chamber this evening will remember the passage of the Mental Health Bill in 1982. That legislation subsequently became enacted in 1983. It is quite true, as the noble Lord, Lord Mottistone, pointed out, that it had a strong emphasis on patients' rights and on civil liberties. Moreover, bodies such as Justice were very active in promoting those aims throughout the Bill's passage. Most of us at that time felt when the Bill was enacted that we had an enlightened Act of which we could be proud. That is certainly my recollection of those days.

I was somewhat alarmed to hear the noble Lord, Lord Mottistone, speak in what I thought to be slightly disparaging terms of a "civil liberties theme". However, that does not mean that I think he has not made a good point. But the scale of the problem is that of nearly 200,000 admissions in 1986—which is the last year for which figures are available—14.9 per cent., say, 15 per cent. of admissions for mentally ill patients were in the area of schizophrenia and paranoid cases —that is to say, roughly, 30,000 admissions. Over that period, only 6.8 per cent. of the admissions were compulsory. That means, if we spread it evenly across the board that possibly something in the region of 2,000 admissions were compulsory in that category. As I understand it that is the scale of the problem.

The concern of the noble Lord, Lord Mottistone, in moving his Motion really seems to fall into two main categories. The first is that the code does not sufficiently emphasise what is written in the Act under Section 2(2)(b) under the title, Compulsory Admission to Hospital and Guardianship". The subsection reads: he should be so detained in the interests of his own health or safety or with a view of protection of other persons". Therefore there are three considerations —that is, his own health; his safety; or the protection of other persons. The implication behind this Motion is that health professionals are perhaps not giving enough attention to the first of those three categories—namely, the interests of his, or, by implication, her health.

The second implication that I read into the noble Lord's Motion is that the rights of relatives are not being sufficiently valued by the health professionals concerned. If we look at Section 13(4) of the Act it reads: It shall be the duty of a local social services authority, if so required by the nearest relative of a patient residing in their area, to direct an approved social worker as soon as practicable to take the patient's case into consideration under subsection (1) above with a view to making an application for his admission to hospital; and if in any such case that approved social worker decides not to make an application he shall inform the nearest relative of his reasons in writing". I think that I am right in saying that the relative can be one of the people who make an application with a GP for an emergency admission, in conjunction with two health professionals, one of whom must have been a psychiatrist for a longer period of time. In the noble Lord's speech and the briefing put out by the National Schizophrenia Fellowship, I detect a feeling that those two rights or areas of concern of the relatives are not being properly met.

The noble Lord also suggested that the code does not properly reflect the Act. It uses the words "when necessary"; that is to say, that the relative can be informed of his or her rights "when necessary". That is presumably a subjective judgment by the social worker or the other health professionals concerned. That right should be made clearer to the relatives. There is a delicate balance to be struck. There is obviously some substance in those worries which is related partly to the nature of schizophrenia. There are many conditions of mental illness which do not normally lead to psychosis, whereas, sadly, at one time or another schizophrenia almost invariably does. The patient suffers from delusions and is divorced from reality. That often gives rise to severely aberrant behaviour against himself, herself or others. The noble Lord said that suicides are not infrequent in schizophrenia cases.

The thing about psychotic conditions, as I understand it —I hesitate to speak when noble Lords with a medical background are in the House —is that they can be successfully treated with a chemical therapy if given in time and maintained at a proper level. If action is not taken in time on the application of a concerned relative by the necessary health professionals, then the type of case mentioned by the noble Lord where the patient ends up in prison on remand is a possible outcome.

It is probably not clear at the moment which side I am coming down on. Those concerns need to be considered. I am informed that psychiatrists are often afraid to use their powers to treat patients, even when they have been detained compulsorily, in case there are later actions against them. My recollection is that there are plenty of provisions in the Act to protect patients; that is to say, the six-month safeguard of an application to the Mental Health Tribunal or a compulsory review. When the Bill was going through the House, we wrote those provisions into it, and as far as I know they still operate.

The noble Lord mentioned the Scottish code, which I am bound to say I have not read. I know that the Act is different but perhaps the noble Baroness will tell us when she replies whether there are rational grounds for the divergence between the two codes north and south of the Border.

I assume that in accordance with the normal practice of the House the noble Lord will not push this Motion to a Division. If he were to do so, I would find it difficult to support him. He has raised some queries which the Government should take seriously, with the aim of seeing whether, in this extremely difficult area, the interests of the patient's health and the difficulties faced by the relatives of schizophrenic patients cannot be improved or the balance against the families and the carers perhaps to some extent redressed.

I return to where I started. The Act was a liberal and a civilising one designed to remove repressive measures from mentally ill people. That is one of its main purposes; I remain fully in support of that purpose. It would be surprising if, after several years of operation, difficulties in the administration of the Act did not emerge. It is reasonable that the Government should take on board some of the concerns expressed by the noble Lord and produce a reasoned answer to them. We look forward to hearing what the noble Baroness says.

7.24 p.m.

Lord Thurlow

My Lords, as this is the first occasion the noble Baroness has answered from the Dispatch Box on a Motion on mental health, I should like to say how warmly I welcome her arrival in this important field of health. As the prospects seem to be that the responsibilities for treatment and after care are likely to remain fragmented between two or three central departments and a host of local authorities, it is especially fortunate that she has had distinguished service in local government and is well known for her distinguished service in co-ordinating air traffic control. Her powers will be fully exercised.

I am pleased that the noble Lord, Lord Mottistone, has given us this opportunity to air some of the uneasiness we feel about the omissions in the code. I, and I am sure others, are mystified as to why the points put forward by the NSF which, after all, is the recognised expert on schizophrenia, have not been taken on board by the department when they were courteously brought to its attention.

To take the noble Lord's first ground for uneasiness, it is extremely important that grounds for admission are generally recognised as the right of a sick person to be treated whether or not there is an apparent danger to himself or others. That distinction goes to the root of many of the problems involved in handling schizophrenia. There is often danger, but there is often no danger. We are dealing with a serious pathological state. The illness is the central causation of the symptoms, and it is mainly a health issue. Social aspects, however important, are secondary. So why does the code conceal from those it seeks to guide the fact that the first ground for compulsory admission to hospital is the interests of the patient's health? I cannot believe that there is a deliberate effort to conceal. If the answer is that all concerned know that well enough and know that admission is possible on grounds of health alone, it must be said that that is not true. Relatives normally have little familiarity with the terms of the Act. As the noble Lord reminded us, if those writing the textbooks sometimes do not know, how can the ordinary layman be expected to know?

In my view, the code is in most respects admirable and will be of great help. No one therefore wishes to delay its publication. Goodness knows, it has been long enough in gestation. Therefore, I wonder whether the objects of the noble Lord might be achieved not by delaying publication but by circulating an accompanying brief leaflet with every copy of the code. Then the correction could be made in due course when the second edition of the code is circulated. We certainly do not wish to be obstructive but the code must not be allowed to mislead.

I have further uneasiness about it in its present excellent form. That uneasiness relates to chapter 26 on aftercare. The code quite rightly says that all those contributing to the discussion about what should be done for the patient after discharge should take into account a variety of important considerations. One paragraph dealing with issues that must be considered refers to, day care arrangements, appropriate accommodation, out-patient treatment…assistance in managing finances, and, if necessary, in claiming benefits". That is just a selection of the issues that have to be considered. If there is to be the right kind of aftercare, all these issues require a great many qualified, trained staff. In previous discussions in your Lordships' House, we have expressed our dismay at the present gap between the need for trained community psychiatric nurses, for instance, and the existing provision. To some extent in this chapter the code is in danger of encouraging a complacent approach to what is likely to emerge. Resources are at the centre of the solution to the aftercare problem. We look forward to the debate which will take place before very long on the forthcoming Bill. We hope that we shall be given encouraging news about resources. We also hope that the noble Baroness will do her best to ensure that this comes about.

In the absence of such an outcome it seems to me that there is precious little possibility of the kind of aftercare to which the code looks forward. Until the resources are available and until the necessary trained and qualified aftercare staff are available I suggest that the discharge of patients should for the most part be suspended.

7.35 p.m.

Earl Haig

My Lords, I wish to add my congratulations to the noble Baroness who will answer the Prayer of my noble friend Lord Mottistone. He has enabled us to debate the matter this evening and I support his Motion for this code of practice to be withdrawn in order that it may be reworded. Doctors need to be given stronger and clearer powers to enable them to make sure that patients remain in hospital until reasonable time has been given both for diagnosis and for treatment.

Treatment delays always militate against recovery chances in cases of schizophrenia. There is an ambiguity about the wording of the code of practice for England and Wales and it is liable to be misinterpreted. It should be possible to retain a patient in hospital either because of the seriousness of his condition or because of the possibility of physical harm being done to himself or to others.

Withdrawal of the code of practice will enable it to be replaced by a clearer code. The giving of greater powers to retain a person in hospital should run parallel with adequate provision of nursing staff, hospital beds and aftercare treatment. A new code will give more confidence to all concerned, not least to relatives, who need to rely on doctors to assume full responsibility in matters where only medicine can help and only doctors can decide.

The rights of the patient must be carefully defined so that unwarranted periods of incarceration are avoided. The claustrophobic fear arising from lengthy stays in the not altogether homely confines of hospital should be understood. Where enforced incarceration is required for the sake of treatment, there should be rules available to enforce the incarceration —not only rules, but as a last resort there should be practical ways in which to stop people from escaping as well. I remember once escaping from hospital myself, but that was my first night of freedom after three years of incarceration as a POW. It was perhaps understandable.

This Prayer concerns the English and Welsh code of practice only. I am glad to think that in this instance Scotland may have done it better and I should be happy to see the Scottish code taken as a guide.

7.38 p.m.

Lord Winstanley

My Lords, I must apologise for the fact that my name was omitted from the list of speakers in error, although perhaps I should say in defence that the error was not mine. Since noble Lords have not been given written notice that they would have to listen to me, it behoves me to be as brief as I possibly can. I shall be.

I too at the outset wish to congratulate the noble Baroness who is to reply on the subject from the Front Bench. I am sure she will make an admirable Minister but I must warn her that if she becomes too good at it, when she has mastered the subject properly the Government will move her. That always happens in our House.

The noble Earl, Lord Haig, talked about the need for doctors to have more powers. As a doctor I am a little nervous about powers. I tend to feel that doctors do not need powers if they do their job properly. However I take the point that the noble Earl made that patients are discharged from hospital who should not be discharged.

The question of powers is at the very heart of the argument we have been having. We had the same argument way back in 1982 when we debated at very great length, night after night, the Mental Health Act, the Mental Health Act Commission and so on. We then had to try to balance the civil liberties side of the question, the rights of the individual and individual freedom with medical needs. That is not an easy balance to strike.

Noble Lords are right, particularly the noble Lord, Lord Thurlow, in making it entirely clear that the difficulties tend to arise with patients suffering or believed to be suffering from schizophrenia. The noble Lord, Lord Mottistone, does and has done admirable work for some time for the National Schizophrenia Fellowship. It is therefore entirely understandable that he should raise the fellowship's present anxieties, most of which arise in that field.

It is right to say that this is a difficult area. It is not one in which there are easy solutions. However, we know that schizophrenic patients have a tendency to relapse if they stop taking their medication. They have a tendency to stop taking their medication once they cease to be under medical control. That is one of the problems. In my view it would be regrettable if the code were now withdrawn after many years of compilation of evidence. We need a code.

I note that the Royal College of Psychiatrists is very anxious that the code should not be withdrawn. However, perhaps it would be appropriate to remind the Royal College that some of the difficulties have arisen because some of the members of that college have sometimes made grave errors with regard to schizophrenic patients. I raised the matter of one such patient in your Lordships' House some time ago. I mentioned the tragic case of Isabel Schwarz who was a social worker in a hospital in London murdered by a schizophrenic patient. That patient had received no supervision at all from the consultant psychiatrist under whose care he had been.

How do we draw the lines? It is difficult, but we are certainly not drawing them in the right places. The noble Lord, Lord Thurlow, was right to highlight aftercare. The noble Lord, Lord Mottistone, introduced schizophrenia aftercare legislation because aftercare for schizophrenic patients is not now a reality in any sense of the word. No kind of code of practice can make it so. The aftercare that many such patients receive is the care they receive sleeping rough on the streets of London. A high proportion of the people who occupy beds in hostels for homeless people are schizophrenic patients.

I am not saying that all those patients should be rounded up and locked up in hospital, but there are many cases in which schizophrenic patients have exercised their freedom and have discharged themselves from hospital. However, no real efforts have been made to keep them under medication at a time when their health requires it. Therefore, I think it is regrettable that we have wandered away from the words in the Act in drawing up the code of practice.

I agree that the Scottish code is better. It is a much shorter code but shorter provisions are usually better. We often hear that things are done better in Scotland than here. I am not saying that we should scrap the English and Welsh code and merely adopt the Scottish one, but this debate has been useful in that it will have drawn attention to the fact that grave problems are arising and the code of practice is unclear about a number of matters.

One thing is certain in my view and that is that if all the psychiatrists, social workers and others involved with these patients interpreted the Act and the code of practice sensibly, intelligently and with great care nothing need go wrong. The code of practice cannot on its own stop things going wrong but far too many things have gone wrong and seriously wrong in recent years with regard to schizophrenic patients. The code of practice cannot stop that but thought about the code of practice and particularly re-examination of it by those who have to operate it can do nothing but good. I shall not sit on the fence as the noble Lord, Lord Kilmarnock, said he was, like the good old Liberal which he used to be —

Lord Kilmarnock

I came off the fence.

Lord Winstanley

The noble Lord says that he came off the fence. It would be regrettable if the code of practice were withdrawn but I think it is helpful that some of our misgivings should be ventilated. However, it would be even more helpful if some of the things that were said in your Lordships' House, not only on this occasion but in the debates that took place during the passage of the legislation of the noble Lord, Lord Mottistone, not so long ago, were heard and heeded by those who work in this field. If that were the case, things would be bound to improve.

7.45 p.m.

The Lord Bishop of Worcester

My Lords, I too should apologise for not having my name on the list of speakers. I should thank also the noble Baroness, Lady Blatch, for showing kindness to a Bishop who has gone astray. However, I was not in time to put my name on the list.

I am in touch with this subject through being president of the Worcestershire branch of MIND. I can say that the need for a code of practice is paramount. Everyone involved in this field tells me that now is the time to have a code. I believe they are in favour of the one we have on the table. However, we must also take account of what the National Schizophrenia Fellowship is saying. I have seen all too often families almost destroyed by the problem of schizophrenia which they have to cope with by themselves. They are asking that a schizophrenic person should be put into care for his or her own benefit.

In one Salvation Army hostel in this city, out of 123 men nearly 40, that is 32 per cent., are schizophrenic patients who have discharged themselves from hospital and have gone onto the streets. Sometimes of course their parents have died and they have no home to go to. They are not on the lists of any agency and the future is extremely bleak for them. I hope that Her Majesty's Government will produce a code of practice, whether it be this one or the Scottish one, as we cannot wait any longer. The Mental Health Act was passed in 1983 and a code of practice for those working in the field is now necessary.

Further, I ask that the pleas of the National Schizophrenia Fellowship be taken seriously and that that body be reassured. I go along with those who have already said that codes of practice will be of no use at all unless there are reasonable resources of professional help for those in the community. May we have a code and may we take seriously the things which are said by the National Schizophrenia Fellowship? I go along with the code that we already have, if only the Government can reassure those who are in doubt about the schizophrenia problem.

7.48 p.m.

Lord Campbell of Croy

My Lords, I told my noble friend Lord Mottistone several days ago that I would be speaking in this debate but I was not aware that there would be a list of speakers as on previous occasions of this kind there has not been such a list. That is why my name is not on the list.

First of all I wish to congratulate my noble friend Lady Blatch on her present position. I believe this is the first health debate to which she will reply although she has already been active at Question Time. I wish to support what my noble friend Lord Mottistone has said in raising two matters under the code of practice for England and Wales which are dealt with quite differently from the way in which the Scottish code deals with them. The Scottish code appears to be satisfactory on the reasons for compulsory admission to hospital. The Scottish code repeats exactly the words of the 1984 Scottish Act.

As regards the treatment of the nearest relative to the sufferer, in the Scottish code the nearest relative is to be given the kind of professional guidance and help which most of us believe the nearest relative should get as the relative probably does not know very much about the illness and the availability of help. On those two points my noble friend has rightly pointed out the weaknesses in the code for England and Wales.

We all have in mind —it is quite right that it should be prominent in our minds —when considering this provision that schizophrenia is a severe mental illness which is not the Jekyll and Hyde phenomenon that many think it is. Its cause is still not known and a cure has not been discovered. Much progress has, however, been made in medicine and in the treatment of the illness.

In the last Session my noble friend Lord Mottistone piloted through the Schizophrenia After-Care Bill as a Private Member's Bill. In doing so, he performed an important service in drawing attention to the problems which arise with that illness. I shall not repeat some of what I and others said at various stages of the Bill.

Schizophrenia is an illness which does not observe parliamentary orders. In particular, it strikes when people are in their teens. It very often leads to the disappearance of the young person, who may travel a long distance. Certainly the Scottish Border will not be a barrier, in one direction or the other. It also strikes when people are students and away from home. It seems wrong that there should be differences in those two important points in the codes.

I am patron of the National Schizophrenia Fellowship (Scotland). I was also chairman for Scotland in 1981 of the International Year of Disabled People. We placed emphasis in the United Kingdom at that time on mental disabilities. On that occasion, I had a great deal to do in the United Kingdom and in England because, as some noble Lords will remember, the chairman for England, Sir Christopher Aston, was very ill and in hospital for much of the year. Sadly for his family and many friends, he died at the end of the year. He made a magnificent contribution as chairman for England though he himself was burdened with severe illness.

In 1981 in the United Kingdom we placed an emphasis on mental disability to draw attention to it and generate greater public awareness at a time when, I am glad to say, more and more people in the country were prepared to consider mental illness for what it was, and not sweep it under the carpet. In the spirit of that year and the way it was conducted, I ask the Government to have another look at the code for England and Wales.

7.52 p.m.

Lord Seebohm

My Lords, I also apologise for not having put my name down on the list of speakers in time. I shall be very brief. When I heard about this Motion, I spoke to my neighbour who has a schizophrenic son. She said that she would consult her son and ask what he thought of the proposal that compulsory admission should be available in the interests of the health of the schizophrenic on the application of a relation or doctor. He was in complete agreement that it should be clear that that was the right thing to do. He admitted that he had discharged himself from hospital before he should have done. This is anecdotal, but he confirmed that a friend of his in the same situation agreed.

There are only two other points I wish to make. On discharging themselves schizophrenics will almost certainly not take their medication. That is extremely important and is supposed to be put right in the National Health Service and Community Care Bill, to which the noble Lord, Lord Thurlow, referred. When that is enacted it will be compulsory to have a nominated carer for every mental health patient. Provided that carer is qualified, I believe that he or she should also have the right to make an application for compulsory admission.

7.53 p.m.

Lord Ennals

My Lords, perhaps I may begin, as others have done, by congratulating the noble Baroness on the first occasion on which she has replied to a debate. We always say on these occasions, "and we hope that she shall do so many times". That will depend upon what she says. Having seen the noble Baroness at work, I have great confidence that I shall want to say that.

I should also like to say a word to the noble Lord, Lord Mottistone. The fact that I shall disagree with most of what he said should not be taken in the sense that I have not greatly appreciated the work that he does for the National Schizophrenia Fellowship or the work of the fellowship, which in many ways I greatly admire. I am looking forward to addressing one of its conferences very soon. I greatly admired the work of the noble Lord in this House when he took through as far as another place the after-care Bill. I thought that he did a very fine job of it.

I have to say also that I am afraid that I shall not be drawn into the Anglo-Scottish debate as to whether the Scottish code is better because it came first. I have not read the Scottish code and so I cannot comment on it.

To begin with, I should like to say something about the importance of the Act. I had a great interest in it, and I see two other noble Lords sitting opposite who also had an interest. Back in 1973, when I was director of MIND, I put forward to the then Secretary of State, Sir Keith Joseph (now the noble Lord, Lord Joseph), a set of proposals to bring the 1959 Act up to date. He took action and work was started. That work was followed up by his successors, the noble Lord, Lord Jenkin, and my friend Mrs. Barbara Castle, until I arrived on the scene in 1976. I picked up the excellent results of the work that had been done under the supervision of the previous Ministers. I then did a great deal of work on the Act. I picked up the letter that I had written to the noble Lord, Lord Joseph, and took my cue from what I had told him that he ought to do. We went through the process of the Act. By that time I was on the Back Benches in another place but serving on the Standing Committee.

I agree that the Act is of great importance. Of course it recognised civil liberties. It is my recollection that, as it went through the other place and this House, that it would have been extraordinary had we not given due recognition to the need to recognise the civil liberties of people with mental illness, their relatives and the community. That is what the Act tried to do. In my view, it is what the code of practice seeks to do.

We are not here to amend the Act. The Act is passed and the code of practice is its application. Anyone who wants to see a different Act will have to start the process, as I did, of persuading successive governments to change the Act. They will see how long it takes.

The code of practice is also of great urgency. The fact that it is now six years —and nearly seven years —since the Act came into law in 1983 proves that urgency. As has been said, there were two previous drafts of the code. Although I did not see either of those drafts I have discussed them with many people who did. They were very unsatisfactory and had to be withdrawn. I have been lucky enough to have sight of an earlier draft of the latest code. It is an extremely good document; I want to support it right down the line.

I say to the noble Lord, Lord Winstanley, that it is important that we get the code of practice right. That will be accepted by all those who criticise it as well as those who support it. The first part of the code of practice, Chapter 1, reminds us that it does not impose a legal duty to comply with the code of practice, although it was the Act that determined that there should be a code of practice, but that failure to follow the code could be referred to in evidence in legal proceedings. So it is not just a piece of chatty advice on a flimsy leaflet. It is a serious set of recommendations as to how an Act passed after very great deliberation should be carried out.

The committee which was set up under the chairmanship of Mr. James Collier and the secretaryship of Mr. William Bingley —both men of very great ability whom I have had the privilege of knowing for many years, including the time when I was in the department (and that may be a criticism)—was set a daunting task. It has produced a very good document. It warmed my heart when I first had sight of it and it warms my heart now. It is comprehensive and comprehensible, sensible and sensitive. I congratulate the draftsmen on the job of work that they have done.

I received, as did others, the letter from Dr. Birley, the president of the Royal College of Psychiatrists, who said: It is now nearly six years since the Mental Health Act received Royal Assent. The College very much supported the suggestion in 1982 that there should be a Code of Practice but very much regrets the long delay in its preparation. There have been several draft Codes and the College has commented fully on each. We could not have supported earlier drafts, but this latest Code has been revised by a Department of Health Working Party and is acceptable in its present form to the psychiatric profession. We would therefore oppose any suggestion that the code be withdrawn". Some noble Lords have said that doctors need guidance about how they should fulfil their professional responsibilities, but the doctors are pretty skilled, although they are governed as much as anyone else by the terms of the Act. The code of practice is directed to everyone concerned —doctors, social workers, nurses, managers, patients, patients' families and all who are concerned with the welfare of patients. In that sense it must be a sensitive document.

The noble Lord, Lord Mottistone, and the National Schizophrenia Fellowship criticised the terms of paragraphs 2.6 and 2.7 on the grounds that they do not clarify the criteria for admission under Part II of the Act concerning civil detentions. I do not think that that is justified. The paragraphs are not there to restate the law which is to be found in subsections (2) and (3) and is reflected in the standard form of admission. All use the expression "health or safety" when describing the first two grounds for detention. Given that neither the words "danger" nor "dangerous" appears in the Act, it would have been misleading to bring them into the code of practice.

It is right that we should consider what paragraph 2.6 states. I did not recognise some interpretations of it. I shall not take long, but it is an important paragraph. It states: In judging whether compulsory admission is appropriate, those concerned should consider not only the health and safety of the patient but also:—

  • —the patient's wishes and view of his own needs;
  • —his social and family circumstances;
  • —his cultural background;
  • —the nature of the illness/behaviour disorder;
  • —what may be known about the patient by his nearest relative, any other relatives or friends and professionals involved, assessing in particular how reliable this information is;
  • —other forms of care or treatment including, where relevant, consideration of whether the patient would be willing to accept medical treatment in hospital informally or as an out-patient;
  • —the needs of the patient's family or others with whom the patient lives;
  • —the need for others to be protected from the patient;
  • —the impact that compulsory admission would have on the patient's life after discharge from detention;
  • —the burden on those close to the patient of a decision not to admit under the Act".
That is a comprehensive list of the factors which should be taken into consideration when deciding whether compulsory admission is appropriate. I do not therefore find that the code of practice either misrepresents or misunderstands or does anything but justice to the intentions of the Act.

It is clear that the National Schizophrenia Fellowship is concerned about the matter. It is not for me to give assurances. I hope that the Minister will do that. Part of my judgment as to whether I shall welcome her next time depends on whether she gives those assurances because the fellowship's anxieties should be properly considered. I imagine that it had the opportunity to submit its observations on earlier drafts seen by the drafting committee and I must suppose that not all its views were accepted.

That is also true for the Royal College of Psychiatrists, which had some criticisms. I understand that MIND has some criticisms and would like to see the code drafted in a slightly different way. Anyone who has had any experience, as many people here have, of trying to take into consideration all the different interests of professionals and pressure groups will understand that one can never find one set of words that is totally acceptable to everyone.

There is much in the code of practice which we should welcome. I found it a sensitive, clear, easy to read and easy to understand document which will meet its needs. It lives up to its intention that its presentation should be acceptable not only to its professional audience but to patients and their families, friends and supporters. It does not shrink in the introduction from stating some simple but significant basic principles which underpin the rest of the code. Those principles are important. Paragraph 1.4 states: it means that, when treatment or care is provided in conditions of security— that is what we are talking about— patients should be subject only to the level of security appropriate to their individual needs and only for so long as it is required". However, those needs must be met as long as necessary. When it is essential that there should be some limitations on freedom, those limitations may be imposed provided that the interests of all concerned are respected.

The section of the code dealing with assessment emphasises the importance of collaboration between the professionals (approved social workers and doctors) involved in the Mental Health Act assessments and the importance of each profession understanding and respecting each other's professional roles and responsibilities. The code gives straightforward and practical guidance on what are recognised as difficult areas for the professionals involved in the assessment, such as the use of Mental Health Act admission to protect others —that point was touched on by the noble Lord, Lord Mottistone; the interests of all must be considered —the problem of the deteriorating patient and when it is possible to use compulsion, and how to handle disagreements between assessing professionals. There are many other good points that might be made.

I have read the document carefully several times and I believe that it has taken into consideration the anxieties of each group. It has been alleged that the code of practice is in some way a liberation document and that it will make it more difficult for people with mental health problems to receive the care and treatment that they need. I do not believe that that is so. It will be of considerable assistance to patients and their families in ensuring that the proper care is delivered to them in a well thought out and accountable way.

I hope that the Government will not withdraw the code as they have been asked to do. It is essential that it should now be carried through as a proper and effective interpretation of the Act which was given so much consideration here and in another place and by voluntary organisations. We all have some criticisms, but I wish the document and all the mental health workers who will be guided by it well. It is a relief for me to find something on which I can genuinely congratulate the Government, as I warmly do.

8.8 p.m.

Baroness Blatch

My Lords, perhaps I may start by thanking those noble Lords who have extended their good wishes to me on my appointment. I only hope that the remarks of the noble Lord, Lord Ennals, will still stand at the end of the debate. I thank those noble Lords who share the anxieties of my noble friend Lord Mottistone for the understanding way in which they have expressed those anxieties. Like the noble Lord, Lord Winstanley, I believe that the debate has been most useful.

I welcome the opportunity on behalf of the Government to respond to the concerns of my noble friend about the code of practice and propose to do so by seeking to put the points that he has raised in their full context.

We are here dealing with an issue of great importance and complexity; namely, the circumstances in which it is proper for someone to be admitted compulsorily to hospital. Depriving someone of his or her freedom is a very serious thing to do. The Mental Health Act 1983 reflects Parliament's best sense of the criteria to be satisfied and the procedures to be followed before such a step is taken.

While the Act as a whole commanded the support of Parliament, and I hope still does, there were in 1983, and still are, genuine differences of view. Some think that the 1983 Act has made it too difficult to have clearly disturbed people admitted for treatment against their will. Others think that present arrangements do not offer sufficient protection against continued compulsory detention in hospital. In the end this is very much a matter of personal judgment.

The code of practice does not of course amend the 1983 Act. Rather, its purpose is properly to reflect the Act while offering practical guidance to those who have to operate it in their daily work. I make this point because it is fundamental to how we have approached the task of drawing up the code —seeking the widest possible agreement on good practice within the terms of the Act.

Initially the task of preparing a draft was given, with its agreement, to the Mental Health Act Commission, which includes representatives of all the relevant professions and informed laymen and women. The commission produced a draft which had much to commend it, but which also attracted considerable criticism. This was no reflection on the commission. Rather, it was a reflection of the sheer difficulty of producing practical guidance that was widely acceptable where there are strongly held differences of opinion.

Officials in the Department of Health studied the many comments on the Mental Health Act Commission's draft very carefully, and produced a second draft, upon which there was further widespread formal consultation. Although it is hard to sum up in a sentence reaction to this second draft, it is probably fair to say that the draft met objections to the first one by becoming more a commentary on the Act than a practical code of practice.

Ministers concluded that it would not be appropriate to lay the second draft before Parliament, and last spring decided to establish a small working group of professional people with extensive personal experience of working the Act, to consider both drafts and the comments received upon them and to produce a further draft.

That working group, chaired by Mr. James Collier, produced the draft which was laid before Parliament on 5th December. In the course of its work the group took soundings, informally, of a range of the key interests, and has produced what Ministers regard as a well balanced, potentially very useful code, entirely consistent with the Act. Although the Minister concerned, my honourable friend the Parliamentary Under-Secretary of State for Health, Mr. Freeman, has thanked the members of the group personally, I should like to add my thanks and express the Government's appreciation for the hard work which has led to this draft.

Despite the fact that the code is the product of extensive consultation —two formal rounds and subsequent informal soundings over four years —and careful deliberation by people with direct, practical experience of working within the Act, it is true that there are aspects of it that some would wish to see amended. My noble friend Lord Mottistone referred to some points that are of concern to the National Schizophrenia Fellowship. We know that other bodies, such as the Royal College of Psychiatrists and MIND, would also prefer that some sections had been drafted differently.

The truth here is that the issues involved are such as to make it unrealistic to meet everyone's point of view to the letter. There are incompatible points of view, for example, over the extent to which wards containing detained patients should be locked. I would ask that the adequacy or otherwise of the present code is not judged by whether this or that body objects to particular phrasing or emphasis, but by whether, taken as a whole, it is felt to be a balanced and useful aid to those who have to work within the Act. I am convinced that those Members of this House who have the interest and opportunity to read the whole document will agree with us that it is. The Royal College of Psychiatrists has written to me, and I quote from the same letter as was received by the noble Lord, Lord Ennals: The Royal College of Psychiatrists has studied the code in detail and although there are some minor flaws, we do not consider that it would be beneficial, either to health professionals or to patients, to withdraw the code". I also stress that the code is not fixed for all time. The Government have already asked the Mental Health Act Commission to advise them regularly on the operation of the code, and to propose any changes that experience shows to be desirable. Ministers will then consult on the commission's recommendations, in conformity with the Act, and if the Government judge it appropriate, they will be laid before Parliament in the form of amendments to the code.

I turn now to the specific points raised by my noble friend Lord Mottistone. First, there is my noble friend's point about reasons for compulsory admission. I accept that the first sentence of paragraph 2.6 could usefully have been expanded. However, the last section of that paragraph says that the applicant should judge whether the criteria stipulated in any of the admission sections of the Act are satisfied. This is reinforced in paragraph 2.18c. I hope that my noble friend will see that the code does in fact reflect the Act.

Secondly, there is the issue of care for patients detained in hospital. The noble Lord prefers the Scottish version. We believe that our draft offers much fuller practical advice to professional staff, who have the very difficult job of judging what degree of security detained patients need from time to time.

Thirdly, the noble Lord refers to what the nearest relative should know. I agree with him that the words "where necessary" in paragraphs 2.27 and 2.30 are very definitely ambiguous. They are meant to indicate that, where a nearest relative is unaware of his or her rights, professional staff should inform him. But, as the fellowship has proved, they can be read a different way. The proper meaning will be made clear in the letter that will cover the issue of the code and we shall consult on a better form of words.

I should like to suggest that my noble friend withdraws his Prayer upon the following undertaking. Ministers will ask the Mental Health Act Commission to consider in detail the points that he has raised today, and advise upon them as part of the first report on the operation of the code. Ministers will then consult upon them and, in the light of the response, judge whether or not to lay amendments before Parliament. The aim would be to complete this process within one year. Perhaps I could also say that that offer is extended to all noble Lords who have spoken in this debate. I believe that that covers all parties in the House and of course the noble Lord, Lord Ennals.

If, after advice from the commission and further consultation, Ministers decide not to seek to amend the code as the noble Lord proposes, the responsible Minister, my honourable friend in another place Mr. Freeman, will write to him and to the other noble Lords I have mentioned setting out his reasons. In any case the Minister would be happy to meet my noble friend and representatives of the National Schizophrenia Fellowship at an early date to hear their concerns at first hand. I hope that the House will regard this as a positive and constructive proposal, made in good faith in response to points raised by an organisation for which we all have much respect. On that basis I hope that my noble friend will agree to withdraw his Prayer.

In conclusion, may I emphasise the intrinsic difficulty of what lies at the heart of both the Act and the code. We must balance the rights of the individual suffering from a serious mental illness with the need to protect him or her from the consequence of that illness. Taking such a decision is extremely difficult. We believe that this code gives good, well balanced practical advice to those who have the responsibility. I therefore commend the code to the House.

Lord Mottistone

My Lords, I start by congratulating my noble friend for the most admirable way in which she made the whole of her speech. I thought that for a first go at this sort of thing, with rather hardy people arguing about mental health, it was a jolly good speech.

I thank her and indeed my honourable friend the Minister, Mr. Roger Freeman, very much indeed for the many undertakings that they gave to me and indeed to the National Schizophrenia Fellowship. I do not think that they could have gone any further, short of withdrawing the code and I did not expect them to do that. I am extremely sorry that some noble Lords have not read the Scottish code, in particular the noble Lord, Lord Ennals. I am sure that it would do him a power of good to do so, for then he would see how much better it is than the English code.

Having said that, and having very much appreciated all the contributions that many noble Lords have made to this debate, I beg leave to withdraw my Motion.

Motion, by leave, withdrawn.