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Ms Rosie Winterton: I ask the House to support Government amendments Nos. 6 to 9, 35, 38, 40, 44, 47 and 48, which deal with some small inconsistencies in parts 4 and 4A of the Mental Health Act 1983 that would otherwise result from the introduction of the role of the approved and responsible clinician.
Let me set out the background to why we believe that the responsible clinician role that we have set out in the Bill is extremely important. We spent some 10 years considering how to expand the team that takes care of people who have mental health problems. We have considered a multidisciplinary approach and giving new roles and responsibilities to others in the team, and we want to put that into practice by introducing the role of the responsible clinician. Some fears have been expressed about the introduction of that new role, because people wonder whether they will be experienced enough to take on new responsibilities. I appreciate the work that my hon. Friend the Member for Hendon (Mr. Dismore) has put into this issue. Perhaps we can give some reassurance by giving his Committee more information on the competences that we expect people who take on the role of responsible clinician to have. In those cases, we are talking about experienced psychiatric nurses, who may be nurse consultants, and about clinical psychologists. They have had years of training to get to the positions that they occupy. Beyond that, we are talking about new competences that we will discuss with the professions and others to make sure that when people get that new responsibility, they are perfectly able to deal with the medical issues that come before them.
The other issue that has arisen is whether what is known as the Winterwerp judgment dictated that medical expertise could be provided only by a doctor. I understand that there is an independent Queen’s counsel report from the Royal College of Psychologists on that judgment, and it has shown that medical expertise does not always have to be provided by a doctor. We are talking about others in the team, trained to a very high standard, who would be able to give medical expertise to patients who have been under their care for a long time. As my hon. Friend the Member for Hendon may know, 85 per cent. of those who work in mental health services have broken away from the Mental Health Alliance because they are very concerned. They include members of Unison and Amicus, the Royal College of Nursing, and the British Psychological Society, and occupational therapists, who all feel strongly that to undermine the role of the responsible clinician by accepting amendments that would limit that role is not an acceptable way forward.
Tim Loughton: I hear the point that the Minister makes; it was inevitable that she would make it. The five groups that she mentioned broke away from the alliance on a specific point. Does she accept that many members of the Royal College of Psychiatrists and the British Medical Association feel that the Government’s stance could undermine the position of psychiatrists and their highly trained, highly skilled role? However, our amendments in no way try to undermine the role of other vital professionals involved in multi-agency working, so it is not an either/or situation.
Ms Winterton:
I certainly accept that some psychiatrists are worried about other people taking on the responsibilities that we have defined. I also accept
that the hon. Gentleman has moved some way from his previous position, but his amendment No. 93 makes it very likely that a person who does not even know the patient could override the decision of the patient’s responsible clinician. The vast majority of approved clinicians will be psychiatrists, at least initially. Under his amendment, it would probably be necessary to go outside the team, or even the hospital, to find an approved clinician who belonged to a different profession from the responsible clinician. That may not be the intention of his amendment, but it is certainly a result of it.
Amendment No. 73, tabled by my hon. Friend the Member for Hendon, is unnecessary because the tribunal is an independent judicial body that can seek evidence from whomever it chooses. Amendments Nos. 70 and 73 assume that only a doctor or a clinical psychologist can provide objective medical expertise, but I assure my hon. Friend that the statutory competence requirements will ensure that all responsible clinicians can provide objective medical expertise. Again, amendment No. 70 would allow a doctor or clinical psychologist who might not even know the patient to override the decision of the responsible clinician. We do not think that that is a desirable approach. It could lead to inappropriate discharge, which I am sure is not what my hon. Friend would want, and that would put the patient, their family or even the general public at risk.
I hope that my hon. Friend will withdraw his amendment, and I hope that the Opposition will withdraw theirs, but I also hope that my hon. Friend and the Opposition will continue to work with us, and that we will be able to convince them on the subject of competences, which will ensure very high standards, in terms of the responsibilities that we want to give to the responsible clinician.
7.45 pm
Mr. Dismore: I listened to what my right hon. Friend said, and in particular to her undertaking to give us rather more detail on competences. If that detail includes how those competences will be assessed, I do not propose—
It being three and a half hours after commencement of proceedings on the programme motion, Mr. Deputy Speaker , put forthwith the Question already proposed from the Chair, pursuant to Order [this day].
Mr. Deputy Speaker then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.
Amendments made: No. 6, in page 8, line 33, before ‘person’, insert
‘responsible clinician (if there is one) or the’.
No. 7, in page 8, line 35, leave out from ‘(3),’ to end of line 37 and insert
‘for the words from “, and of those persons” to the end substitute “but, of those persons—
(a) one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner; and
(b) neither shall be the responsible clinician (if there is one) or the person in charge of the treatment in question.”’.
No. 8, in page 8, line 44, before ‘approved’, insert ‘responsible clinician or the’.
No. 9, in page 9, line 1, leave out from ‘(4),’ to end of line 3 and insert
‘for the words from “, and of those persons” to the end substitute “but, of those persons—
(a) one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner; and
(b) neither shall be the responsible clinician or the approved clinician in charge of the treatment in question.”’.— [Ms Rosie Winterton.]
Amendments made: No. 13, in page 17, line 32, after ‘being’, insert
‘the responsible clinician (if there is one) or’.
No. 15, in page 18, line 4, leave out from ‘treatment’ to end of line 7 and insert ‘but, of those persons—
(a) one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner; and
(b) neither shall be the responsible clinician (if there is one) or the approved clinician in charge of the treatment in question.’.— [Ms Rosie Winterton.]
Amendments made: No. 35, in page 27, line 19, leave out ‘approved clinician’ and insert ‘responsible clinician or the person’.
No. 38, in page 28, line 7, leave out ‘approved clinician in charge of the treatment’ and insert
‘person in charge of the treatment and an approved clinician’.
No. 40, in page 29, line 24, leave out ‘approved clinician in charge of the treatment’ and insert
‘person in charge of the treatment and an approved clinician’.
No. 44, in page 30, line 21, after ‘clinician’, insert
‘or the person in charge of the treatment in question’.
No. 47, in page 30, line 34, leave out ‘approved clinician’ and insert ‘person’.
No. 48, in page 30, line 38, leave out ‘approved clinician’ and insert ‘person’.— [Ms Rosie Winterton.]
Amendment made: No. 4, in page 33, line 44, leave out ‘16’ and insert ‘18’.— [Mrs. Moon.]
‘(1) The 1983 Act is amended as follows.
(2) In section 58(3), after first “patient”, insert “who is liable to be detained under this Act”.
(3) After section 58 of the 1983 Act, insert—
“58A Consent to treatment of community patients
(1) Subject to section 62A below, a community patient who has not been recalled to hospital shall not be given any form of treatment to which this section applies unless—
(a) he has consented to that treatment and either the approved clinician in charge of that treatment or a registered medical practitioner appointed for the purposes of this Part of this Act has certified in writing that the patient is capable of understanding its nature, purpose and likely effect and has consented to it; or
(b) a registered medical practitioner appointed as aforesaid (not being the approved clinician in charge of the treatment in question) has certified in writing that—
(i) the patient is not capable of understanding the nature, purpose or likely effects of that treatment; and
(ii) he has either no reason to believe that the patient objects to being given the treatment, or he does have reason to believe that patient so objects, but it is not necessary to use force against the patient in order to give the treatment; and
(iii) he is satisfied that the treatment does not conflict with a valid and applicable advance decision, or a decision made by a donee or deputy or the Court of Protection; and
(iv) it is appropriate for the treatment to be given.
(2) Where a patient who has been liable to detention under this Act has been administered medication for mental disorder to which this section applies for less than three months prior to becoming a community patient, the period mentioned in section 58(1)(b) above shall be read to extend for no longer than one month beginning with the day on which the community treatment order is made.
(3) The Secretary of State may by order vary the length of the period mentioned in subsection (2).
(4) Certification under subsection (1)(b) above may take place whilst a patient remains liable to be detained, but will not come into force until the responsible clinician discharges the patient from detention in hospital under the terms of section 17A(1) above.
(5) Before giving a certificate under section 58(3A)(b) above the registered medical practitioner shall consult two other persons, who have been professionally concerned with the patient’s treatment, but of those persons—
(a) at least one shall be a person who is not a registered medical practitioner; and
(b) neither shall be the patient’s responsible clinician or the approved clinician in charge of the treatment in question.
(6) In section 61(1), leave out “or “58(3)(b)” ” and insert “58(3)(b), or 58A(1)(b)”.
(7) In section 61(1)(a) after “20(3)”, insert “20A(4)”.
(8) In section 61(3) for “responsible medical officer” substitute “approved clinician in charge of the treatment in questions”.
(9) In section 61(3), leave out “or “58(3)(b)” ” and insert “58(3)(b), or 58A(1)(b)” ”.
(4) After section 62(2) insert—
“(2A) Section 62A below shall not preclude the continuation of any treatment or of treatment under any plan pending compliance with section 58 above where a community patient is recalled to hospital or a community treatment order is revoked and
(a) the patient is capable of understanding the nature, purpose and likely effect of that treatment and has consented to it; or
(b) the patient is not capable of understanding its nature, purpose and likely effect of that treatment, but it is not necessary to restrain the patient in order to give the treatment.”.
(5) After section 62 (Urgent Treatment) insert—
“62A Treatment on recall of community patient or revocation or order
(1) This section applies where—
(a) a community patient is recalled to hospital under section 17E above; or
(b) a patient is liable to be detained under this Act following the revocation of a community treatment order under section 17F above in respect of him.
(2) Subject to section 62 above, a patient to whom this section applies shall not be given any form of treatment to which section 58 applies without its certification under section 58(3)(e) following that recall or revocation.”.
(6) In section 64 (supplementary provisions for Part IV), after subsection (2) insert—
“(3) In this Part of this Act, references to ‘not capable of understanding the nature, purpose and likely effects of treatment’ are to be read in accordance with the test established at section 3 of the Mental Capacity Act 2005 (c. 9).
(4) References to a donee are to a donee of a lasting power of attorney (within the meaning a section 9 of the Mental Capacity Act 2005) created by a the patient, where the donee is acting within the scope of his authority and in accordance with that Act.
(5) References to a deputy are to a deputy appointed for the patient by the Court of Protection under section 16 of the Mental Capacity Act 2005, where the deputy is acting within the scope of this authority and in accordance with that Act.
(6) Reference to the responsible clinician shall be construed as a reference to the responsible clinician within the meaning of Part 2 of this Act.
(7) For the purpose of this section, a person restrains the patient if he—
(a) uses, or threatens to use, force to require the doing of an act which the patient resists, or
(b) restricts the patients liberty of movement, whether or not the patient resists.
(8) References to a hospital include a registered establishment.”.
(7) In section 119 (practitioners approved for Part 4 and section 118)—
(a) in subsection (2)(a) for “in a registered establishment” substitute “hospital or registered establishment or any community patient in a hospital or establishment of any description or (if access is granted) other place”,
(b) in subsection (2)(b), leave out “in that home” and insert “there”,
(c) after subsection (2) insert—
“(3) In this section ‘establishment of any description’ shall be construed in accordance with section 4(8) of the Care Standards Act 2000.”.’.— [Angela Browning.]
Brought up, and read the First time.
Angela Browning: I beg to move, That the clause be read a Second time.
Mr. Deputy Speaker: With this it will be convenient to discuss the following:
New clause 14— Authority to treat community patients (Mental Capacity Act)—
‘(1) The Mental Capacity Act 2005 (c. 9), is amended as follows.
(2) In section 28 (Mental Health Act matters) after subsection (1) insert “(1A) Section 5 does not apply to an act to which section 58A of the Mental Health Act 2007 (c) applies.”.’.
Amendment No. 89, in clause 29, page 19, line 24, at end insert—
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