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Mental Health Bill [Lords]

We have only a little time left to consider the final groups of amendments, and I am sure hon. Members who wish to participate are especially keen to comment on the exclusions from mental disorder provisions in the second raft of amendments. I shall therefore speak only briefly about the first raft, and mainly about new clause 11. My hon. Friend the Member for Broxbourne (Mr. Walker) is keen to catch your eye, Mr. Deputy Speaker, to discuss amendment No. 88. The British Association of Social Workers has supported and provided briefing notes for the new clause, which covers warrants to search for and remove patients. It would update the 1983 Act, which is out of date and causes some problems. Section 135 of the 1983 Act allows magistrates, on the application of an approved social worker, to issue a warrant when it is necessary to gain access to private premises to assess someone for possible admission under the Act. Warrants are requested far more often than they were. In addition, court procedures have been tightened up, and the approved social worker now needs to make a formal application to the court, supported by written evidence. That has served to highlight the shortcomings of section 135, which does not reflect the whole range of circumstances in which warrants are needed and, indeed, issued, forcing approved social workers and magistrates to bend the law to ensure that access can always be gained to someone who is in urgent need of admission to hospital. The reason is that the section basically dates from the Lunacy Act 1890 and the Mental Deficiency Act 1913. It has never been updated to conform with modern needs and circumstances. The section provides for a warrant to be issued in only two circumstances: when the person lives alone and is unable to care for themselves, and when the person does not live alone but is being"““ill-treated, neglected or kept otherwise than under proper control.””" It covers only whether the person is cared for, not whether that person needs treatment or is a danger to themselves or others. That is because, back in 1890, there was no treatment. If there was a danger to self or others, it was assumed that the police would use common law to gain entry. However, their common law powers are greatly circumscribed by section 17 of the Police and Criminal Evidence Act 1984, which allows them to enter only in dire emergency"““for the purpose of saving life or limb.””" If, therefore, someone who lives alone harbours paranoid beliefs about their neighbours but can still care for themselves, the professionals have no power to gain access to them to assess the need for admission. They must effectively wait until an assault has been committed and they can then be arrested. By the same token, a warrant cannot be obtained when the person is living with someone else who does not neglect or ill treat them, even if that someone else is a child, infirm or unable to allow access. In some cases, family members, far from ill treating or neglecting the mentally disordered person, are concerned about them and desperate for them to receive treatment but are too frightened of them to let the police and the professionals into the house against their wishes. A high proportion of cases in which access is plainly justified do not fulfil the existing criteria, forcing approved social workers to misrepresent circumstances to obtain a warrant. We have modified the new clause since it was first debated in the Lords to tackle a valid objection by the Minister in the other place that it deleted an existing power to obtain access to someone who needed care other than for mental disorder. The new clause now retains existing powers but deletes the stigmatising phrase ““not under proper control””. As a witness to the Joint Scrutiny Committee put it, inclusion of the phrase made it sound as though we were talking about dogs. The new clause now provides for access to be gained in any circumstances in which it is necessary for the professional to carry out an assessment for possible admission under the 1983 Act. However, it also imposes a new restriction that a warrant can be granted only when it has not been possible to gain access without one. That is designed to prevent the widespread misuse of the current system whereby the police insist on obtaining a warrant even when access has not been denied or it is not certain that that will be the case. We believe that the restriction would require the approved mental health professional to demonstrate to the magistrates that all reasonable efforts had already been made to gain access by non-forcible means. It is therefore likely that the new clause would reduce rather than increase the number of warrants issued. Lest there is a concern about increasing the range of circumstances in which the police can enter private property, it should be noted that clause 228 of the 2004 draft Mental Health Bill—may it rest in peace—which the Government abandoned more than a year ago, contained much greater powers for the police to enter private property by force without a warrant, and purely at the request of an AMHP in circumstances in which a person was in urgent need of care and control to prevent him from causing serious harm to himself or others. Even the extension of police powers that the new clause proposes would not extend as far as that, as a case for forcible access would always have to be made in the magistrates court. The new clause is slightly technical but the law is clearly out of line with current practice and I hope that the Minister will accept it in the constructive and positive way in which I move it.