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“the primary purpose of mental health legislation must be to improve mental health services and safeguards for patients and to reduce the stigma of mental disorder.”
The top priority is to improve services through the Bill and many other means, including investment. The second is the reduction of stigma, which is vital in getting people to engage with services, with voluntary services being just as important as the compulsory ones that we are discussing. Compulsion must be balanced with the proper safeguards. Another important reform, mentioned briefly earlier, is work force reform.
I should like to discuss the services available to young adults and children and I aim to speak later about the Lords amendment on age-appropriate treatment. I regret the fall-out between the Government and the Mental Health Alliance. The alliance is formed from a large number of organisations that all attract great respect for their work individually, so together they should be listened to. However, I do not share the alliance’s enthusiasm for the Lords amendments on impaired decision making and the question of treatability. I like the alliance’s arguments in respect of the overriding principles that it says should be in the Bill. Much of the disagreement between the Government and the alliance could be resolved if we put the principles in the Bill and got the wording right. We could certainly ease worries about the provisions on impaired decision making and treatability by getting those principles right.
I am not sure whether we can get the principles so well stated in the Bill so as to do away with the need for some exclusions. The Government have concluded that the Bill must still mention exclusions for drug and alcohol dependency. I should like the Committee to discuss whether we can get a statement of principles that is so well honed that we do not need a list of exclusions as well. If we could get to that position, we would bring our legislation nearer to that of New Zealand, Australia and Scotland, which we are now falling behind.
Some safeguards are missing from the Bill, and if I am a member of the Committee I will argue for them. The first is the one I mentioned to my right hon. Friend the Secretary of State: the right to independent advocacy for those subject to compulsory powers. The second is the legal recognition of a patient’s advance decisions and statements. The third is enabling patients to have greater choice and covers which persons exercise the powers granted to the nearest relative.
On the vexed question of community treatment orders, it is important to bear it in mind that we have experience of some controls over some patients in the community. We have the extended leave and
guardianship route and supervised discharge, or aftercare supervision. In itself, the idea of having conditions that enable people to be in the community rather than in hospital is accepted, and has been for many years in this country. However, community treatment orders would be a new provision. They are used around the world, but the research on the beneficial effects of those provisions—let us face it, they are fairly new in most of the countries concerned—is not yet conclusive one way or the other. It makes sense for us to have a cautious approach to the use of those powers and their application. But the Lords amendment goes much too far; the conditions that it puts on the application of the provision might kill it.
On work force reforms, it is desirable to build up the multidisciplinary team that will be responsible for providing services both in hospitals and, crucially, in the community, and to build up people’s confidence in it.
Madam Deputy Speaker: Order. The hon. Gentleman’s time is up.
7.4 pm
Angela Browning (Tiverton and Honiton) (Con): I declare an interest, as a vice-president of the National Autistic Society. I wish to refer to the impact of the Bill on people with autistic spectrum disorder.
I shall begin by picking up on the point made by the right hon. Member for Sheffield, Brightside (Mr. Blunkett) about a lawyer’s charter. I agree with him and others that if Ministers put the principles in the Bill rather than in the code of conduct, it would help others to determine Parliament’s intention. The Minister of State was reluctant to do that with the Mental Capacity Bill but changed her mind, I am pleased to say. I urge her to put those principles clearly in the Bill.
I am concerned about certain aspects of the Bill, particularly as they affect people with ASD. When the Minister of State gave evidence to the Scrutiny Committee, I expressed such a concern to her. I am pleased that the Government have looked again at the impact on people with a learning disability, but when the last Mental Health Bill was drawn up in 1983 very little was known about the autistic spectrum compared with today. Kanner’s autism was well documented but, since then, we have gained a lot more knowledge about the more able end of the spectrum, particularly Asperger’s syndrome. The combination of the powers of detention and the change in the definitions in the 1983 Act is a matter of concern in respect of people with Asperger’s syndrome.
People familiar with the condition will know that sufferers can from time to time demonstrate quite challenging behaviour, not because there is a psychotic base to it, but because of the nature of their disability. An episode is usually event-triggered, whereby the combination of great anxiety or great fear—something the person concerned would have difficulty articulating—leads the sufferer to behave in a particular way. Interestingly, the Bournewood case
involved an adult with autism who was unable to self-advocate and articulate his own condition when he was taken into hospital.
The Government made a concession in the other place to ensure that people with a learning disability are not considered to be mentally disordered unless they demonstrate very aggressive or seriously irresponsible behaviour, and I ask that that same concession apply to those with an ASD.
Ms Rosie Winterton indicated dissent.
Angela Browning: The Minister is nodding her head the wrong way, from left to right. I want it to go more north to south. I shall make this case again if I serve on the Committee. The Minister has heard me make the point before.
The difference of knowledge of this subject now compared with 1983 is clear. I have been very critical of psychiatrists and I am pleased to say that they are responding in the way in which they treat people with autistic spectrum disorders, particularly Asperger’s syndrome. But if we have a combination of diagnoses—an ASD diagnosis and a mental health diagnosis that are quite distinct and separate, or even a triple diagnosis of an ASD, a learning difficulty and a mental illness—we require people with a lot of experience and specialisms to sort out the behavioural messages coming from those different diagnoses.
My worry about the broadening of the definition of mental disorder is that for many people with an ASD, what many of us would regard as “normal” autistic behaviour will be misdiagnosed as psychotic behaviour because there are simply not enough mental health professionals around the country to be able to disaggregate those different behaviours. As I have often said, the result of that is misdiagnosis and mistreatment, which can have a serious and adverse effect on the health of an autistic person and on the environment into which the person is taken. One would put someone diagnosed with ASD into a hospital only if one were 100 per cent. sure that that was truly the last resort, because that environment itself would be extremely disturbing to them.
Advocacy is related to the issue I have been addressing, but it has broader implications in terms of mental disorders generally. I am pleased that under the Bill the Minister has closed the so-called Bournewood gap, about which she and I have had many discussions, by amending the Mental Capacity Act 2005. However, huge advocacy implications arise from closing the Bournewood gap, and other advocacy implications arise from the rest of the Bill. Therefore, it is with some distress that I learn that the Minister has reduced the amount of support—legislative and otherwise—that would give appropriate levels of advocacy to mental disorders both generally within the context of the Bill and particularly in terms of closing the Bournewood gap. In Committee I hope that she will propose impact assessments in respect of advocacy for the Bill as a whole and particularly the advocacy requirements that she anticipates will be needed to do true justice to the way in which she has decided to close the Bournewood gap. I am unsure whether information on that is available now, or if it is being worked on.
[Interruption.] The Minister is replying from a sedentary position, but perhaps she could respond to that later.
I have participated in many mental health debates in the House, and I wish to share my experiences not only on the autism front but of other cases that I have dealt with, particularly as a constituency Member of Parliament. I have had many cases where people have committed suicide, sometimes while they were in-patients, unfortunately. Some committed suicide after they had been an in-patient and had received community services. I dealt with one tragic case of somebody who was treated in the community and who ultimately murdered his mother. In all those cases, when I read the medical records—they have been made available to me—it is clear that there are common themes. There is a lack of early intervention: there is a long journey from the moment when the symptoms or concerns first begin to getting the person concerned in front of the professional who might be able to help. Having got to that point, there is also an issue to do with the long, ongoing treatment. Members understand that many people have cyclical conditions where there is a period when they are fairly stable but then go down, as that is the nature of many mental health disorders. However, there is often a lack of continuity in intervention so that such people simply fall through the net. That is a common theme in all the cases I have dealt with, including those ending in suicide and the one case where somebody else was found dead.
Ms Rosie Winterton: The hon. Lady is right that many of us have had experience of such constituency cases. The issue of compliance that she has picked up on highlights why it is important that we introduce supervised community treatment.
Angela Browning: I hope that the Minister and I will have an opportunity to talk about that further if I am fortunate enough to serve on the Committee, as it is an important matter.
I pay tribute to the Government for introducing some measures that are beginning to make a difference. For example, a GP practice might have access to a community psychiatric nurse who is associated with the practice. That enables GPs—who often do not have mental health specialisms—instead of merely writing a prescription, which frequently is all that they can do, to make a referral, in the knowledge that the patient will be seen quickly.
I cannot emphasise enough to the Minister how strongly I believe that early intervention in mental health issues can prevent serious cases from arising that grab headlines and are often the result of a failure of services—or of processes—to support the person concerned. If I serve on the Committee, I hope that the Minister will allow me to explore those issues a little more thoroughly with her.
7.15 pm
Mr. Andrew Dismore (Hendon) (Lab):
I speak in this debate as the Chairman of the Joint Committee on Human Rights and in support of our report on the Bill. The Bill is of major importance for the human rights of those with mental disorders, which is a highly
vulnerable group, including the right not to be subjected to inhuman or degrading treatment, the right of persons of unsound mind not to be deprived of liberty save in accordance with a procedure prescribed by law, and the right to respect for private and family life.
I know that the Government accept that this legislation must comply with our human rights obligations. The Secretary of State has certified her view that the Bill is compatible. My right hon. Friend the Minister helpfully wrote to me on the introduction of the Bill. She also wrote that the Government had conducted “an ECHR audit” of the Mental Health Act 1983, the principal piece of legislation amended by the current Bill, and that in respect of the 1983 Act they were
“not seeking to leave in place any provisions which we know or suspect to be incompatible”.
While I commend the Government’s approach to human rights in drafting the Bill, there remain issues on which my Committee has a different view.
We reported on the Bill in another place and amendments were made there, responding to some of our points. I am grateful for the Minister’s recent comprehensive response to our report, which we will publish soon. My Committee might report further, so it would be helpful to have a clear indication today of whether any of the amendments made in the other place will be accepted.
Mental health law is highly complex, so it is important to set out the arguments behind the JCHR’s concerns, to ensure that the House is aware of those human rights considerations. We considered that, broadly, the Bill satisfies the criterion of
“objective medical evidence of a true mental disorder”
for psychiatric detention to be lawful. However, we had concerns over the broader definition of “mental disorder” in clause 1. Given its breadth, we believed that it was desirable to include the principles of non-discrimination and proportionality in the Bill. On Third Reading in the other place, clause 10 was added, requiring fundamental principles to be taken into account when revising the 1983 Act’s code. Those include “minimising restrictions on liberty” and “avoidance of unlawful discrimination”. That was a welcome development, although it would be preferable to see those principles made directly applicable under the Act, rather than indirectly through the code.
As it currently stands, clause 3, which was not supported by the Government, narrows the definition of mental disorder, so that people could not be considered to have a disorder for the purposes of the Act solely on a number of grounds: substance misuse; sexual identity or orientation, which we considered in our report; commission, or likely commission, of illegal or disorderly acts; and cultural, religious or political beliefs. That clause provides an extremely important safeguard.
The Bill replaces the original test for detention of a person for treatment, which was that that treatment was
“likely to alleviate or prevent a deterioration of his condition”
“appropriate medical treatment is available for him.”
In strict convention terms, the JCHR saw no obstacle to that, although we noted the ethical concerns expressed by psychiatrists that they should not be custodians for preventive detention, but should be providing treatment of therapeutic benefit. Clause 5(3) reinstated a likelihood of benefit of treatment, and it would be a pity if the Government were to seek to overturn that.
The JCHR had stronger concerns as to whether the “appropriateness” test was sufficient to ensure convention compliance for treatments without consent requiring a second opinion under section 58 of the 1983 Act, such as pharmaceuticals for mental disorder or electroconvulsive therapy. We also considered that forcible feeding and other treatments invasive of physical integrity such as ECT should be subject to the same second opinion safeguards. In her recent letter, my right hon. Friend the Minister said that she would consider that, which I welcome, and we urge her to implement our recommendations.
On renewal of detention, rather than just the initial decision to detain, we shared the concerns of JUSTICE and the Council on Tribunals that the Bill provides for renewal on the report of a “responsible clinician” who need not be a doctor. That could mean that the decision is not in accordance with the need for objective medical expertise.
Clause 6 prevents a responsible clinician from renewing detention without the agreement of a registered medical practitioner who has examined the patient. We regard that as an important protection, which conforms with Strasbourg case law, and we would be very concerned if the Government opposed this clause.
In the ECHR case of JT, a patient claimed that she had no right to change her nearest relative, who was required to be informed when, for example, she made an application to a mental health review tribunal for a discharge from detention. Her nearest relative was her mother, who was living with a man whom the patient alleged had abused her. The ECHR concluded that the patient’s article 8 rights to privacy and family life were being breached, so the Government undertook to introduce legislation, first to enable a patient to apply for replacement of a nearest relative on reasonable grounds and, secondly, to prevent certain persons from acting as the nearest relative.
The Joint Committee agrees that clauses 26 to 29 of the Bill appear to meet the terms of the settlement in JT. However, given that applications to displace the nearest relative may be made by others, including hospital authorities, we had concerns that the new ground for replacement, of “unsuitability”, might be used to displace people who were merely seen as “difficult” by those authorities. We also believe that “unsuitability” is too broad a test to meet the Government’s apparent intention that patients would be able to displace nearest relatives only in situations of abuse or suspected abuse.
We commented in our report on the procedure for community treatment orders, which place conditions on patients living in the community, and especially the breadth of conditions that may be imposed. In the JCHR’s view, any restrictions on conduct should be
proportionate, and a patient should be entitled to a review of those conditions by a mental health review tribunal.
Mention has been made of Bournewood patients and some of the most complex provisions are in part 2, which amends the Mental Capacity Act 2005 to meet the Strasbourg judgment in the case of HL. HL was a compliant, incapacitated patient. The ECHR found that his admission to, and detention in, hospital, under the common law of necessity, breached convention articles 5(1) and 5(4). We reported that the procedures for legal authorisation to detain a compliant, incapacitated patient are unduly cumbersome and we doubted whether, even with professional advice, residential care home managers would understand them.
We are also concerned that the effect of Government proposals will be to apply means testing, charging persons deprived of their liberty and living in residential care homes for their care. That raises important human rights issues under articles 5 and 6; as well as discrimination issues under article 14, in that people deprived of their liberty in hospitals will not be similarly charged.
In our report we suggested two enhancements to the Bill. The first relates to the treatment of Bournewood patients, because the inadequacy of safeguards for them is very serious, given that they lack the capacity to consent. We do not believe that the common law and the Mental Capacity Act currently provide sufficient protection for the physical integrity of such patients. In particular, more needs to be done to address the issues raised in the case of Storck v. Germany, which concerned state control over private psychiatric institutions. The Bill would be an appropriate vehicle to introduce such provisions.
Secondly, we were concerned about the use of seclusion: safeguards should be placed in the Bill to ensure that seclusion is only used when strictly necessary and is subject to review.
There are other issues on which we did not comment directly, and the points that have been made about advocacy are very important. We also did not refer to the effect of the Bill on the rights of child mental health patients. I note and support the clause 24 amendment in the other place to require primary care trusts to provide age-appropriate services and accommodation for children and young people. I hope that we will be able to report further on the Bill to take account of some of the additional points that have arisen in the debate.
The Bill, of course, is about much more than human rights, as we have heard in the debate so far. Indeed, I think that this is the first contribution to refer to the issue of patients’ human rights in this context. I hope that the House will take into account the human rights of those vulnerable mental health patients who are detained or compulsorily treated by the mental health system in further consideration of the Bill today and in Committee.
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