Contribution
My Lords, noble Lords will be pleased to know that this is a very small, probing amendment, on a matter that was brought to my notice by some forensic psychiatrists. One of their responsibilities is to train young psychiatrists in the use of the Mental Health Act as it relates to patients who have been engaged in criminal proceedings. In this group of amendments, we are talking about transfers between hospitals and prisons and the use of Sections 47 and 48.
Amendment 96 concerns Section 47 removals from prisons to hospitals. The original Act was very straightforward, stating that
“the said person is suffering from mental disorder; and that the mental disorder from which that person is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and that appropriate medical treatment is available for him”.
The new version expands the clause by stating that
“treatment can be given for the relevant disorder from which the person is suffering”.
This is repeated in Clause 34(3).
My immediate thought on reading this was, “What else can an appropriate treatment be except one for the relevant disorder from which the patient is suffering?” Also, why is it necessary to expand this clause at all, on the basis that we should be as straightforward as we possibly can, particularly with people who are using this on a day-to-day basis? If the patient is suffering from another disorder, or the patient is not suffering, how could the treatment possibly be “appropriate”?
I understand from the Explanatory Notes, and from what Ben Coffman, special adviser to the Minister, told me about what the Bill team is trying to achieve, that Sections 47 and 48 are generally interpreted to mean that hospital managers are not formally required to provide evidence that a hospital place is available. If an order is made, the hospital specified is under a duty to admit the patient.
However, there was an immigration case, R (ASK) v SSHD, in which the Court of Appeal ruled that, because specialised provision is required for restricted patients, a physical hospital place must be identified for the detention criteria to be met. This did not reflect the government position at the time, which was that “available treatment” should be interpreted to be the same for all Part II and Part III patients. Therefore, the Government are now changing the wording of this to ensure that a physical hospital bed does not need to be identified. This is how “available” treatment is currently interpreted for the detention criteria across the rest of the Act.
With these few words, therefore, Clause 34 aims to correct the divergence in the detention criteria, as opposed to creating one. Well, I must say that I still do not understand why these few words change the detention criteria. They just add more complexity to the wording. I do not understand why they have the effect that the Explanatory Note says they do. I am asking for greater guidance, because I just do not get it. I wrote to my colleagues saying, “This is the answer I’ve got, so maybe this doesn’t need to be asked”. I got a single line back, saying “What?” They simply did not understand the response. So I am asking again.
Those are all my questions on Sections 47 and 48, relating to Clause 34. There are other amendments in this group to which I will say something, in the interests of not having to bob up again. The noble Lord, Lord Stevens, has two important amendments on the reciprocal nature of transfers between prison and hospital. If what is good for the goose is good for the gander, and if we are going to make it a lot easier to transfer people from prison to hospital, which I very much hope we will, we must be able to transfer people back in the other direction.
I know that this was an issue very close to the heard of the noble Baroness, Lady Watkins, who is not able to be in her place today. She has run wards where that very frustrating situation arises where you have somebody desperate to come into the ward from a prison who has been identified by the consultant, but no space can be made available because somebody is blocking that place. I will therefore be giving my support to the noble Lord, Lord Stevens, on those amendments. I beg to move.