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Session 2006 - 07 Publications on the internet General Committee Debates Mental Health Bill [Lords] |
Mental Health Bill [Lords] |
The Committee consisted of the following Members:John
Benger, Committee
Clerk
†
attended the Committee
Public Bill CommitteeThursday 26 April 2007(Afternoon)[Miss Anne Begg in the Chair]Mental Health Bill [Lords]Clause 4Impaired
decision making: admission for assessment and
treatment
Question
proposed [this day], That the clause stand part of the
Bill.
1.30
pm
Question
again
proposed.
The
Minister of State, Department of Health(Ms Rosie
Winterton):
We are discussing a fundamental issue. In the
other place the spokesman for the official Opposition argued that the
law and the state hadno business interfering in the lives of
patients who retained decision-making capacity, despite being seriously
ill, if the risk that they posed was to themselves; if they posed a
risk to others, that was or should be the province of the criminal law.
As I said this morning, that seems fundamentally wrong. It means the
state abdicating its responsibilities for protecting people suffering
from mental disorder who may be driven to self-harm or even
suicide.
As for people
whose disorder may be putting others at risk, it is true that the
criminal law can intervene,but only after an offence has been
committed. In other words, the Opposition have said, in effect, that
the rights of those patients not to accept treatment are invariably to
take preference over the rights of other people who may become victims.
They have said that the competing rights are not to be balanced, but
that the former is automatically to be given
preference.
I ask the
Opposition to think carefully about attempting to retain the clause. It
really will have a detrimental effect, admittedly, as
the British Psychological Society said, on a small number of people.
However, it is not right that we, as parliamentarians, are prepared to
turn our backs on those people and not get treatment to them when they
desperately need it. That is why I am asking the Committee to reject
clause
4.
Dr.
John Pugh (Southport) (LD): I am delighted to see you in
the Chair, Miss Begg. Although I cannot imagine what you have done to
hold such a positionfor the whole of Thursday when you were
not even assigned to chair the Committee, I am pleased tosee
you.
We debated
exceptions the other day, most ofwhich could be resolved
easily by including a statement of principles in the Bill. The Scottish
Bill excludesany prejudice on the grounds of age, sex, sexual
orientation, religious persuasion, racial origin, cultural
or linguistic background and membership. I could not
help reflecting that, had we had such a statement of principles, much
of our earlier debate could havebeen
avoided.
The clause
that we are considering is verbatim the clause in the Scottish Bill and
the Secretary of State seeks to remove it. In its submission, the Royal
College of Psychiatrists said about the Scottish Bill
that
“We
consider that the Scottish Mental Health Act provides an excellent
model for a new law for England and Wales. The positive experience of
our colleagues in Scotland over the last year and a half has reinforced
this view.”
I am mindful
of the danger that all that we will do in the Committee is repeat the
mantras and arguments of the other place. Despite the copious briefings
that we receive, we shall just be marking time until the real trial of
strength occurs between the Lords and the Government, which to some
extent will mask the real and long battle that has been going on
between the Government and the Mental Health Alliance, where briefings
can simply be used as ammunition and Members of Parliament can be used
as proxies for organisations outside this place and reduced almost to
the state of ventriloquist dummies whereby discussions can be
choreographed and so
on.
I genuinely
believe that that is a waste of our time. It is a misuse of what is
obviously a talented, informed and able Committee. A Public Bill
Committee hasvery real strength. We cannot rival their
lordships’ eloquence or eminence—[Hon.
Members: “Come on.”] Well, some of us cannot.
There is far more interchange and challenge and more probing questions
are asked in a Public Bill Committee, as we found out this morning. I
was struck by the lack of interventions in the Lords’ debate and
the rather respectful audience that they gave one another. That is fine
if one wants to state a case, but less good for exploring, analysing
and defining points of difference.
One of the best speeches in the
House of Lords was from Baroness Murphy, whose
contributions throughout the debate were splendid. She is a
psychiatrist, and she said of the amendment—which is now clause
4—which might puzzle some members of the
Committee:
“I
do not believe that the amendment will change who is detained and who
is compulsorily treated”.—Official Report, House of
Lords, 10 January 2007; Vol. 688, c.
234.]
That may puzzle some
members of the Committee. It prompts one to ask what all the fuss is
about.
Dr.
Pugh:
Clearly, the Government and the Mental Health
Alliance think that there is an important issue, as there are two
conditions in the 1983 Act for the detention of a mentally ill person.
One, obviously, is having a severe mental disorder; the other is to be
seen or judged to constitute a risk to oneself or others.
Essentially, the amendment would add a third
condition—that the individual has impaired judgment about his
medical treatment.
The
Government want to insist that it is perfectly safe to leave just the
two conditions in place. They argue that to add the other condition
would make matters worse because mentally ill patients whoare
judged at risk will be left free to commit suicide and, less commonly,
to harm others.
The key question is who we are
talking about here. Could there be people who are judged to be a
serious danger to themselves and others who are diagnosedas
mentally ill and who are possessed of unimpaired judgment? I wanted to
define where people stood on that issue, so I wrote to a number of the
bodies that contacted me and asked if there were such people and what
they were like—we explored some differences in the debate this
morning.
Mind wrote
back to me saying that it was hard to imagine that there were such
people; the British Medical Association said that it was entirely
possible that there are such people. The Royal College said not in most
cases, although there will be some dangerous people who coincidentally
will have mental problems. Lewis Appleby at the Department of Health
said yes, there definitely were such people. The Law Society, in
submission MH20 said that it was axiomatic that if one is dangerous and
disordered one is mentally impaired.
The British Association of
Social Workers in submission MH25
said:
“If a
person’s judgement is not impaired, they cannot be suffering
from a serious mental
disorder”.
Baroness
Murphy said that
“many
if not all”—
of
the people who pass on the first two
criteria—
“will
have impaired decision
making”.
Baroness
Barker, Earl Howe and the Royal College of Psychologists said,
explicitly, that there would be some without impaired decision making,
who should be allowed to act freely. They took what the Secretary of
State described as a libertarian
position.
The
interesting thing about the variation of views is that it genuinely
does not depend on whether someone is for or against this Bill, which
leads me to surmise that there is an element of confusion about what
weare discussing. I posed the question whether impaired
judgment is not by itself clear, and I considered whether I could make
it any clearer. It is not defined in the Scottish Act, although it is
in the guidance, but when Baroness Barker introduced the amendment she
contrasted the lack of decision-making ability and capacity with
impaired decision making. On the other hand, Professor Richardson, in
her submission MH22, said almost precisely the opposite, talking
of:
“our desire to see
the introduction of an incapacity criterion.”
All this is less than clear. The Lords
notes distinguish impaired decision making from disorder of cognition,
but in submission MH9, Professor George Szmukler, who is quoted on
several occasions by a number of people,
said:
“‘emotional
elements’ are ... in an important sense
‘cognitive’”.
Even
if it is not clear what effect the Lords amendment would have, it is
fairly clear what it was intended to do—to reduce the pool of
potential detainees, although by all accounts it would do so by only a
small number, and assert the right of patients, particularly those who
are not impaired in their judgment, to have a say in their treatment. I
believe that we all support those laudable and important
objectives.
I share the
concerns voiced through the Lords amendment and in many of the
objections to the Government’s position. We all know the sad
historyof full-frontal lobotomies, for example, that were
performed on people who did not know that they were being done. We know
more recently of overdoses of Largactil and so on, with all kinds of
adverse effects on people’s physical health that had not been
anticipated and were not properly explained to
them.
The clause is
supplementary to, not a replacement for, the two conditions laid down
in the Mental Health Act 1983. Many of the fears that have been
expressed about not including the clause could relate equally to how
that Act has functioned. To some extent, we are now seeing how it has
functioned, and we have had24 years’ experience of it.
The addition of a third condition to that Act, that of impaired
judgment, would by all accounts exempt a limited number of people who
also satisfy the other conditions. So it cannot by its presence or
absence significantly affect the number of people
likely to be sectioned by psychiatrists, unless psychiatrists start
behaving markedly differently from how they have behaved for the past
24 years.
However, the
clause makes an important pointabout patient autonomy and
choice, and it underlines and makes explicit the connection between
cure and consent. Provided that the Government’s fears are not
realised, and people judged a threat to the health and safety of
themselves or others under the 1983 Act are not allowed to commit
suicide or an aggressive act on somebody else by virtue of their mental
disorder, there seems no major harm in leaving the clause in the
Bill.
We must address
the Government’s fears, as they have been put seriously. I tried
to follow the argument as fairly as possible, and there are
fundamentally three categories of response to what the Minister said.
The first is that her fear is groundless; there is no category of
people about whom we need to worry. The second is that responding to
that fear by removing the clause would generate more unnecessary
incarceration than one would expect and certainly more than it is
worth. If it prevented one ill, it could create a worse ill elsewhere.
The third response is the more radical one given by Baroness Barker and
Earl Howe—that we must put up with the current state of affairs
on the grounds of civil liberties. When individuals defend the clause,
they sometimes select one of those responses and sometimes give all of
them.
I have said
enough about the first two responses, so I shall turn to civil
liberties. One can fairly claim the right of an individual to commit
suicide by virtue of their mental illness. I do not, but one can make
that point and it is intellectually defensible. Nearly everyone would
hesitate to claim the right of an individual,for instance a
stalker, to harm and harass another individual by virtue of their
mental illness. It is often pointed out when dealing with civil
liberties that sane people, or those with no mental disorder, commit
suicide and do wrong things, and that, hey, there is criminal law out
there. That is a slightly glib response, because it depends on
believing that people who are mentally ill and those who are not
possess the same personal and moral autonomy. I cannot in all cases
believe that.
If an
individual with a diagnosed personality disorder were treated simply as
a common criminal, we might have some reservations. Do we not believe
that
mitigating conditions might apply, or ought to apply, if someone has a
diagnosable mental disorder? Why do we believe that, and what remedies
do we
have?
1.45
pm
The Joint
Committee looked at the thorny issue of untreatable personality
disorders. I do not have the quote to hand, but I do not think that it
is unfair if I summarise a crucial passage of the Committee’s
findings. It said, “Yes, this is a residual problem, but that
must be left for other legislation.” However, it slightly sold
the pass by failing at that point to tell us what such legislation
would look like and whether or not it would involve mental health
legislation.
Ms
Winterton:
Would the hon. Gentleman address the point that
outwith the criminal justice route, one of the things that we want to
do is to prevent people from offending to reduce offending rates.
Therefore, unless someone’s judgment is impaired, we are
allowing them—perhaps when they have not
offended before—to go ahead and commit an offence because we are
saying that we cannot intervene. That is the other side of it. It is
not just about someone committing an offence but about getting help to
them before they have done that.
Dr.
Pugh:
There are obvious concerns about
pre-emptively acting to prevent people from committing an offence that
they have not as yet started to commit. Lawyers can comment on that
issue far better than I can. However, I accept that the Minister has
made a perfectly decent point.
This is not an easy issue.
Anyone who pretends otherwise is being simple-minded. According to my
account—I do not think that it is an unfair account—the
Government and the Mental Health Alliance are not as far apart as it
might seem. However, simply removing the clause leaves the issues
unresolved, the differences unexplored and sends out all the wrong
signals.
Ann
Coffey (Stockport) (Lab): I am a member of the
Modernisation Committee, which produced the report proposing to set up
Public Bill Committees and emphasising the importance of
pre-legislative scrutiny. We also do not do enough post-legislative
scrutiny in the House, particularly on Bills such as this. Questions
such as those rightly raised by the hon. Member for Southport about the
1983 Act could be answered if we had more information or had examined
since 1983 how the Act operated and was implemented. We do not have
that degree of knowledge, so we have to predict the consequences of
legislation.
My right
hon. Friend the Minister has a point when she says that by leaving in
clause 4 and enforcing the Lords amendment in a rigid way, a very
difficult group of people, who are difficult to help, might be denied
help. That is a very strong consideration. We cannot divide the problem
into those who self-harm and those who harm others because, as my hon.
Friend the Member for Stafford pointed out very coherently this
morning, they are often the same people. The people who jump off the
motorway bridge in my constituency into the path of a car not only lose
their own livesbut endanger the lives of people travelling
along the motorway. The same thing applies to people who jump
in front of trains. The act of suicide can in itself bea very
aggressive and angry act from people whohave had a very
disturbed background. Therefore, the interests of people who harm
themselves and the wider community are interlinked.
Although I understand the
reasons behind the separate test, I am not sure that it is totally
necessary. Two weeks ago, I went out and spent time with approved
social workers from one of the London hospitals, and witnessed a mental
health assessment. It was clear to me that the issues of mental
disorder and capacity were interlinked in how the two psychiatrists and
the approved social worker conducted that interview. What they brought
to the interview was several years of training and experience. As has
been said, mental disorder, or the continuum on which somebody is
disordered, is not easy to identify; one cannot take such
people’s temperatures or see whether they have a rash.
Ultimately, the matter depends on clinical experience, which is why I
do not understand where the Royal College of Psychiatrists is coming
from on this matter. It is very jealous of its professional expertise.
Some clauses that we will talk about later argue for the retention of a
central role for psychiatrists in assessment because of their
expertise, which they cannot be substituted by anybody else. I am not
sure why the royal college wants to have that flexibility to make
clinical judgments taken away from it, in effect, by putting a test
about a test about impaired decision making—nobody knows what
that means—in the Bill.
There is also another
issue that we should consider. The professionals who will work in
mental health will also work in other areas that will be governed by
the Mental Capacity Act 2005, which comes into forcein January
2008. Psychologists, psychiatrists, mental health
workers and community nurses will all implement that Act, which, as
everybody knows, sets out the definition of a person who lacks
capacity. It focuses on a particular time when a decision has to be
made, and on the particular matter to which the decision relates. The
Act states:
“It
follows that a person can lack the capacity for the purposes of the Act
even if the loss of capacity is partial or temporary or if his capacity
fluctuates.”
I am reading
out the provision because it goes into some detail about what the
criteria are for lack of capacity. The so-called diagnostic test picks
up a range of problems such
as
“psychiatric illness,
learning disability, dementia, brain damage, or even a toxic
confusional”
state. Those
are the same areas in which psychiatrists and approved social workers
will make judgments in mental health assessments. That is underlined by
a very strong set of statutory principles that apply to the Mental
Health Act.
Administering or implementing
the 2005 Act will lead to those professionals having a shared view of
what capacity is, and sharing their clinical experience through case
studies and case law. That is a very important process, and it is a
welcome Act. However, the problem is how that process would sit with
clause 4, which takes in impaired decision making. Part 4 of the Mental
Health Act 1983, which is about consent to treatment, uses the term
“capacity”. In other words, somebody has to make a
decision about consent to treatment. The decision will be either that
the patient is
not capable understanding the nature, purpose or likely effect of the
treatment, or that the patient does not consent to it. It is all about
issues of capacity. It will be difficult if clause 4 introduces
provision about impaired decision making, however, but part 5 of the
Act, which is about consent for treatment, talks about capacity. The
words that we put in the Bill and what they mean are very important,
and that will lead to
difficulties.
Further
confusion may arise in another area, in which I envisage—I am
not a lawyer—that many in the courts and mental health tribunals
will be interested. If somebody with learning disabilities also has a
mental disorder and is being assessed for treatment under the Mental
Health Act, they will already have been assessed under the Mental
Capacity Act 2005 for capacity in decisions relating to other areas of
life, such as finance and so on. They will then attend an assessment
for treatment under the Mental Health Act, in which the criterion is
whether they have impaired decision making, which is different from
having the capacity to make decisions. Even though people say that the
terms are the same, they are different words, and therefore mean
something different. They canand will be interpreted
differently by the courts. If impaired decision making is a higher
obstacle, therefore, someone with learning disabilities who has been
deemed incapable of making decisions underthe Mental Capacity
Act could be refused treatment under the Mental Health Act, as they
would still be considered as satisfying the clause 4 condition, as that
is different. I do not think that we can have two different tests in
this area.
The way
forward is to see how the Mental Capacity Act is implemented when it
comes into force in 2008, as I think that it has some implications for
the Bill. The hon. Member for Southport seemed to say that he did not
think that it made a great deal of difference. In that case, to avoid
confusion, I suggest that the best way forward is to remove clause 4
from the Bill until we can see the results of the implementation of the
Mental Capacity Act, and not add further confusion tothis
area.
I will just
make a final plea. Legislation is not perfect, and I am a strong
believer that we should leave as much flexibility in legislation as
possible concerning the decision making of people who will have to
operate it on the ground. We should not be in the business of having
tick boxes or setting obstacles for people to overcome. We should set
standards for them, have confidence in those standards and let them get
on with the job that they have chosen to
do.
Tim
Loughton (East Worthing and Shoreham) (Con): I welcome you
to the Chair, Miss Begg, for the second time today, which certainly
needs endurance.
I
should like to set out the parameters of wherewe stand on this
issue, and try to address some ofthe Minister’s points.
There is a clear differenceof principle, and the clause was
added in the House of Lords after a great deal of deliberation; it was
not just thought up on a wet Friday afternoon. “Impaired
decision making” is not some clever little phrase that someone
has come up with; it has been thought about over many years by the
Mental Health Alliance of professional service users and providers.
“Impaired
decision making” is a recognised phrase, and most, if not all,
professionals know where they stand on it and what it
means.
Mr.
Kidney:
Will the hon. Gentleman confirm that, in
accordance with the explanatory notes to the Bill, there is no legal
precedent for that
phrase?
Tim
Loughton:
As the hon. Member for Stockport has just said,
she wants to leave the decision to the professionals at the sharp end
who are providingthe services to people, and we should rely on
their judgment and their interpretation of these phrases. All the
professionals who have made representations, and all those represented
in the Mental Health Alliance—I need not list them all
again—are in accord with having a clause about impaired decision
making.
Ms
Winterton:
Has the hon. Gentleman seen the latest letter
sent to members of the Committee bythe Royal College of
Nursing, which was mentioned yesterday as part of the enormous number
of professional bodies in this area? He says that all professionals are
agreed, but I will just read to him from that
letter:
“Nurses
are bound by a code of conduct and professional ethics to do all they
can to prevent harm. We could not support any legislation that could
impede our members in their primary aim of preventing foreseeable harm.
We do appreciate the Government’s concern that the amendment
relating to the absence of ‘impaired judgement’ could
enable service users to take decisions that may have tragic and
regrettable consequences for their families and themselves. It is
imperative that our members work within a clear and unambiguous
legislative framework which will enable them to provide appropriate
care and treatment in situations of obvious moral, legal and ethical
complexity.”
I understand
that the letter has been sent to members of the Committee
today.
2
pm
Tim
Loughton:
I am grateful; I have not seen that brief. Of
course, nurses will not make decisions on
sectioning.
Tim
Loughton:
No, those nurses will not be making decisions on
sectioning or the renewal of sectioning under the amendments that we
have supported in the Lords.
Tim
Loughton:
Yes, absolutely. That is entirely consistent
with what we are saying. If the Ministercan quote similar
comments from the Royal Collegeof Psychiatrists or the British
Medical Association, perhaps that would show that I am wrong, but why
have all the submissions that we have seen and all the
deliberations in the Mental Health Alliance supported the inclusion in
clause 4 of “impaired decision
making”?
Ms
Winterton:
I should like to draw to the hon.
Gentleman’s attention a note that was attached to a letter dated
November 2006 from members of the Royal College of Psychiatry, Dr. Tony
Zigmond and Dr. Ian Hall. It stated that the college
wanted
“to see patients
having the freedom to decide whether or not to accept medical help if
they retain decision-making capacity... We know some colleagues
have some reservations about
this.”
The hon.
Gentleman will find that there are many different views on the subject,
but it boils down to whether there is an agreement that, if somebody
does not have impaired judgment, they should be allowed to go out and
commit suicide or, in some cases, harm others. That is the long and the
short of it. There are certainly different views within the profession;
it is our job to decide which side of that argument to come down
on.
Tim
Loughton:
Perhaps the Minister will name those members of
the Royal College of Psychiatrists or the BMA who take that
view.
Ms
Winterton:
I have a list of about 10 psychiatrists who
have signed up to a letter—I do not have it in front of me, so I
shall come back to it in my winding-up speech if the hon. Gentleman
allows me to—saying that the issue of impaired judgment is
extremely important, because some people will not get treatment. It is
important to recognise that there are those who
disagree.
Tim
Loughton:
Will the Minister tell us how many members of
the Royal College of Psychiatry or practising psychiatrists there are
in this country? She refers to a list of 10 signatories to a
letter—presumably, the same people whose names she trotted out
when challenged on various occasions to find practising psychiatrists
who would support some of the measures in the Bill. If she claims that
there is widespread support for her view, she needs to produce the
evidence.
[
Interruption.] The situation
is that out of 80 members—[Interruption.] I do not know
whether Minister wants to listen; I am trying to respond to the point
that she made to me. The Committee is trying to scrutinise the
evidence. [
Interruption.
] The Committee should be
scrutinising the evidence in support of our scrutiny of the
legislation. If Government Members want to scrutinise the legislation
in the absence of any evidence—in a factual void—we are
coming at the issue from different
viewpoints.
Is the
Minister seriously trying to claim that there is a large body of people
who share her position? Of course there are individuals who will take a
different view, but 80 organisations, representing thousands of
professionals, service users and service providers, have signed up to
an amendment in favour of the inclusion of “impaired decision
making”, which went into the Bill in the Lords. The balance of
argument from
those organisations is therefore in favour of “impaired decision
making”, which is against what she has proposed.
A note from the Royal College
of Nursing on behalf of people who will not be making those decisions
has gone round today, although nobody has seen it, and there is a list
of 10 people with a different view, whose names the Minister cannot
quite put her hands on, but who I am sure do exist—I shall give
her credit for that. That is a small number. That is precisely the
point that I am
making.
Dr.
Gibson:
Will the hon. Gentleman tell us about the decision
of the Royal College of Psychiatrists? At which meeting did this
understanding come to him? How many people voted? Was there an annual
meeting, a ballot or what? If we are going to penetrate how decisions
are made, let us do it
openly.
Tim
Loughton:
The hon. Gentleman will have had the opportunity
to quiz the representatives from the Royal College of Psychiatrists and
will have seen its official submission. Is he trying to tell us that
what has officially been advanced as its position is not its official
position, or that the majority of its members do not agree with that?
That seems to be the tenor of what he is
suggesting.
Dr.
Gibson:
I am not making the assertions. You are asserting
that you understand that an organisation did this. I am asking you for
the evidence, because you are asserting
it.
The hon.
Gentleman has the evidence in his own files. He will have received the
official submission of the Royal College of Psychiatrists, as part of
the written submission to the Committee, along with everyone else.
However it came to that decision—whether the psychiatrists all
got together in a big room or whether it was made by a committee on
their behalf—is the hon. Gentleman seriously suggesting that the
Institute of Psychiatry, or any other organisation that is part of the
Mental Health Alliance, has a little clique or minority in control that
has advanced a view that is not shared by the majority of the people
whom they represent? [
Interruption.] I will read these
notes shortly. If so, I suggest that the hon. Gentleman takes a dim
view of the way in which the Royal College of Psychiatrists and other
medical professionals behave, and I am surprised about
that.
Mr.
Charles Walker (Broxbourne) (Con): I have the brief from
the Royal College of Psychiatrists in front of me: it says that the
royal college is a member of the Mental Health Alliance and agrees with
its briefing. It agrees with everything. The Minister seems to suggest
that it is not in agreement. [Interruption.] She is
quoting psychiatrists who, somehow, do not seemto be in
agreement with the position taken by their professional
body.
Tim
Loughton:
Indeed. I have had the privilege of a little
in-flight refuelling, which the Minister usually has the monopoly on.
The position of the Royal Collegeof Psychiatrists was decided
on democratically, by democratically voted-for representatives who are
entirely answerable to their members. That strikes me as pretty good. I
am confident from my conversations with practitioners and
representatives of the Royal College of Psychiatrists that the briefing
that both the hon. Gentleman and I have received represents its
official position and that of the great majority of its members, even
though there may be at least 10 out of many thousands who do not sign
up to that. I am prepared to go with the majority. An awful lot of the
Government’s approach to the Bill appears to be predicated on a
vociferous minority that happens to agree with the Government, but it
is very much a
minority.
Tim
Loughton:
I will give way to the Minister first, then to
my colleague—and I have only read the opening paragraph of my
notes.
Ms
Winterton:
Does the hon. Gentleman accept that what we are
saying leads on from what the Royal College of Psychiatrists said? It
has told me quite openly in a meeting that we have to accept that some
people will not get treatment as a result of the impaired judgment
test. The Royal College of Nursing very quickly said at our meeting
that it did not agree that that is the right approach to take. That is
why it has been very keen to ensure that members of the Committee
understand that it believes that approach to be bad. It believes that
people should be helped, if needed, which is why it has been so keen.
Let us remember that community psychiatric nurses and others will be
the ones doing such work. For example, they will be involved in the
renewal of detention, so their views should be taken note
of.
Tim
Loughton:
By the same token, there are many sufferers from
mental illness who will be admitted by compulsion for treatment that
will be counter-productive. We can come on to that as well. The
Minister is predicating all her argument on treatment working. For
many, it does not, and for many, it can be counter-productive. That is
what I want to come on to, when I get to my
speech.
Angela
Browning (Tiverton and Honiton) (Con): I am grateful to my
hon. Friend, and I hope he enjoyed the little billets-doux between
us.
Angela
Browning:
The story of my life. The hon. Member for
Stockport began her contribution by suggesting that the debate would be
better informed if we were able to scrutinise post-legislative
examples—in
this case and clause we can. The Mental Health (Care and Treatment)
(Scotland) Act 2003 includes a clause on impaired decision making, as
well as one on capacity, although in the Scottish legislation it
iscalled “incapacity”, while we have chosen to
call it “capacity”. We might have hoped that the
Government would have learnt from the very real experience of an Act
passed in 2003, not ignored it, particularly when that Act provides for
impairment as well as
incapacity.
Tim
Loughton:
My hon. Friend makes a very good point. Based on
the Government’s logic, there should have been an increase in
the number of suicides in Scotland, for example, if what the Minister
is trying to warn us of is true. I am not aware of any increase in the
number of suicides in Scotland. My impression is that there has been a
small fall, in line with the rest of the United Kingdom. I do not
understand, if something appears to be okay in Scotland and working,
why it is going to give rise to all sorts of horrors if we enact it in
the
Bill.
Mr.
Tim Boswell (Daventry) (Con): Does my hon. Friend not
agree that one of the reasons why patients or potential patients may be
reluctant to submit to certain treatments, certainly if imposed on them
compulsorily, is their prior experience? For example, they may have
offered themselves as voluntary patients and found the likely
medications prescribed not only extremely unattractive, but with very
damaging or alarming side
effects.
Tim
Loughton:
My hon. Friend is absolutely right, and I should
like to elaborate in a minute if hon. Members would allow me to make
some of my points. We seem to be having a bit of an argument about the
veracity of certain of the evidence before us. I want to counter the
Minister’s points and justify why clause 4 should remain in the
Bill.
I am sure that
all hon. Members agree that weare approaching the issue from a
point of non-discrimination, which should be the basis of all health
treatment and certainly of mental health treatment. Enshrining the
principle of non-discrimination andthe non-stigmatising
approach in mental health lawis important and is all about
protecting those with capacity who are capable of making their own
decisions from being forced to undergo treatment or medication to which
they object and that, in some cases, may have side effects and not be
beneficial to their physical health. I will come on to that in a
minute.
Whatever the
Minister says and however many letters she pulls out, the Government
are in a position of relative isolation. The Government’s expert
committee, under Professor Genevra Richardson, came out in favour of
such an approach. She stated:
“Patients should not be
subjected to compulsory treatment against their capable wishes simply
in the interests of their own health or for the avoidance of annoyance
to others. To do so would be to discriminate unjustifiably against
mental as opposed to physical ill health. If we are to apply the
recognised principlesof health care equally across mental and
physical disorder, it would help significantly to reduce both the
discrimination reflected in the Mental Health Act 1983
and the stigma which
feeds on it. Far from seeking to deny treatment to those who need it,
the impaired decision making condition would place mental and physical
disorder on an equal footing and would begin to break down those
barriers which deter people from seeking the help they
need.”
2.15
pm
I agree with
that and I think that the Minister will agree with the
anti-stigmatisation sentiments behind it. The Government’s own
committee is in favour of the terminology, wording and approach added
to the Bill in clause 4.
Chris
Bryant:
Clause 4, which is being debated almost as much as
the Labour party used to discuss clause
IV—[
Interruption.
] We will not start on
that one. Clause 4 is the only change that the Bill would make to
section 2 of the 1983 Act. I can only presume that the hon. Gentleman
and those who support the change believe that presently there are
people being detained who should not be detained and who should be
granted an exemption by the clause. [Hon.
Members: “How many?”] Who are those people
and how many of them are there?
Tim
Loughton:
A lot of people with autism spectrum disorders
might be affected, as was mentioned. That is why we need new
legislation to update and amend an Act that is now 24 years old. I do
not see the point that the hon. Gentleman is making. I challenged the
Minister this morning on how confident we can be about the prediction
that the Bill will lead to a specific number of lives saved. We cannot
predict that. To get into a ridiculous numbers game is wholly
unrealistic and is in any case unhelpful.
Tim
Loughton:
I shall make a couple of further points and then
give way, although I do not want to speak for as long as the Minister,
who took a lot of interventions.
Let us remind ourselves of what
the Joint Scrutiny Committee said. It stated:
“We acknowledge the
Government’s concerns about the use of a criterion of impaired
decision-making, but we believe that most of those concerns can be
overcome. We believe that compulsory powers should only ever be used as
a last resort when people are very seriously ill, and we do not agree
that a person would become too seriously ill before an impaired
decision-making criterion is
met.”
The Law
Society’s brief, stated:
“We are clear that this
amendment would not exclude a mentally disordered person who was a
danger to themselves or other people from compulsory detention and
treatment under the 1983 Act—since their decision making ability
would by definition be
impaired.”
That was the
point that I tried to make this morning.
Chris
Bryant:
Will the hon. Gentleman clarify that? Is he saying
that he agrees with those who believe that, by definition, the desire
to kill oneself is demonstrable evidence that one has impaired
judgment?
Tim
Loughton:
That is entirely the point that I made this
morning. Looking at my notes now, I can see that I said that if there
is a serious risk of a person being about to commit suicide, or capable
of or intent upon suicide—if a person is in crisis—de
facto their decision-making capacity is impaired.
Let us also remember that a
recent addition tothe Mental Health Alliance is the
Samaritans. The organisation has some expertise in suicide and in
people who are in a state of crisis and it has been alarmed at the
implied connection between committing suicide and suffering from a
mental illness. It does not agree with that. It has also signed up to
the impaired decision-making clause. The Samaritans organisation talks
with some expertise. In whatever way it reached its
decision—democratically or not—however official or
unofficial its brief might have been, and on whatever basis it signed
up to join the Mental Health Alliance, the organisation believes that
an impaired decision-making clause is beneficial to people and
certainly would not lead to an increase in suicide or an increased
risk of suicide. Some volunteers within the
organisation might take a different view, but that is what the
organisation is officially saying, and experts such as the Samaritans
are people to whom we need to
listen.
Ms
Winterton:
I want to clarify whether the hon. Gentleman is
actually disagreeing with what the Opposition said in the House of
Lords. The official Opposition spokesman argued there that the law and
the state have no business interfering in the lives of people who
retain decision-making capacity despite being seriously ill, if the
risk that they pose is to
themselves.
That is a
manifestly different position fromthe one that the hon.
Gentleman has just proffered. Furthermore, he has quoted from evidence,
but does he accept that the British Psychological Society has said that
a very small number of people believed to be at risk of self-harm or
suicide by this approach would be permitted to refuse treatment if
their decision making was not considered to be significantly
impaired?
The hon.
Gentleman cannot have it both ways. He cannot say that everybody would
be covered by the proposed provisions on impaired decision making as
they stand, but that we need to include a test just in case anybody is
not. His argument must be that there are people whom we should not be
treating, as his party’s spokesman said in the House of Lords.
That is the inevitable
logic.
Tim
Loughton:
Has the Minister finished? I spoke to my
colleague in the Lords, Earl Howe, who was at the forefront of the
debate there, and I have his comments before me. The point that he was
making, which he made directly to me as well, was that of course we are
not in the business of allowing or even encouraging a position that
would fail people to the extent that more suicides would result. We
believe that the impaired decision-making clause is a much better
preventive measure. The question that Earl Howe asked was: why should
the law allow the overriding of the wishes of people who have the
capacity to determine their
treatment?
Tim
Loughton:
If the Minister will allow me, I shall continue
a little longer. Our debate so far has been entirely about whether
people should be sectioned or not; we have not touched at all on the
issue of treatment. Many people under section still retain capacity,
but the clause allows people with capacity to have a say on their
treatment—that is entirely
allowed.
Tim
Loughton:
Calm down, Minister. How can we justify saying
that we are happy for somebody who has been sectioned to have their
wishes and their previous experience completely overridden as far as
their treatment is concerned? I shall give way to the Minister, before
she
bursts.
Ms
Winterton:
The hon. Gentleman has just said that there are
many people currently under sectionwho retain their ability to
make decisions. Under his proposal, those people could not be detained,
because the impaired decision-making test would trump the test of
whether the person was a danger to themselves or to others.
Furthermore, will he give a number for “many people”? It
is curious that the British Psychological Society said that there were
very few such people, whereas the hon. Gentleman says that there are
many. How many is
it?
Tim
Loughton:
We keep going back to the British Psychological
Society. It has never had so much publicity as it has had today in the
Committee. Let me quote an example from Dr. George Szmuckler, who is
involved with the Institute of Psychiatry. Speaking about capacity
assessments of different types of people, he
said:
“The
research at the Institute of Psychiatry involving both patients on the
medical wards at King’s College Hospital on the one hand and 112
patients on the psychiatric wards at the Maudsley on the other, found
similar percentages of patients with impaired capacity—around 40
per cent.—and did not find significant differences in the
reliability of capacity
assessments.”
The
point that he was making was that people with physical illnesses lose
their capacity just as much as those with mental illnesses. The point
that I am trying to make is that people with a long-term mental illness
will have been subject to all sorts of medical treatment and other
treatments in the past. Many of them therefore build up a degree of
expertise themselves as to what treatments and drugs work and which may
have negative effects. If they retain some capacity to make those
judgments, those judgments should be listened to. If they are receiving
long-term drug treatment that can cause obesity, or may cause their
hair to fall out, or cause all sorts of liver or heart problems, surely
they should be able to have some influence over that treatment. That is
what the clause is all
about.
Mr.
Boswell:
I am sure that my hon. Friend will also have
noticed another witness. Clause 10 states the fundamental principles
that should inform the code of practice. The first three
are:
“(a)
respect for patients’ past and present wishes and
feelings,
(b)
minimising restrictions on liberty,
(c) involvement of
patients in planning, developing and delivering care and treatment
appropriate to them”.
If
those principles apply, surely it is much better that they should do so
than that the patient should be put under compulsion as an
alternative.
Tim
Loughton:
My hon. Friend is right and the Minister
mentioned that earlier in her references to best interests. As my hon.
Friend said, best interests include past and present wishes as set out
in the Mental Capacity Act 2005. It is not just about access, but about
treatment. The problem seems to be that mostof what the
Minister has said today was based on the effect that this provision
might have on people self-harming. She ended with a great cry of force
that this will have an impact on public safety too. She sneaked in the
old canard, which has been a particular focus of the Government, that
it is the public who are being put at risk.
By that same token, should not
the alcoholic who is a driver have his licence taken away because he
may, while under the influence of alcohol, kill someone? Similarly
should not the diabetic who is not taking his medication have his
licence taken away—never mindbe restricted? Subject to
passing occasional tests, a diabetic is at liberty with a physical
illness that could result in them causing damage to someone else. We
are talking about people who retain capacity who are being treated
differently. That is the whole point of the difference between
them.
Ms
Winterton:
I am worried that the hon. Gentleman does not
understand the effect of the clause. The clause prevents the detention
of people who are a risk to themselves or a risk to others unless it
can be shown that they have impaired judgment. It is nothing to do with
the treatment that they might receive once they are detained. That is
absolutely separate. It simply prevents their detention in the first
place. It is important that he acknowledges that that is what it
does.
Tim
Loughton:
I totally acknowledge the point that the
Minister is making, which is predicated on a subjective interpretation
that an impaired decision-making test will in some way be a greater
hindrancefor people accessing treatment than is the current
legislation. What we said earlier was that people who are in a state of
distress and are likely to commit suicide are more likely to be picked
up on the basisof impaired decision making. We seek to
protectthose people. The Minister’s is an entirely
subjective interpretation of what will be achieved by using an impaired
decision-making test.
2.30
pm
Tim
Loughton:
May I just make one more point? The other basis
on which the Government have got it wrong—going by an earlier
reference to the numbers needed to treat—is the assumption that
treatment works. We know that, as with any physical illness, a lot of
patients with a mental illnesses will not respond to the treatment that
is prescribed for them on the first,
second or even third prescription. In order to justify the use of a
treatment for a physical illness, one would, typically, look to have a
one-in-three success rate; so, for every three patients given some
medication or other form of treatment, one would expect at least one of
them to benefit. That is the sort of figure that NICE guidelines would
work on.
For suicide,
the statistic is that something like one in 100 might benefit from
treatment to prevent them from meeting that end, and for homicide
prevention the figure is some one in 2,500 to 5,000. There is no
guarantee that the treatment will work. It has to be judged on the
basis of the numbers needed to treat. By the Minister’s own NICE
set-up, that is the basis on which the efficacy of a treatment will be
judged. The point is that for some people compulsory treatment will not
be beneficial. For them, treatment without compulsion is more likely to
be successful and in their best interests.
Ann
Coffey:
I am sure that the hon. Gentleman will agree that
that is exactly the situation that exists at the moment. Treatment for
mental health problems has never been totally effective for everybody
at the time when they have received it, because giving such treatment
is a more difficult intervention than giving drugs for a disease. The
situation that the hon. Gentleman describes is a reflection of our
ability to help people with mental health problems; it is not something
new. He cannot do anything about it by ensuring that clause 4 is part
of the Bill; we are where we
are.
Tim
Loughton:
I accept the hon. Lady’s point. I do not
disagree that the system has shortcomings; we know that it has them,
just as the legislation and the service provision do. If the service
provision were perfect, legislation of this sort would not be
necessary, or at least it would not need to be so severe. We are going
to get it right only if the service provision isin
place.
What mystifies
me is that on every clause so far the Government have taken the
attitude that a section is on a service provider—the mental
health trust or whatever it might be. It is not. The section is on the
service user to comply with treatment. This legislation is being used
almost as a means of forcing the provider to provide treatment. If
treatment is required, it should be provided anyway by virtue of the
fact that the mental health service is working. Our fear is that too
much of this legislation is designed to make up for shortfalls in this
country’s service
provision.
We have
spoken for a long time on this clause—[Interruption.] I
want to bring my comments to a close. There are serious inconsistencies
between this Billand the Mental Capacity Act 2005. We could
have suggested a capacity test as a threshold for this measure, but it
is difficult to use in borderline cases, and impaired decision making
is a more flexible test and a more familiar concept to professionals.
Thereis an anomaly in the fact that it has been used in
Scotland, and the clause is largely based on the Scottish experience.
As it is apparently good for Scotland and has been working there
without the sort
of downside that the Minister warns about, I do not understand why she
is making such a big song and dance about it now.
There is clearly a major gulf
between us. We both approach this on the basis that we need to know
whatis best for service users and for the clarity of
professionals providing that service. We think that clause 4 provides
that extra clarity. That is what the professionals seem to
support.
Angela
Browning:
It seems to me that we have heard quite a lot in
the debate on this clause about capacity and the Mental Capacity Act
2005. Having sat on the scrutiny Committee and the Standing Committee
that considered that legislation, I think that it is a
verygood Act. However, I think that the assessment of
impairment is also applicable. It is something that the Minister has
rejected. I would like to put on record, for the benefit of my hon.
Friend, the General Medical Council’s definition of the
difference between impairment and capacity. Capacity, or incapacity as
the GMC calls
it,
“broadly involves a
disorder of brain and
cognition”,
whereas
impaired decision-making
“is primarily a disorder of the
mind in which a decision is made, resulting in the decision being made
on the basis of reasoning coloured by a mental
disorder.”
Therefore,
this clause takes into account the possibility that someone could be
suicidal or even dangerous to others. On that basis, the clinician
would be making a judgment. The patient could have quite well advanced
cognitive function but their impairment would mean that the clinician
had to decide whether they needed to be detained. That does not mean
that the patient could not be involved in that decision
making.
Tim
Loughton:
My hon. Friend is absolutely right and puts it
more clearly than I have been able to upto
now.
Dr.
Pugh:
Perhaps the Minister and the hon. Member for East
Worthing and Shoreham are not quite as far apart on matters of
substance as they believe. He quite correctly said that
“impaired decision making” has a clear meaning for
psychiatrists; if 99 out of 100 psychiatrists were asked to decide who
in this room had impaired decision making, they would come to much the
same conclusions. It is, therefore, clear for psychiatrists. However,
the point is whether it is clear for legislators. I have seen nothing
to persuade me that we, as legislators, are perfectly clear about what
we mean by “impaired decision making” and I feel that we
ought to be.
Dr.
Naysmith:
I thank the hon. Member; he has been very
generous in giving way to many people this
afternoon.
Dr.
Naysmith:
“Foolhardy” is a
good word. The hon. Gentleman has made numerous references to the
Scottish Act this afternoon. He will recall that I stumbled by accident
into a meeting of his the other day at which he was taking evidence.
One of the witnesses, a psychiatrist, was saying that the Scottish Act,
although it was passed in 2003, had not been implemented for long
enough for any conclusions to be drawn and that the numbers were so
small that he did not think that any conclusions could be drawn from
it.
Tim
Loughton:
I agree with the hon. Gentleman on the basis
that the Milan Committee discussed this long and hard in preparation
for the Scottish Act, as did the pre-legislative Scrutiny Committee in
preparation for the Bill. It is not something that has been plucked out
of the air. It is early days, although that has not stopped the
Secretary of State from trying to claim figures for the number of
children now being detained in adult wards, in which I think that she
was quite wrong. It is too early. However, Scotland has done it and
many people are happy with it in Scotland and many people were happy to
put it in place there. So far, at this early stage, it does not appear
to have led to the horror stories that the Minister seems to suggest
will occur.
In the
interests of moving on, I would like to sit down now. [Hon.
Members: “Hear, hear.”] Clearly, all hon.
Members are in favour of that. We are perfectly happy with clause 4.
There are all sorts of confusions over it, but we think that it gives
extra clarity and a good steer to professionals, who are in favour of
this measure. On that basis, I hope that the Government will not push
this matter to a vote, but if they do we will vote in favour of
retaining clause 4.
Mr.
Kidney: Thank you, Miss Begg. It is a pleasure to serve on
a Committee that has you in the Chair, with your usual assured skill in
keeping us all in order.
I oppose clause 4 because it
introduces a test that is new, additional and may have unforeseen
consequences that could be detrimental to people in the future if we
pass it in its present form. I want to follow on from what I thought
was a very constructive contribution to the debate by the hon. Member
for Southport. He asked what we might do instead if we accept that
there is still improvement to be made in the Bill but that removing
clause 4 is not the right improvement.
I have a briefing from the
Mental Health Alliance, which it sent to Members of the Committee. It
is part of a detailed briefing that they sent us on individual aspects
of the Bill, so its heading is “Impaired Decision
Making”. It is not the same as MH21 in the bundle of documents
that we have.
As I
said on Second Reading, I would like to say that I have the greatest
respect for the individual members of the alliance and for the alliance
as a whole, but, of course, it is not homogenous and all its members
have not agreed on every aspect of its submission. Indeed,
within the briefing that I am referring to, on “Impaired Decision
Making”, the author mentions occasions when members of the
alliance had different points of view. A very good example is on the
issue of whether capacity would be a good test as the threshold for
compulsory detention in a hospital.
Of course, we all now have
MH40, a briefing from a number of other organisations that are members
of the alliance, but who write in respect of their professional
qualifications and responsibilities. They say that they are
writing
“to ensure that
Parliamentarians are fully aware that regarding certain key aspects of
the Bill, the Alliance does not speak for our organisations, and that
we disagree fundamentally with several of the public statements made by
them.”
I am just pointing
out that it is not always the case that the alliance must be right, and
must be speaking for all its members.
My starting point is a point
that has been made by other Members in the debate. The briefing
says:
“Practitioners
in both physical and mental health care regularly conduct tests of
capacity, as they are required to do in relation to consent to medical
treatment.”
That is an
important point that a lot of people have overlooked in the debate so
far. We should remember that a practitioner giving treatment without
consent could be convicted of an unlawful assault on a patient. A
practitioner who detains somebody without their consent could be guilty
of an offence of unlawful imprisonment. So, that is a very important
first test. However, the crucial difference between mental and physical
health, of course, is that, once that assessment is made, a
psychiatrist, being presented with a possible mental illness, can
override the capacity and apply, by law, a power to detain.
That is an important starting
point for our debate. As the hon. Member for East Worthing and Shoreham
has just said in his contribution, there is evidence that people who
still have capacity are being detained at present. In fact, the
alliance’s briefing says
that
“A recent
study found that a significant minority of detained patients,
particularly those who had been detained on a previous occasion,
retained their
capacity.”
That is an
important starting point. Incidentally, the reference for that study is
“Prevalence and predictors of mental incapacity in psychiatric
in-patients”, by Cairns and others in the British Journal of
Psychiatry in 2005.
I
think that is our starting point. Capacity is something that all
psychiatrists and medical practitioners arevery accustomed to
trying to establish, but at the moment it is not the deciding factor
when exercising the powers under the Mental Health Act 1983 to compel
detention.
It is also
important to bear it in mind that Parliament has provided for a very
long time the power to override capacity and detain compulsorily, most
recently in the Mental Health Act 1959 and the Mental Health Act 1983,
which is the Act that we are debating now. I pause to point out that,
in both of those years, the Government of the day was a Conservative
Government who clearly felt, as a matter of principle, that there were
occasions when it was right to override somebody’s capacity and
detain them against their will for compulsory treatment. If people now
want to debate the principle of doing that, let us have that
debate, but I have heard no arguments from the Opposition as to why we
should change the present position.
I have briefly reviewed why
such powers were felt to be appropriate in 1959 and 1983, and why we
still think they are appropriate today. I think that the less good
argument is a paternalistic one; the argument that we the
parliamentarians and we the psychiatrists think, “This is good
for you, whether you like it or not. It is a matter of your safety or
public safety and we should do this to
you.”
There is
a subtler argument. If a person is presenting with a potential mental
disorder and is saying, “I refuse to have treatment,” to
what extent is the refusal to have treatment part of the symptoms and
the outward emanation of the mental disorder? That is why I said in an
intervention this morning that psychiatrists were in a particularly
difficult situation in making these very, very difficult judgments on
our behalf. We give them the power and I think that we have an
obligation to back them when things go wrong, as they have done in a
high-profile way on a number of occasions and no doubt will again in
the future. That is the question of
capacity.
2.45
pm
Some have
argued—this is in the alliance’s document,
too—that the threshold for compulsory detention should be
capacity. If a person has capacity and says, “No, I refuse to
have treatment,” there should not be a power to detain them
compulsorily. That brings us to the quote that my right hon. Friend the
Minister has used several times from the British Psychological Society
about letting them go even if they might be a danger to themselves and
to other people.
Such
a change would be a radical shift in the present state of the law and a
very dangerous one. The alliance draws back from that and says instead,
“How about impaired decision making as an additional test that
is a threshold for compulsory detention?” It describes that as a
less demanding test and a “softer option” than mental
capacity. Clearly, it recognises that mental capacity as a threshold
would be very dangerous, but that this provision is something
additional to what the law requires at present; it is a meaningful
test. As the Minister said, some people clearly will not reach this
threshold and will be turned away, even though they are presenting in
such a way that many people would think that they ought to be treated
even if they will not consent to
it.
So I hesitate to
say whether we should have an additional test and I look, then, to
where we are with the words before us today. The explanatory notes to
the Bill say that
“there
is no precedent for this provision in legislation in England and
Wales”.
However familiar
psychiatrists are with such a phrase, interpreting it among themselves
and in their assessments of patients, it is not something which in
England and Wales has legal meaning or of which there is legal
understanding such that we can all say that we are confident what the
outcome of adopting such a test would be.
The alliance’s briefing
says that we can now lookto an Act in Scotland—the
Mental Health (Care and Treatment) (Scotland) Act 2003—which
says that
“a patient
cannot be brought under the Act unless his ability to make decisions
about his treatment is deemed to be significantly impaired as a result
of his mental
disorder.”
I immediately
point out that that wording is different from the wording in our Bill,
so even if anyone had evidence of how the changes have been effected in
Scotland—they do not yet, because it is too soon to
tell—it still would not be a great guide for us, because it is a
different test.
The
alliance quotes the British Psychological Society in a different
context—its evidence to the Joint Scrutiny Committee back in
2004. In its submission, the society says that it notes
that
“the Human Rights
Act legitimises such compulsion only in the case of ‘persons of
unsound mind’. As psychologists, it is axiomatic that being
‘of unsound mind’ equates to being significantly impaired
in decision-making—in this case being harmfully and
significantly influenced by the mental
disorder.”
I think that
we are being in a sense conned. It is being said to us that it is
axiomatic that if a person says that they want to commit suicide, they
must have impaired decision making and therefore, “Don’t
worry. We will still detain them.” However, as the Minister has
warned us time and again, that is not necessarily the interpretation of
the practice that will follow as a result of adopting this test, so I
for one am extremely hesitant about accepting
it.
My last word on
the alliance’s briefing is this. Atthe end, it
helpfully refers us to the world view about what good legislation
should be. It says that theWorld Psychiatric Association
approved at its general assembly on 25 August 1996 a statement of its
ethical standards. The briefing
says:
“Article
4 states ‘When the patient is incapacitated
and/or”—
incidentally,
the “and/or” is
important—
“unable
to exercise proper judgment because of a mental disorder, the
psychiatrists should consult with the family and, if appropriate, seek
legal counsel, to safeguard the human dignity and the legal rights of
the patient. No treatment should be provided against the
patient’s will, unless withholding treatment would endanger the
life of the patient and/or those who surround him or her. Treatment
must always be in the best interest of the
patient.’”
I
happen to think that the Government’s view of what this law
should say is closer to that statement thanwhat clause 4
includes in the Bill as a result of the amendment in the House of
Lords. We may not all necessarily be reassured that that good statement
is completely covered by the Bill. Like the hon. Member for Southport,
I want to continue to consider whether some other amendment could
reassure everybody that the use of the powers will be interpreted in
accordance with that statement of principle. We may be able to have a
debate about that when we discuss clause 10, but, for the moment, I do
not think that this clause should stand part of the
Bill.
Ms
Winterton:
Obviously, this has been a full debate, and I
want briefly to pick up on a few points made by hon. Members.
The hon. Member for Southport
rightly said that there is a difficulty in adopting a test such as that
which is proposed, because we are all clear that we do not
know how it would work; there is consensus that we do not know what the
effects would be. Some hon. Members have said, “It is used in
Scotland, so we should use it.” As legislators, we must make the
decision on the basis of the evidence before us.
We should ask what we know the
effect will be. We do not know, and merely to say that something
happens in Scotland should not be our approach. We know various things,
but as the hon. Member for Southport said, we do not know very much
about this extra test—it is a leap in the dark. My hon. Friend
the Member for Stockport said that the element of confusion is
enormous, particularly in respect of the Mental Capacity Act
2005.
We are further
taking away clinicians’ discretion to decide whether a person
poses a risk to themselves or to others. Another test is being put on
top of that, and it will mean that certain people will not be able to
get treatment. Everybody is agreed on that. The British Psychological
Society says that the number involved will be small. The hon. Member
for East Worthing and Shoreham said that many people would not
necessarily need to be detained if such a test were included. The
figures cited vary from very few to quite a lot, but as my hon. Friend
the Member for Stafford said, differences also exist within the Mental
Health Alliance about whether the provision on impaired decision making
should be included. The Royal College of Nursing has said that to
include it would be wrong because certain people would not get
treatment.
I ask
Opposition Members to consider the fact that they do not know the
number of people who will not get treatment, although they know that we
will have to say to some people, “I am sorry but the impaired
decision-making test overrides the test of whether somebody is a danger
to themselves or to others. Even where someone is a danger to
themselves and to others, they cannot be detained because they do not
have impaired judgment.” This a matter of numbers, but let us
make no mistake: the numbers exist. It is wrong for us to change the
current position and do something that we all know will lead to fewer
people getting treatment. That is why I ask the Committee to reject
clause
4.
Dr.
Pugh:
Will the Minister help me with a slightly tangential
point? Are the conditions for compulsory admission for treatment
identical in every respect to those for admission for treatment? Once
conditions are met, cannot a person simply be admitted but treated in
whatever way it is decided that they want to be
treated?
Ms
Winterton:
Again, there is a problem with the test. In
many cases, treatment is given to people who started off with impaired
judgment, but if an individual’s judgment became less impaired
and that person went before a tribunal and on that particular day the
condition had changed, it would override the danger to themselves or
others. That must be remembered about the test. The numbers are there;
they range from very small numbers of people to larger numbers who, as
the hon. Member for East Worthing and Shoreham said, would not be
detained as a result of this change. I therefore ask hon. Members to
think carefully about making such a change.
Question put, That the
clause, as amended, stand part of the Bill:—
The
Committee divided: Ayes 8, Noes
11.
Division
No.
3
]
AYESNOES
Question
accordingly negatived.
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