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Mr. Charles Walker (Broxbourne) (Con): Thank you, Mr. Deputy Speaker, for calling me to speak in this good-natured debate. I assure you and the Minister that there will not be any strops from this Member of Parliament. There have been strops in the past, but he is in a very good mood and has had supper, so he is well balanced and his sugar levels are where they should be.
I welcomed the Ministers statement on new clause 4, which represents a great step forward, but I must express my concerns, although I will do so less eloquently than my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton). Adult wards are accommodating children, which suggests that there is a shortage of appropriate facilities in this country for young people with mental health problems. My hon. Friend said that people would rather go to appropriate facilities in Scotland than an adult mental health ward near their home. I hope that young people will not have to make such a choice and that appropriate facilities will be available near their homes. It is important that young people have their family and friends nearby at a difficult and traumatic time in their lives.
Will the Minister clarify where the resources will come from to fund the creation of additional suitable environments? She will be aware that Hertfordshires mental health trust is having to make significant cuts to its budget to contribute towards addressing the PCT deficit. I hope that the money for the creation of appropriate facilities will not be taken from another part of the mental health budget through a process of robbing Peter to pay Paul. The money should be additional to that already in the system and overall budgets should expand to ensure that young people are given suitable accommodation so that we can make them well as quickly as possible and return them to their families and friends in good time.
Ms Rosie Winterton: I thank the hon. Member for East Worthing and Shoreham (Tim Loughton) for his support. He talked about perverse incentives, which have been mentioned before. We did not want the Bill to lead to people being turned away from treatment, which is why we have adopted our approach. I assure him that we will engage with YoungMinds and the childrens commissioner. For the purpose of the debate, I will not use the title 11 Million in case that gives the impression that we will consult 11 million people, given that that would probably be slightly beyond what we could achieve. I am sure that the Opposition will continue to hold us to account until 2010 and beyond.
Tim Loughton: We will be in government by then.
Ms Winterton: Obviously, there will still be a Labour Government.
I thank the Committee chaired by my hon. Friend the Member for Hendon (Mr. Dismore) for its interest in the Bill and its probing and detailed approach. I thank him for his comments about the way in which I have engaged with the Committee and for saying that he will not press new clause 8 to a Division, in recognition of the fact that the Governments position has moved.
The hon. Member for Romsey (Sandra Gidley) was ably assisted by the hon. Member for Southport (Dr. Pugh)I am sure that his relatives will note the interest that he declared. I have tried to explain why
amendment No. 83, which was tabled by the hon. Member for Romsey, is unacceptable.
The hon. Lady called for greater clarity. As I said, we will examine the code. We will also continue to discuss with YoungMinds and the childrens commissioner the way in which we develop consolidated CAMHS guidance for practitioners, which is her particular concern, so that we can bring together a lot of necessary information and existing guidance. I assure her that we will keep her informed, perhaps through the organisations on behalf of which she spoke. If she knows of other organisations with concerns outwith those that I have named, she might like to let me have that information so that I can ensure that officials liaise with them on the guidance.
The hon. Member for Broxbourne (Mr. Walker) raised the question of cost and talked about the importance of services near to home. In my opening remarks, I pointed out how we are examining the commissioning of services with the Care Services Improvement Partnership. If we can get proper commissioning and the performance management about which we have talkedperhaps we could ask the Healthcare Commission to examine this matterwe can ensure that services are as near to home as feasible and that people are aware of where beds are available.
We will give funding estimates, and we will ensure that the health service has the necessary funds available. Our estimates suggest that there will be overall capital costs of £10 million as well as ongoing revenue costs. We will work closely with the health service. As hon. Members will know, we have already made announcements about this matter.
My hon. Friend the Member for Bridgend (Mrs. Moon) was right that 16 and 17-year-oldsthose affected by amendment No. 4, which she tabledare at an extremely vulnerable time of their lives. I was struck by the fact that she said that YoungMinds and the childrens commissioner were especially supportive of the amendment. I get the feeling that it is supported by hon. Members on both sides of the House, and we will certainly accept it. I congratulate her on introducing it.
Mrs. Moon: Should I withdraw the amendment?
Ms Winterton: No, my hon. Friend should not withdraw her amendment at this stage. The best thing would be to leave it in the hands of the House so that the Government can accept it.
I urge the House to support all the amendments that I have talked about, but to oppose amendment No. 83, which the hon. Member for Romsey tabled.
Clause read a Second time, and added to the Bill.
Mr. Dismore: I beg to move amendment No. 70, page 5, line 37, at end insert
(i) after paragraph (a) insert
(aa) to arrange for the patient to be examined by the registered medical practitioner or chartered clinical
psychologist who has been professionally concerned with the medical treatment of the patient; or if no such practitioner is available, a registered medical practitioner or chartered clinical psychologist who is an approved clinician; and,
(ii) in paragraph (b), for if it appears to him that the conditions set out in subsection (4) are satisfied, to substitute if the responsible clinician and the medical practitioner or chartered clinical psychologist (as the case may be) agree that the requirements of subsection (4) are satisfied, the responsible clinician shall.
Mr. Deputy Speaker: With this it will be convenient to discuss the following: amendment No. 93, page 5, line 37, at end insert
( ) In subsection (3), leave out from end of paragraph (b) to end of subsection and insert
(3A) Where a report under subsection (3) above is furnished in respect of a patient the managers shall arrange for an approved clinician who is a member of a different profession to that of the responsible clinician to examine the patient;
(3B) If it appears to him that the conditions set out in subsection (4) below are satisfied the approved clinician shall furnish to the managers of the hospital where the patient is detained a report to that effect in the prescribed form and where such a report is furnished in respect of a patient the managers shall, unless they discharge the patient, cause him to be informed...
Government amendments Nos. 6 to 9.
Amendment No. 73, in clause 13, page 9, line 38, at end insert
(3) In section 72 (powers of tribunals) after subsection (1) insert
(1A) In determining whether they are not satisfied that a patient is suffering from mental disorder of the requisite nature or degree for the purposes of subsections (1)(a)(i), (1)(b)(i), (1)(c)(i) or (4)(a) a tribunal must hear evidence from a registered medical practitioner approved for the purposes of section 12 of this Act or, in an appropriate case, from a chartered clinical psychologist...
Amendment No. 95, in clause 22, page 14, line 23, at end insert
(c) an approved clinician shall not make a report for the purposes of renewal of detention under section 20.
Government amendments No. 13, 15, 35, 38, 40, 44, 47 and 48.
Mr. Dismore: My right hon. Friend the Minister of State has yet to convince us on the point with which our amendments deal, and a meeting of minds may not occur. However, I hope that she will be able to make further progress on convincing us when she responds to the amendments.
Amendments Nos. 70 and 73 in this group, and amendment No. 79 in the next, are designed to give effect to the recommendations of the Joint Committee on Human Rights in its fourth report at paragraph 26, and its 15th report at paragraphs 1.7 to 1.14. Our amendments would ensure that registered medical practitioners provide objective medical evidence of a mental disorder to justify detention and to cases before mental health tribunals. Our concern is that case law from the European Court of Human Rightsin particular, Winterwerp v. Netherlands and Varbanov v. Bulgariarequires that objective medical evidence of a true mental disorder justifying detention should come from a medically qualified expert who has recognised
skills in psychiatric diagnosis and treatment. The Bills current provisions do not require that.
A surprisingly broad range of professional groups will be eligible to provide objective medical evidence of mental disorder, including occupational therapists and social workers. All must demonstrate an extensive list of competences, but some of the competences are very broad indeed. In our 15th report at paragraph 1.13, we make the point that it is not specified how people will demonstrate that they have those competences. We state:
The regulations say that the relevant authorities must have regard to references, but there seems to be no requirement for an examination.
The Committee points out that the approval process under section 12 of the 1983 Act that applies to doctors does not, in our view, work in relation to the competences, because many of the skills in question are medical skills, and occupational therapists and social workers do not already have the same baseline qualifications as doctors have.
Second, the competencies relating to assessment require first an ability to identify the presence or absence of mental disorder and its severity... One competency refers to the ability to undertake a 'broad mental health assessment and formulations (sic) incorporating biological, psychological, cultural and social perspectives.' Frequent use is made of the term 'broad'. The competencies require a 'broad understanding' of different mental health treatment approaches. It is questionable whether 'broad competencies'
meet the intention behind the Convention safeguard of objective medical expertise.
The European Court of Human Rights might well uphold a challenge based on Winterwerp and Varbanov in a specific case where, for example, detention was renewed on the basis of a report from an occupational therapist without evidence from a doctor that the patient continued to suffer from mental disorder of a nature or degree warranting confinement.
In her helpful letter in response to that report and the question how competences might be demonstrated, my right hon. Friend the Minister of State said that
we will be working with stakeholders to determine the kinds of experience and training that would enable a professional to demonstrate the competencies.
In other words, the detail is yet to be worked out. I believe that she accepts that the competences are rather broad. It is interesting to see how the problem is described in a briefing produced on behalf of a range of organisations, including Unison, the Royal College of Nursing, occupational therapists and the British Psychological Society. Those organisations say that
the responsible clinician role should be competency based
Responsible clinicians will be extremely experienced members of staff
will have met strict criteria
would have to pass several...thresholds
and so on. In other words, in anticipation of the details being worked out, they make favourable assumptions,
which I am sure my right hon. Friend will confirm. However, the detail is simply not there yet.
The reason that is important is set out in the briefing from Mind, which points out that we are talking about a person potentially losing their liberty
for up to 12 months on the say of a single professional.
Renewing detention is no less important or difficult than the original decision to detain.
At the very least there should be two suitably qualified professionals from different disciplines agreeing the detention.
Dr. Evan Harris (Oxford, West and Abingdon) (LD): As a member of the Joint Committee chaired by the hon. Gentleman, I have co-signed the amendment. I rise to assure him that, as someone who is clinically qualified, I think that he is on to a critical point. I am always in favour of extending doctors roles to other professions, but in relation to a loss of liberty for a long period, it is necessary to have the assurance that competence has been adequately assessed.
Mr. Dismore: I am grateful to the hon. Gentleman, whose professional background has enabled him to play an important role in our consideration of the Bill.
The point made by Mind is repeated by the Mental Health Alliance, representing patients in this context. It states:
The position under the 1983 Act, whereby a single doctor decides whether or not to renew a patients detention for up to twelve months is unacceptable.
The Alliance believes reform is needed that would satisfy the following principlesat least two professional opinions should agree the detention, with those opinions coming from different disciplines, and at least one of them providing the objective medical expertise required by human rights legislation.
When looking at renewal of detention, the British Medical Association also says that renewal should require opinions from
two professionals, from different professional backgrounds, one of whom must be able to provide objective medical expertise...as required under the European case-law.
In other words, the BMA makes the same point as the Joint Committee. The Royal College of Psychiatrists and the Royal Society reach similar conclusions in a briefing that they prepared on the Bill.
The Joint Committee is worried that, if the proposals in the Bill are passed as they standsimply based on broad competences, without any of the detail fleshed outthe UK is at risk of falling foul of the European Court of Human Rights in cases where detention under the Mental Health Act has not been authorised by a properly qualified medical practitioner. That is a real risk. I know that there are other legal views, but the Joint Committee has a good track record in offering opinions on such matters. I suspect that our opinion is more likely to be correct than legal opinions produced by those who are perhaps not quite as objective and independent as the Committee, to justify a particular cause or pressure groups views.
I hope that my right hon. Friend the Minister of State will provide more detail of what is going on in relation to competences. If she does, we might yet achieve the meeting of minds that has eluded us thus far.
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