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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 CommitteeTuesday 1 May 2007
(Afternoon)
[Ann Winterton in the Chair]Mental Health Bill [Lords]Clause 6Approval
of local spending
plans
Question
proposed [this day], That the clause stand part of the
Bill.
4.30
pm
Question
again proposed.
The Chairman: I remind
the Committee that with this we are taking the following amendments:
No. 60, in
clause 11, page 7, line 10, at
end insert—
‘(11) After that
subsection,
insert—
“( ) No
person can act as a responsible clinician unless he is capable of
providing objective medical expertise of mental
disorder.
( ) Objective medical
expertise of mental disorder shall have the same meaning as in
Winterwerp v The Netherlands (1979-80) 2 EHRR
387.”’.
No.
61, in
clause 13, page 8, line 45, at
end insert—
‘( ) After that
subsection,
insert—
“( ) No
person can act as a responsible clinician unless he is capable of
providing objective medical expertise of mental
disorder.
( ) Objective medical
expertise of mental disorder shall have the same meaning as in
Winterwerp v The Netherlands (1979-80) 2 EHRR
387.”’.
Government
amendments Nos. 22, 24, 25 and
28.
It would be
helpful if, at the start of Committee proceedings, everybody were to
check their mobile phones and other devices and switch them off or turn
them to silent.
Tim
Loughton (East Worthing and Shoreham) (Con): Welcome, Lady
Winterton—[Interruption.]. I am not sure where I was
interrupted, so I thought that I might go back to the beginning and
start again. I think that I was just about to explain the case of
Winterwerp v. The Netherlands 1979, which is the basis of the
two amendments to which I spoke for most of the morning. They would
amend clauses that we are not debating at the moment, but that is the
way in which things work.
Winterwerp v. The
Netherlands 1979 produced an important European judgment on mental
health law. The ruling was that, except in an emergency, the detention
of a person of unsound mind will be lawful only if, first, the person
detained is reliably shown tobe of unsound mind—that
is, by objective medical experts—secondly, the relevant mental
disorder is of a kind or degree warranting compulsory confinement, and
thirdly, there is a persistence of such a disorder to justify
continuing detention.
I was talking
about the position of the Joint Committee on Human Rights. It asked the
Government to explain further their view that medical expertise need
not necessarily involve a doctor. I am aware that the Department of
Health takes the view that the phrase “medical
expertise”, as referred to by Winterwerp, was used in the wider
sense and the Court was not seeking to lay down which sort of
qualifications available in a national system would be acceptable.
However, the JCHR and a number of professionals do not agree with that.
The JCHR disagrees particularly with the Government’s definition
of objective medical expertise. It says:
“In Varbanov v
Bulgaria the Strasbourg Court gave every indication...that
objective medical expertise involved reports from psychiatrists who are
doctors. The Court made it clear that the opinion of a medical expert
who is a psychiatrist is necessary for a lawful detention on grounds of
unsoundness of mind. This requirement would have been met had the
doctors present at the admission furnished an opinion that the
applicant needed to be detained for psychiatric examination. This
indicates that the opinion justifying detention should come from a
medically qualified expert...who has recognised skills in
psychiatric diagnosis and
treatment.”
My
point is that, if the Government get their way, there is every chance
that there will be serious legal challenge of the basis of the
legislation. The Minister has warned on a number of occasions against
having a field day for lawyers. This is a field day for international
lawyers. I would like to know on what evidence the Government have
based their opinion that their proposed change to the legislation is
sound and that it will not be subject to legal challenge. It would be
useful if the Minister would give us details as to which legal opinion
the Government have taken. The Law Society, the JCHR and a number of
others have severe reservations, based on case law, about whether the
changes will be workable.
There is
another angle to the issue, which is the interaction between the Mental
Health Bill and the Mental Capacity Act 2005, which treats these
matters differently. The mental health assessment, one of the six
assessments required in the 2005 Act for a Bournewood deprivation, must
be carried out by either a registered medical practitioner approved
under section 12 of the Mental Health Act 2005 or a registered medical
practitioner who has special experience in the diagnosis and treatment
of mental disorder. So, in those circumstances, only a doctor has
responsibility. There is clearly an inconsistency between this Bill and
the Act that is already law. Again, it would be useful if the Minister
would tell us how she intends to square the circle on those two
incongruities.
The
BMA does not know of any international precedent for such an
arrangement whereby detained patients do not come under the direct
responsibility of a consultant psychiatrist. It cites Canada,
Australia, the United States and other countries where that formulation
just does not exist. We need to know why things would be different in
this country, and how, if the Government get their way and overturn the
Lords amendments, they expect the new arrangements to pertain without
serious legal challenge.
It is worth
reiterating the training that psychiatrists must undergo. Two years
after leaving medical school, trainees enter a rotational psychiatry
programme, an elaborate passage that equips the would-be psychiatrist
with knowledge of anatomy, physiology, pathology, pharmacology,
medicine, surgery and psychological therapies. During the senior years
of training, most
junior doctors will acquire detailed knowledge of mental health law,
teaching, audit, research and management skills. In contrast, mental
health nurse training has moved away from a medical model in the past
decade, so trainee nurses are no longer required to undergo training in
medicine. Different disciplines are brought to bear through the
experience and expertise of the different professionals under
discussion.
Dr.
Ian Gibson (Norwich, North) (Lab): Is the hon. Gentleman
saying that in terms of medicine the training takes eight years? Will
he confirm that there are six years of training as a medical student
and two further years of specialty training? Is that what he is saying
about training doctors?
Tim
Loughton:
I believe that those figures are right on the
training of doctors. For a full-blown consultant psychiatrist, however,
we are talking about 13 years, which means that considerable training,
expertise and experience go into the specific job that psychiatrists
are put in place to do. It is different from what a psychologist and
consultant nurse will do.
To return to the premise of the
Lords amendments, it must be in the best interests of a potential
patient if a professional with the most extensive experience possible
is available before the most momentous decisions in a patient’s
life are made: first, the decision to section, with which the
Government take no issue; and, secondly, the decision to renew
sectioning. Some of us contend that the latter is a more serious and
less obvious consideration, which is why the fullest expertise must be
brought to bear.
The Lords
amendments would ensure that, before a detention was renewed, patients
would receive similar consideration to that which they received during
the original sectioning order. Surely, we just need to replicate the
rigour of the original process. The amendments were changed in the
Lords after the Government gave assurances in Committee about the
skills and competences that would be required of a responsible
clinician, which would be included in the code of practice. Again, it
would be useful if the Minister would provide some details on what has
happened since then.
The purpose of the amendments
is to find some accommodation with the Government based on a clear
reference to a legal case—a precedent in medical
law—about what would be acceptable in the courts. We framed the
amendments to refer to the case of Winterwerp v. The
Netherlands, so that the objective medical expertise of mental disorder
would have the same meaning as it has in that case. The amendments are
a belt and braces exercise.
In conclusion, I repeat that
the amendments would not debase the role of all other professionals
involved in patient care; they would ensure that at a difficult time
the very best professional expertise was brought to bear on the
patient. When discussing the amendments that gave rise to the clause,
Lord Carlile
said:
“Each
renewal of detention is a fresh deprivation of
liberty.”—[Official Report, House of Lords, 19
February 2007; Vol. 689, c.
940.]
I wholeheartedly concur
with that.
There are
glaring inconsistencies in the Government’s case, in having
moved from their original position and now in keeping the medical
conditions pertinent to the original section, and the potential
inconsistency with the 2005 Act. I fear that if the Government get
their way and overturn the amendments, it will be a recipe for
confusion, particularly as to where the buck actually stops on
decisions being made for patients’ renewed detention. Surely,
that cannot be in the best interests of patients. Our amendments, which
I propose formally, are a sensible way of accommodating the
Government’s position and achieving a practical and workable
solution in this important part of the
Bill.
The
Chairman:
Order. Before I call the Minister or any other
hon. Member, may I say that the hon. Gentleman cannot formally propose
the amendments, but he can indicate later whether he would like a
Division on
them?
Tim
Loughton:
On the basis that I do not have to repeat what I
said, may I indicate formally that I would like a Division on the
amendments?
Sandra
Gidley (Romsey) (LD): I support the hon.
Gentleman’s comments. I do not want to repeat at length too many
of his points, but some are so fundamental that they cannot be stressed
frequently enough, the hope being that the drip, drip effect will
result in their getting
through.
Liberal
Democrats are not against multidisciplinary working, and the majority
of us actively support it. I say “the majority” because I
have not canvassed opinions individually, so I do not feel qualified to
say that we all support it. However, it is in the best interests of
patients. It also provides a better working environment for health
professionals if their skills are acknowledged and used. Good
multidisciplinary working is a win, win
situation.
Dr.
Brian Iddon (Bolton, South-East) (Lab): Does that also
mean joint working and joint decision
making?
I
recognise the benefits of multidisciplinary working almost more than
anyone, because I am a pharmacist by profession. Pharmacists and other
primary health care professionals could learn a lot from what has
happened in the mental health sector when developing joined-up services
for patients. The word “patient” is key, because we must
always have the best interests of the patient at heart.
The Minister
rightly highlighted the extent of training that other professionals
must undergo to become responsible clinicians. Unfortunately, the
document to which she referred this morning did not arrive in my office
until after the start of the Committee, but I appreciate her intention
to share the
information.
The
Minister said this morning that she did not think that consultant
nurses, for example, had broad enough experience to allow them to start
a section or,
in other words, to be responsible for the initial deprivation of
liberty. That is fundamental, because it acknowledges
psychiatrists’ broader expertise and, to some extent, the 13
years’ training that has been mentioned.
There is an
inconsistency in the Government’s approach to mental health
legislation. They have decided that two doctors are needed to start a
section, and that two professionals are needed to put a person on to a
compulsory treatment order, but that two people, one of whom is a
doctor, are necessary to deprive a person of liberty under the 2005
Act. If the Government had their way, renewing a section could be done
on the basis of only one opinion, which is not necessarily that of a
doctor. There does not seem to be a consistent view throughout the
mental health legislation.
However, this
is not about whether we hurt the feelings of any particular profession,
and I find it hard to believe that the ultimate and professional
recognition seems to hinge on whether that professional is deemed
capable of depriving a person of their liberty for six months.
Psychologists, nurses, occupational therapists are actually bigger than
that. There is more to what they do, and I cannot believe that this is
such a fundamental issue for them, or that they will leave the
professions in droves if they are deprived of the right to do this. It
has been largely overlooked in this discussion that, according to the
House of Lords amendments, those people still have a key role to
play.
4.45
pm
That
brings me on to the shared decision making that the hon. Member for
Bolton, South-East mentioned. Clause 6(3) clearly states that the
responsible clinician and the medical practitioner need to agree. The
legislation does not say anywhere that the medical opinion has greater
weight, and it does not say that the responsible clinician has less
weight either. In other words, there has to be an agreement between the
two. If somebody is to be deprived of their liberty for a further
period, that is a perfectly reasonable thing to
expect.
The clause, as
it stands, does two things. It provides reassurance both for those
patients who would want to feel that they had received the greatest
clinical input, but it also reassures those patients who, for whatever
reason, mistrust psychiatrists. We must acknowledge, as was
acknowledged earlier in the debate, that a number of mental health
users mistrust the system. In other words, with the Lords amendment, we
have the best of both worlds. The opinion of somebody whohas
been responsible for looking after the patient for six months is going
to be of equal weight to that of a medical practitioner who, in ideal
circumstances, has some knowledge of the
patient.
More
importantly, having the two people decide provides a safety net. I was
reminded of a constituent who came to see me. I know that is sometimes
easy to be taken in, but this woman seemed incredibly rational, and she
made a very good case, pointing out that her husband had put together
evidence that, in effect, had her sectioned. I shall not bore the
Committee with the details, but in such cases someone would have more
protection if two independent-minded professional
people were involved in further decision making than if the matter were
left to just one person, whom the individual might not
trust.
The
Minister of State, Department of Health (Ms Rosie
Winterton):
The hon. Lady is aware that, at the moment, we
are dealing with the renewal of decisions about detention, which
involves only one person. She is quite happy with that, because that
person is a doctor. If the person is a clinical psychologist or a nurse
consultant, she is somehow not happy with it, and believes that the
decision has to go to a doctor for signing
off.
Sandra
Gidley:
I would prefer the two people,
as was suggested by the Lords amendment, to have a joint
decision.—[ Interruption.] Perhaps I have misinterpreted
it, but that is the way that I read clause 6(3). That seems to be what
they said. If joint working is the success that everyone claims, surely
everybody would welcome the Lords amendment as being in the best
interests of the
patient.
Mr.
Charles Walker (Broxbourne) (Con): I want to make a short
contribution to the debate on this clause. I do not profess to be an
expert in this field at all, but if I were a mental health patient,
being detained against my will, receiving treatment against my will, I
would want the person with the most to lose to have the final say on my
future—at least on my immediate future, and whether I would be
detained. We talk about teams working together, so in essence, I would
want the team captain—be it a substantive captain, or a
temporary captain because the substantive captain is away—to
have that final say against my
will.
I
do not think that it is unreasonable for a consultant
psychiatrist—a doctor—to have the final say. After all,
the Bill is not about rewarding people but about safeguarding the
rights of patients. The Minister mentioned earlier that she wanted to
reward professional groups, and that is a noble thing to want to do.
However, ultimately, she should not bow to pressure from professional
bodies, such as the Royal College of Nursing, and unions. Of course, it
is the role of unions and representative bodies to argue in the
interests of their members—we would not expect any less of them.
I am a member of Amicus, and I expect Amicus to argue my corner
vociferously, but that does not necessarily make it right.
Ms
Winterton:
I was not going to intervene quite so much, but
the hon. Gentleman is saying that one should not bow to interest
groups. Does he not feel that he is rather slavishly following the idea
that only the doctors know what to do, a view that is expressed by some
members of the Royal College of Psychiatrists, without recognising the
other organisations that represent 85 per cent. of the other
professionals?
Mr.
Walker:
I take the Minister’s point, but ultimately
we are talking about depriving people of their liberty and locking
people up against their will. Let us start by talking about what is in
their best interests. I feel that it would be in the best interests of
people who were having their liberty taken away from them to have a
doctor present at that moment to take responsibility for the
decision.
Ms
Winterton:
The hon. Gentleman is suggesting—never
mind the fact that the Opposition want to delete the role of
responsible clinician through the removal of clause 11 in the first
place—that it is better for a patient to be examined, judged and
signed off by a doctor whom they might not have seen for six months,
rather than to have that decision made by the clinical psychologist or
nurse consultant under whose care they have
been.
Mr.
Walker:
I imagine all good doctors, whether they are the
patient’s substantive doctor or a doctor called in to review the
case, would take advice from the clinicians who were treating that
patient. Of course they would. I cannot agree with the
Minister’s point; it borders on the fatuous, to be
honest—but so much of what she says does. [Interruption.]
Does the hon. Member for Stockport want to
intervene?
Ann
Coffey:
Yes, I do. The hon. Gentleman should be able to
make an argument without being personally insulting to the
Minister.
Mr.
Walker:
If calling the Minister fatuous is
personally insulting, I apologise, but I am sure that she is big and
bold enough to take it on the chin.
In conclusion, I feel strongly
that since we are talking about depriving people of their liberty for
upwards of or up to six months, it is not
unreasonable—
Mr.
Walker:
No, I will not. It is not unreasonable for the
final signature to belong to a doctor—a consultant psychiatrist
who, as my hon. Friend the Member for East Worthing and Shoreham has
pointed out, will have upwards of 13 years’
experience.
Angela
Browning (Tiverton and Honiton) (Con): I have intervened
on others during the discussion on the clause, and I do not want to
repeat too much of what has already been said. The clause gives me
great cause for concern. I sat on the scrutiny Committee on the
previous proposals for a mental health Bill and a lot of the discussion
was about the underlying intention in the Government’s proposal
to reform the Mental Health Act 1983.
In speaking
on this Bill, both on Second Reading and in Committee, the Minister has
sought to play down what was evident to everybody who took an interest
in the subject a year or two back. At the heart of the legislation is
the right to detain indefinitely. If anything triggers my concern, it
is the renewal of a person’s detention under a different set of
rules and qualifications to the initial detention. Why should the very
careful and historical need for a senior medical input—indeed,
more than one medical input—be changed for renewals? Several
hon. Members have made the case that when someone has been receiving
in-patient treatment for six months, they may present differently from
the way they presented when they were originally detained, perhaps at a
time of
crisis. Why should the Government wish to water down the qualifications
for renewal compared with those for initial detention?
I am reminded
of our discussions in the scrutiny Committee. As I have told the
Minister more than once, the change in the definition of a mental
disorder at the heart of the legislation concerns something that is
more behavioural than something that has a diagnosis, and it is a cause
for concern that that definition is combined with the right to detain
indefinitely someone who has not committed a crime and who certainly
does not have the due process of the criminal justice system in their
favour.
I remind the
Minister that around the time of the Michael Stone case, when there was
great public discussion on how we should deal with people like him,
there was an exchange of letters in the national press between the then
president of the Royal College of Psychiatrists and the then Home
Secretary, who is now the Leader of the House of Commons. I am
sorrythat I do not have the exact quotations, but I recall
that those three letters went along these lines: the psychiatrists
expressed their reservations about what an Act such as this would
require them to do, in terms of detention, and the then Home Secretary
put it into the public domain that if psychiatrists did not want to
deal with detentions, the Government would seek other ways of dealing
with them and would find others who would. And here we have the
solution in clause 6.
The clause is
not about creating equal opportunities for nurses, occupational
therapists and psychologists: it is about finding a way around the
difficulty that the Labour Government met when they bravely told the
world out there that they were going to find a solution to the problem
of locking up people like Michael Stone. Of course, that attracted a
lot of tabloid headlines and the tabloids rode in behind that proposal.
It was only when the Government got down to considering what happens in
practice in psychiatry and how difficult these cases are that they
realised that it would be difficult to draft legislation to provide
that solution.
Angela
Browning:
I shall. I do not suppose that the Minister is
going to put up her hands up and say, “Yes, this is our way
around that,” but it does not pacify my concerns that that was
the motivation for amending the 1983 Act in the first
place.
Ms
Winterton:
I must say that the hon. Lady’s comments
were much more measured than those of the hon. Member for Broxbourne,
who rather let himself down. However, I want to be clear about what she
is saying. Is she saying that clinical psychologists, nurse consultants
and all the people who work in mental health and who want to take on
these additional roles are going to turn into people who would lock
others up wrongly, unlike the psychiatrists? Is she saying that if we
were to leave matters in psychiatrists’ hands, everything would
be okay, but that the Government will use those health care
professionals to lock people up? It is grossly insulting to them even
to think that they could be used in that
way.
Ms
Winterton:
I am sorry that the hon. Gentleman finds it
boring, but I do not think that the health care professionals who are
listening will find it boring. In fact, they might find his comments
rather revealing of the Opposition’s
view.
The
Chairman:
Before the hon. Member for Tiverton and Honiton
speaks again, may I say to members of the Committee that I expect them
to behave with good manners and to be courteous to each other? These
issues are very
important.
5
pm
Although I
would be the first to welcome the enhanced roles of a range of
disciplines in mental health and I can see from the point of view of
multidisciplinary teams that a lot can still be done to the way in
which we deal with both in-patients and
out-patients—
Angela
Browning:
I shall do so in just a moment. I want to make a
point to the Minister, who has just intervened on me. I wish to know
who can provide objective medical expertise, or are we to take it from
the anomalies in the Bill, under which one level is needed at one stage
in the process and a different level is needed at another, that
objective medical expertise is no longer required in the detention of
patients? That is how it reads. It is incompatible to say that one set
of people can provide medical expertise in one set of circumstances,
but that for the same patient with the same period of treatment, it
does not matter at the other
end.
My colleagues
have advanced views about why the renewal is perhaps more critical even
than the initial detention. I agree. We also know that there are people
in the health service who sometimes deal with potentially dangerous
mental patients who would worry about their own safety when managing
such people. I can think of situations involving dealing with
constituents in high-security units in the Devon area in which the
police have had to be called. It is not a matter of casting an
aspersion on one set of people, but some cases are complex and a few of
them are extremely dangerous even when the people are in-patients. It
is at the patient’s end that we should be asking questions,
about what is in their best interests. I cannot see that what the
Minister is proposing as her objection to the clause is in the
interests of the
patient.
Dr.
Naysmith:
The hon. Lady mentioned the Michael Stone case.
I agree with you, Lady Winterton, that these are serious and important
matters, but whether or not there was any truth in what the hon. Lady
said about the circumstances surrounding the exchange of
letters, was she saying that nothing could be done for Michael Stone?
Surely there must be some way in which to help people like him. We must
remember that he had asked for help on a couple of occasions and not
received it. Is it not sensible to consider whether there is a possible
way in which to help people such as Michael
Stone?
Angela
Browning:
I am not suggesting otherwise for a moment.
During our debates, I have made clear my concern about the lack of
continuity in the community of people who may or may not have been
treated as in-patients, but who have certainly come under the umbrella
of mental health services. In my experience of looking at
cases—fortunately none was as serious as the Stone case—I
encountered a case in which a constituent fell through the net, did not
receive ongoing attention from the mental health services and murdered
his mother. I do not need to be signed up to the idea that we should be
seeking to help such
people.
What is the
best form of treatment for the person has to be down to the clinical
judgment of someone who has had many years studying such complex cases.
That is the point. It is not that I am disparaging others and saying
that they do not have a role to play—even a very senior role. Of
course they do. However, I do not see the logic in the idea of taking
decision making away from the person who was involved originally at a
senior level in admitting the person for detention. It does not seem to
make sense. I must therefore ask myself what is behind the
Minister’s motivation for being so opposed to the
clause.
Ms
Winterton:
I want to ask the hon. Lady one simple
question: does she think that there is any role for responsible
clinicians as we have defined them? If she does, will she say why the
Opposition suggest, through their wish to delete clause 11, that that
role of responsible clinician should not
exist?
Angela
Browning:
We shall see what happens to clause
6—whether it is put to a vote or changed. We shall come to
clause 11
later.
The
inconsistencies in the Minister’s argument on the renewal of
detention make me wonder what is behind clause 6. It is inconsistent,
although that is not to disparage those who have a role to play in
other disciplines of mental health care, who would undoubtedly be
involved in a patient’s treatment and management. We often use
the word “treatment” in this debate when perhaps we ought
to use “management”. Many people can play a role in the
management of a patient; it does not necessarily follow that that would
constitute a treatment. Many disciplines would certainly have a role to
play in making sure that detained patients gained as much as possible
from their detention
period.
We are
discussing renewals, and rolling out again after the first six-month
period. That surely has grave significance for the individual
concerned. I cannot accept the Minister’s argument on the
clause. On Report in the Lords, the Government attempted to put some
medical input into the patient’s care. Why was that good enough
for their lordships, but not good enough for this
House?
Ms
Winterton:
Lady Winterton, may I take this opportunity to
welcome you back to the Committee? I did not have that opportunity
during my
interventions.
I
should like quickly to summarise some of the points made. It is
important to reiterate that we are trying to make sure that we reflect
some of the new ways of working that have been developed for a number
of years—with the royal colleges, mental health care
professionals and so on—so that we can recognise the new roles
that highly qualified nurse consultants and clinical psychologists can
play in a multidisciplinary team. We wanted the ability to give them
that role as the responsible clinician.
It is important that the
Opposition should be honest about how they really feel. They have
tabled an amendment that would delete clause 11, thereby deleting the
whole idea of the responsible clinician. It is important that we should
see the amendment in that light. Their starting point appears to be
that they do not want the responsible clinician to exist. We are saying
that there is a role and that it is right that in legislation we should
be able to reflect what is happening in many areas of service
development. If the Opposition’s intention is as I have
described, I make it absolutely clear that we fundamentally disagree.
We believe that there is a role.
Tim
Loughton:
I should point out that amendments Nos. 60 and
61 refer to a responsible clinician, according to the definition that I
have mentioned.
Ms
Winterton:
Absolutely; that is why they are so bizarre
when read alongside the amendment to delete clause 11. That is what I
find bizarre. On the one hand, the Opposition
say—[Interruption.] I think that the hon. Gentleman has
been called out by his adviser, but I hope that he will stay to hear
the arguments.
I start
from the point of view that the Opposition may not want a responsible
clinician to have any role at all; obviously, the Government do. We
come to the issue of the difference, which has been raised. At initial
detention, the responsible clinician, who may not be a doctor, decides
about renewal. There is no requirement in relation to the European
Court of Human Rights for doctors to decide about initial detention.
Indeed, we considered whether two approved clinicians should make that
decision, because we felt that that could be appropriate, but as a
matter of policy, and listening to the points that people made, we
decided to keep doctors as making the decision because, at initial
detention, some patients are not known to services or have disengaged
from services, so a patient’s clinical needs may not be known at
that point. We felt that it was practical that doctors, with their
particularly broad diagnostic skills, should decide whether people
should be
detained.
However,
once the patient has been assessed and their needs are known, it is
right, in our view, that they should be given the responsible clinician
who meets their needs best. That is one of the benefits of the
responsible clinician policy. The patient may be allocated a person to
be in charge of their case who has the particular expertise to address
their treatment needs best.
I come to the Winterwerp
judgment. The hon. Member for East Worthing and Shoreham is right to
say that the European Court of Human Rights held
that
“except in emergency
cases, the individual concerned should not be deprived of his liberty
unless he has been reliably shown to be of ‘unsound
mind’. The very nature of what has to be established before the
competent national authority—that is, a true mental
disorder—calls for objective medical
expertise”.
The reference
is not to the expertise of a psychiatrist; it is to “objective
medical
expertise”.
The
competencies that we have set out for becoming a responsible clinician,
which have been developed in conjunction with stakeholders, including
the Royal College of Psychiatrists, state that a clinician must have
the ability to identify the presence and the severity of a mental
disorder. I stress to hon. Members that if the person lacks that
expertise, they will not qualify to be approved to carry out the work.
It is those competencies, which will be in statutory directions, as
opposed to the possession of a particular medical qualification, that
will ensure that an approved clinician can provide the objective
medical expertise required by Winterwerp. That is also, by the way, the
view of Queen’s counsel. I am sure that hon. Members will have
seen the document from the British Psychological Society—I hate
to mention it again!—which sought independent counsel to verify
that that it is the correct
position.
Angela
Browning:
Under what the right hon. Lady is outlining,
could there be a responsible clinician who did not have the medical
qualification that would be sufficient to oversee a treatment plan? If
so, who would take responsibility for the treatment
plan?
Ms
Winterton:
As I have said over and over
again, it depends on what is right for the individual. If we are
talking about psychological therapies being right for the individual,
the responsible clinician should be the person who delivers those. If,
as my hon. Friend the Member for Stockport mentioned, there was a case
of paranoid schizophrenia that required medication levels that needed
to be medically assessed, it would be right that a medical practitioner
played that role. We are talking about what is most appropriate for the
individual
patient.
5.15
pm
Tim
Loughton:
I hope that the Minister will address my point
about the Varbanov v. Bulgaria case. It was made clear in the
court that the opinion of a medical expert who is a psychiatrist is
necessary to qualify as objective medical
expertise.
Ms
Winterton:
Yes, I will address that. The
Joint Committee on Human Rights talks about the case of Varbanov v.
Bulgaria in support of its view that objective medical expertise
involves reports from psychiatrists who are doctors. However, the
Government believe that the specific reference in that case to the fact
that
“a prior appraisal
by a psychiatrist...was possible and
indispensable”
related to
the specific circumstances of the case. We accept that the case
confirmed the need for a medical expert’s opinion where someone
of unsound mind is to
be detained, but we do not agree that it gives authority to the
proposition that a psychiatrist must provide the necessary medical
expertise in each
case.
Let
me just clarify some of the issues, because that might help the
Opposition. Clause 25 already requires the responsible clinician to
consult one other person who is professionally concerned with the
patient’s case before renewing detention. Good practice would
certainly dictate that all members of the multidisciplinary team,
including the doctor, were consulted, and that is generally what
happens. However, I am quite willing to say that we can look at the
code of practice if Opposition Members feel that that would be a good
way of strengthening how decisions on renewal take place. That would,
however, be in the context of there being a responsible clinician, and
the Opposition are currently saying that a responsible clinician should
not exist in the first place. I hope that that explanation is
helpful.
Tim
Loughton:
It is helpful on a different
subject, because the Minister’s colleague in another place
promised to return to the issue of how the code of conduct might be
strengthened to give us some reassurance, but that has not yet
happened, and I wonder how long the Government will take. However, to
take the Minister back to her response to my query on Varbanov
v
. Bulgaria, where has the legal opinion
that she quoted been published? Where can members of the Committee have
access to that opinion, which was commissioned by the Government, so
that we can better inform our deliberations? I have not seen
it.
Ms
Winterton:
I do not know where it has been published, but
I can look into the matter for the hon. Gentleman if that would be
helpful. I am more than happy to do that, but I do not have details of
it in front of me—[
Interruption.
] As if by
magic, here it is, which is excellent. I am more than happy to let him
and other members of the Committee have copies if that would be
helpful.
Ms
Winterton:
I accept that the hon. Gentleman would like to
see the opinion, but I can do no more than suggest that I send it to
him, as I said. I hope that he will think that that is entirely
reasonable.
The hon.
Gentleman made a point about the code of practice, and we need to be
sure about the outcome of the parliamentary process before we finally
consult on what will be in the code. I am more than happy to say that
we can start discussions and put forward wording to show how we might
clarify how a decision to renew detention would be made and how members
of the multidisciplinary team would be involved. Again, however, I
emphasise that we should do that in consultation with the professions.
We should not just do things quickly and involve only parliamentarians,
because the professionals would not find that very
satisfactory.
To reiterate,
my fear is that the Opposition do not believe in the idea of having a
responsible clinician because they want to delete clause 11, which
actually establishes the responsible clinician. In the light of that, I
think that some of the debates that we have had about
clause 6 are a bit disingenuous. The Government think that the clause is
patronising to non-medical professionals. The responsible clinician
competencies insist on a high level of skill, including the ability to
recognise the existence and severity of a mental disorder. Yet, the
clause says that despite the clinician’s ability to determine
whether it is necessary for a patient to be detained in hospital
because they have a mental disorder severe enough to warrant it, that
decision must be signed off by a doctor. The Government believe that
that is completely the wrong approach and I will be asking Government
Members to oppose the clause.
Question put, That the
clause stand part of the
Bill:—
The
Committee divided: Ayes 6, Noes
11.
Division
No.
6
]
AYESNOES
Question
accordingly negatived.
Clause 6 disagreed
to.
Tim
Loughton:
On a point of order, Lady Winterton. I
thought I had said that we wished to vote on amendments Nos. 60 and 61.
May I not do
that?
Clause 7
ordered to stand part of the
Bill.
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