Mental Health Bill [HL]

Committee (2nd Day)(Continued)

Debate on Amendment 43 resumed.

My Lords, I will speak to my Amendment 44 in this group. Having listened at Second Reading, I was minded to table this amendment based on my noble friend Lady Parminter’s speech giving her real-life experience of the need for community treatment orders. Both the amendments and the Second Reading debate show the wide range of views on community treatment orders, ranging from some who feel they are not needed to those who feel that they are needed and those who feel a review is needed. However, something in the present system is not quite right, so, again, this is a probing amendment to try to understand where the Government’s thinking is.

Given that, even if a review were to take place, CTOs would still exist, my amendment would in principle provide an initial 12-month period for a community treatment order with some very clear provisions. If we are going to have these provisions, they need to be on the face of the Bill rather than in the code of practice—even if they are not the provisions in my amendment. I suggest that the initial order is for 12 months and that, before the order is made, the patient has to be consulted, as well as

“the patient’s nominated persons, and any relevant mental health care professional involved in the patient’s treatment or care planning”.

Importantly, the CTO has to be in line with the necessity for therapeutic benefit, and it has to involve consulting a second medical professional. I understand that the wording of the amendment may not be correct, because a particular type of medical professional, a psychiatrist, would need to be consulted with regards to the community treatment order and whether it will have therapeutic benefit.

I suggest that, at the end of the 12 months, if the clinician feels that an extension is needed, a review takes place, which goes through the process that I have just outlined—to ensure that there is therapeutic benefit, and a second medical practitioner is consulted—and that it is then reviewed after a maximum of six months. That is absolutely right in terms of trying to ensure that the therapeutic benefit is central and a second medical opinion is provided, particularly at the review stage, to ensure that there is a need for the CTO. The reason for this is the wide range of views on CTOs but also the statistics regarding the racial discrimination that there appears to be around their use, which is well documented and well evidenced.

I look forward to the Minister trying to explain the Government’s thinking on community treatment orders and how they need to change. Clearly, something is not quite right in the implementation, the length of time that people are on CTOs and whether CTOs have therapeutic benefit for many of those who are on them.

My Lords, I will speak to my Amendments 67 and 86. I think that this is the right place—I apologise for my earlier confusion; I had a problem with the list.

I will start with Amendment 86 because it follows on from the very important contribution from the noble Lord, Lord Scriven. I should preface this by saying that I cannot claim that what I will say originates from me; it is based on the Law Society briefing, which many noble Lords will have received. I saw that nobody else had picked up this amendment, but I thought that it was so important that it should be picked up. As the explanatory statement says:

“The amendment would keep the safeguard of an automatic referral to the tribunal when a patient’s Community Treatment Order is revoked which results in them being detained in a mental health hospital”.

As the noble Lord, Lord Scriven, said, a range of views on CTOs has been expressed in these debates, but the general direction of travel is certainly not to remove safeguards and we should be keeping the safeguards that already apply. I will not claim great expertise on this, but it seemed to me that this is an important issue that we need to discuss in Committee.

Amendment 67 is somewhat different but really important. Later on, we will discuss very important issues, which I have signed amendments about, concerning minoritised communities being potentially overtargeted or subjected more to mental health provisions. This amendment picks up something that no one else has picked up, which is economic and social disparities relating to community treatment orders. I went looking for some statistics on CTOs in disadvantaged communities, but I was not able to split them out; perhaps the Minister has them. However, the charity Rethink Mental Illness talks about the burning injustice of how Mental Health Act detention rates are three and a half times higher in the most deprived areas of England compared with the least deprived. Looking at those figures, I can only see that CTOs must be something very similar to that.

My Lords, I wanted to speak to this group because I made some harsh criticisms, on principle, of community treatment orders at Second Reading concerning their coercive and intrusive nature. Since then, perhaps similarly to the noble Lord, Lord Scriven, I have had cause to think again, not least after speaking to a number of working psychiatrists and taking on board the comments of the noble Baroness, Lady Parminter, at Second Reading, which really had an impact on me. It is quite unusual to change one’s mind in this place—maybe it is just me—so I wanted to note that.

I was reminded of this issue by practitioners—I was once one of those—when they said, “We worry about how many idealistic discussions about mental illness just do not take into account the reality of chronic mental illness”; I thought that was a fair reprimand. There are a group of people who are chronically symptomatic, perhaps some of them may never be well, and CTOs are a way to allow people to leave hospital who otherwise clinicians might worry would be too risky to release.

I have been thinking about this issue and in that sense was happy to see and support Amendment 44 in the name of the noble Lord, Lord Scriven, which sets out time limits. It is useful to think about probing time limits, renewal safeguards and so on, because one does not want automatic continuation and therefore indefinite CTOs on the books, which is what people are concerned about.

I would have been more enthusiastic about Amendment 66, put forward by the noble Lord, Lord Kamall, and the noble Earl, Lord Howe, which calls for a statutory review of CTO use, but the wording implies that CTOs are problematic per se. Perhaps we need a more open-ended review, because one of the reasons why CTOs are so contentious for so many people is their spiralling and increasing use, and we need to understand why that is.

The problem the Bill will have if we do not tackle the new culture that is eroding the distinction between those who require expert intervention and those simply experiencing normal, if unpleasant, emotions or experiences, is that this is reducing time and resources for those who clinically require external help. That cultural climate is sadly leading to a diagnostic free-for-all, an issue I will return to later in Committee. That in turn is stretching community resources so thinly that CTOs become, in some instances, the only guarantee that those who have been ill enough to be hospitalised can access proper community help.

We cannot just propose throwing resources at the problem. We need to know that those resources will be accessed by those who need them, not just those who have acquired a “mental health” label. More and more people are saying this. Noble Lords will have noticed that Tony Blair said something on the issue. It has been commented on recently in terms of the number of people on sickness benefits, the impact on productivity and the mental health crisis. An article in the British Medical Journal made the case against this therapeutic imperative very well, and it is important that we bear this in mind, or the Bill will not succeed in doing what it needs to do:

“There is a down-side to viewing emotional distress in terms of mental disorder. It expands the potential demand for services such as counselling and mental health services at a time when demand seems already to exceed supply. We may be raising expectations that cannot be met. In addition, the belief that one is in some sense mentally disordered might lead to the assumption that some form of expert help is required, and hence undermine the roles of active coping and non-professional support.”

I hope that, as we move forward, we can also tackle the problem of an overinflated sense of the mental health crisis leading to the danger of neglecting the real mental health crisis.

My Lords, I support Amendments 44 and 66. The Joint Committee on which I serve recommended that community treatment orders be abolished for Part II patients. That recommendation is supported by organisations such as Mind. That is partly due to the awful racial disparity statistics—you are up to 11 times more likely to be under a CTO if you are from a black or Caribbean background—combined with a lack of evidence that CTOs reduce hospital admissions. It took a brave gulp, even as the Joint Committee, to recommend that. The independent review had not gone as far as that, but it was in the report of the Joint Committee.

I, too, like the noble Baroness, Lady Fox, recognise the powerful speech of the noble Baroness, Lady Parminter, at Second Reading. I remember that, because of the extremely tight timetable the Joint Committee was given, it did not have time to consider in detail eating disorders or personality disorders, which was regrettable.

I can see from the reasons the noble Baroness outlined that there may be a case for retaining CTOs, perhaps even just for eating disorders. To quote her words from Second Reading, a CTO

“puts a boundary around the eating disorder … that a voluntary agreement could not, in that it makes it clear what will be the result”.—[Official Report, 25/11/24; col. 555.]

The Bill outlines protocols for specific treatments, such as ECT, so it seems possible in principle to have the law apply to specific disorders.

Most reluctantly, I have not made an amendment in Committee in support of the Joint Committee’s recommendation. But the independent review stated that “action is required”. We must not lose sight of that urgency. There are significant problems with CTOs. The argument that is proffered—that they help and are the least restrictive measure for a very small number of patients—is not a good basis for retaining them, bearing in mind the enormous harm they are doing on the other side. I ask the Minister to look for another way, going forward, to help this small group, and not to ask racialised communities to, once again, pay such a high cost for such a small group of patients.

My Lords, I want to say a few things about a couple of the amendments. I thank noble Lords for listening and for recognising the situation. It was powerful to hear that, and I am sure that many in the eating disorder community will be delighted to hear it.

I will not repeat what I said at Second Reading, as there seems no need, but in mentioning that, I want to support the amendment tabled by the noble Baroness, Lady Browning, which picks out the focus on community care and the need for more psychiatrists. I and others have made the case for why CTOs can be valuable for people with eating disorders—and for forensic patients, I understand. The value of the CTO is that the individual is helped to engage in the community with their mental health team. It is a multidisciplinary team, but the anchor is the psychiatrist. The noble Baroness was not sure if this was the right place to put her amendment because it has wider ramifications, but it certainly has value in this debate. CTOs, which I believe should be retained, can work only if there are proper multi-disciplinary teams anchored by a psychiatrist in the community, so that those individuals can be kept out of detained settings and engaged in the community. I thank her for bringing that forward, and I support it.

With regard to Amendment 44, I do not support a maximum duration for a community treatment order, because this is about the individual and what they decide, with their multidisciplinary team. What I like about the amendment tabled by the noble Lord, Lord Scriven, is that it rightly says that we have to review community treatment orders. People’s mental health situations change, and it is important to have step points at which people know they will be reviewed. I do not support a maximum time limit but the break points, which his probing amendment talks about, are worthy of further debate and discussion. I am grateful to him for bringing that forward.

I say with regret that I do not agree so much with the support of the noble Baroness, Lady Bennett, for retaining the automatic referral to a tribunal of any CTO that is lifted. Again, that goes against my sense that CTOs are about what is right for the individual. With eating disorders, there will be cases of CTOs being lifted because the person is no longer able to engage with the community team because the eating order has gone beyond the bounds of the CTO and is compromising their health and putting them, bluntly, at risk of death. I do not see why, in those circumstances, there needs to be an automatic referral to a tribunal. Strengthening people’s rights to go to a tribunal where there is a case for that is right and proper, but, because of my view about personalised care—especially for eating disorders, but this has wider ramifications—I do not support the case for automatic referral.

My Lords, I thank all noble Lords who have spoken on this group. I will speak to Amendment 66 in my name and that of my noble friend Lord Howe. One of the motivations when we were considering amendments from our Benches was not only to respond to concerns raised by stakeholders but to probe the Government on why they did not accept some of the recommendations of the pre-legislative Joint Committee. That is the nature of these amendments. To the noble Baroness, Lady Fox, I say that the amendment is meant as a probing amendment to ask the Government why they have not adopted all the recommendations of the Joint Committee.

One of the things that drives many of us—I feel particularly strongly about this, given my background—is why so many people of an Afro-Caribbean background are being detained or are subject to CTOs. The noble Baroness, Lady Parminter, made a valuable point. One of the reasons I have tabled other amendments along those lines, which will be discussed in later groups, is that, after all these years of saying that too many people from the black community are being detained, if we want to do something about it, we need data, and we need to understand why they are being detained. Without the data, it is left to rumour or speculation, or people make up reasons. Everything needs to be driven by the data if we are to address the fact that a disproportionate number of black people are detained.

We tabled Amendment 66 because the pre-legislative committee recommended that community treatment orders be abolished for Part II patients, those not in the criminal justice system, and wanted a statutory process and timeline to be put in place for the review and potential abolition—I say those words from the Joint Committee’s recommendation very carefully—for Part III patients, those involved with the criminal justice system.

Many noble Lords came to the Second Reading debate wanting to see an end to community treatment orders, and many noble Lords have spoken tonight about this. We were all struck by the words of the noble Baroness, Lady Parminter, and of the noble Baroness, Lady Barker, who very honestly said that, having listened to patients and families, she knows that there is a small group of people for whom CTOs work, are the least restrictive option and are beneficial, and we should therefore keep them. I was particularly struck by that. The noble Baroness, Lady Fox, said that people do not change their mind very often, but the views that we brought to the debate in the first place have been challenged.

I have since spoken to other noble Lords and corresponded with charities asking whether there is a way to ensure that CTOs are used for, and targeted at, only that small group of people for whom they work. I understand that many feel that this may be a loophole for CTOs to be used in inappropriate circumstances or lead to their disproportionate use. One charity wrote back to me to say that, while it understood the view of those who point to the evidence that CTOs are effective for a small group of people, it pushed back and said that it believed that that was

“outweighed by the overwhelming evidence for most people of their coercive nature, their ineffectiveness in preventing readmission and, above all, the huge racial disparities in their use”.

It added that it therefore still believed that

“CTOs should be abolished for all patients.”