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I accept that there have been doubts and concerns about the effect of the new test. Genuine worries have been expressed by a number of organisations. That was raised by my hon. Friend when he tabled his amendment
in Committee. I agreed to consider it then, but in the meantime my hon. Friend discussed it with a number of organisations, clinicians and others.
The amendment that we are discussing today has considerable support from Members in all parts of the House. I have given it serious consideration, and have met representatives of several organisations. I recently met members of the British Medical Association, who urged me to support the amendment provided that it was clear that “manifestations” were linked to an underlying mental disorder. My hon. Friend rightly explained that manifestations of a mental disorder were the way in which the disorder was manifested. Clearly a disorder can manifest itself only in the thoughts and actions of the person who has the disorder, not in the reactions of others. The crucial difference is that this amendment describes the purpose of the medical treatment; it does not turn on the likelihood of treatments achieving that purpose.
The hon. Member for East Worthing and Shoreham (Tim Loughton) asked about the difference between signs and manifestations, as did the hon. Members for Southport (Dr. Pugh) and for Wyre Forest (Dr. Taylor). We believe that “manifestations” is better than “signs” because the latter can be interpreted more restrictively as only the things that clinicians observe in a clinical setting. The hon. Member for Wyre Forest was getting at that with his stethoscope point. Some clinicians use “signs” to mean only what a clinician can observe through examination at a specific time, which would exclude, for example, reports by third parties of self-harm or suicide attempts. The examination would, therefore, be confined to what was happening there and then. That is why we believe that “manifestations” is a better word to use than “signs”.
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My hon. Friend the Member for Rhondda, with the support of Committee members, and latterly of the Opposition parties, has certainly— [Interruption.] I carefully looked at the signatories to the amendment, and I am glad that the Opposition parties support it; I do not wish to give the impression that I begrudge that. My hon. Friend and the Opposition parties have proposed this measure and it is a good compromise. I assume that the Opposition parties had discussions with my hon. Friend, and I am glad that they wish to support his amendment. In light of everything that he has said—and of our meeting this morning when we discussed the “manifestations” issue and the fact that many organisations have backed his amendment—I am glad to say that the Government will agree to the amendment.
Amendments made: No. 2, page 4, line 18, after ‘care’ insert—
‘(but see also subsection (4) below)’.
No. 3, page 4, line 18, at end insert—
‘(3) After subsection (3) insert—
“(4) Any reference in this Act to medical treatment, in relation to mental disorder, shall be construed as a reference to medical treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations.”.’.— [Chris Bryant.]
‘( ) The 1983 Act is amended as follows.
( ) In section 3 (admission for treatment) after subsection 2(a) insert—
“(aa) that because of his mental disorder, his ability to make decisions about the provision of medical treatment is significantly impaired.”.’.— [Tim Loughton.]
Brought up, and read the First time.
Tim Loughton: I beg to move, That the clause be read a Second time.
My speech will take a little longer than the Minister just took in eventually forcing herself to say that she supported the last amendment we discussed. I hope that she will take a little less time to reach the same denouement on new clause 12. It should come as no surprise to her, as it mirrors amendments tabled in the Lords which she promptly savaged in Committee on very poor grounds. I hope that she has reconsidered and consulted experts, and will admit the error of her ways by now agreeing to restore this rightful amendment to the Bill, whose provisions were originally added to it in the Lords.
New clause 12 represents a basic principle of mental health law: that patients should be involved in, and informed about, their treatment. People with mental illness are unpredictable. That is not something that just happens and goes away; it can come back, and people might live with many episodes of mental illness over many years. As a result, many people with mental illness develop a great knowledge of what works best for them when the illness flairs up; they develop coping mechanisms. They will therefore have their own views on the long-term use of what are powerful and potentially harmful drugs. Such drugs might be deeply unpalatable for some; we have addressed side effects in the past, such as weight gain, diabetes and disabling, embarrassing and at times painful movement disorders.
It is essential that patients are involved in, and informed about, their treatment, and where they retain capacity, as many do, their wishes should be respected. The principle that compulsion should be the last resort underlies our approach to the Bill. For people with a mental illness, the best forms of therapy involve the trust of the clinician, who has the power to prescribe powerful—mind-altering or physical feature-altering—drugs. More than for any physical illness, it is essential that there is a position of trust between the patient and the clinician.
We must respect the autonomy, personal integrity and personal responsibility of the patient. That is a basic human right. In the Bill in its current form—without the impaired decision-making amendments, as added in the Lords—there are inconsistencies compared with how we treat physical illness. The Bill is also still stigmatising, so we have reinserted the amendment that gives an impaired decision-making test, acknowledging that if someone suffers from a mental disorder, it does not automatically mean that they are not fully able to make decisions. That should help to reduce stigma and enhance personal autonomy and responsibility. I would hope that the Minister—along with all the other people and organisations who are interested in mental health—supports that.
The addition of the impaired decision-making provision also makes the grounds for non-consensual medical interventions for people with a mental disorder similar to those for people with a physical disorder, thereby helping to reduce stigma and discrimination. I think that all Members agree that far too much stigma is still attached to mental illness. We have a lot more to do to reach a position where somebody going for treatment for a mental illness is viewed no differently from somebody going to a hospital for treatment for an illness such as cancer or heart disease. We are still a long way from achieving that. At the basis of our perceptions on this subject and how we can change them is the way we configure our laws on how people with mental illness are treated. That is why an impaired decision-making test is essential.
Ann Coffey: There is something I do not understand. We are talking about a situation in which two clinicians have already established that a person is suffering from a mental disorder and needs to be compulsorily admitted for treatment. Part and parcel of such a mental disorder is some degree of thought disorder—in a sense, that is the manifestation of the disorder. How does the hon. Gentleman’s extra condition of judgment being “significantly impaired” help the clinician who has already made the judgment that that person has a serious mental disorder?
Tim Loughton: The hon. Lady debated that with us in Committee, and I shall respond to her points later. However, it is important to recognise that many people with mental illness retain capacity and should therefore have the right to influence their treatment.
Angela Browning (Tiverton and Honiton) (Con): Does my hon. Friend agree that when we think about people who are detained, we may forget the spectrum of conditions for which people are sectioned? Some are voluntary admissions but many are in crisis, and it is often the sections made under crisis that we think about. However, I have known many cases in which people being sectioned were calm and rational through the admission process, so there is a spectrum of conditions.
Tim Loughton: That is absolutely right and reflects the point that I was making. It is an unpredictable process, and people go through highs and lows. Of the 47,000 sections last year, some 20,000 occurred after voluntary admission. Surely we want to encourage more people to engage with mental health services as early as possible, so that their condition is treated before it becomes more extreme and they have to have more extreme treatment, and might then be subject to compulsory sectioning. We are trying to encourage best practice and trust in the clinician, and to encourage people voluntarily to engage with mental health services.
Dr. Evan Harris:
I congratulate the hon. Gentleman on the point that he is making and the way in which he is making it. Does he accept that part of the stigma associated with mental illness is the presumption—the caricature, almost—that it inevitably involves total and enduring lack of capacity? That is simply not the case. It is a far more mixed bag, and I point out through the
hon. Gentleman to the hon. Member for Stockport (Ann Coffey) that it is not inevitable that lack of capacity occurs, as recent case law confirms.
Tim Loughton: The hon. Gentleman, who has great experience of these matters through his own medical background, is right. We need to appreciate, respect and publicise, as part of the image and stigma problems—
Ann Coffey: Will the hon. Gentleman give way?
Tim Loughton: Hold on. I am trying to answer the hon. Member for Oxford, West and Abingdon (Dr. Harris). Of course I will give way generously, as I always try to do, to the hon. Lady, if I may first finish my sentence—which I have now forgotten, so I give way.
Ann Coffey: I thank the hon. Gentleman very much. I was simply going to point something out, through him, to the hon. Member for Oxford, West and Abingdon (Dr. Harris). He is talking about capacity, but my point is, what will the phrase “significantly impaired” add to a clinician’s judgment? “Capacity” is a readily understandable term.
Tim Loughton: In order to make some progress, perhaps the hon. Lady and the hon. Member for Oxford, West and Abingdon would like to go outside and talk about this issue, or both contribute to this debate—if there is any time left after I have made my opening comments—rather than our holding this three-way conversation.
It is important to remember that if a patient with depression has a potentially fatal physical illness such as heart disease or cancer, they may be treated for it only if they give capacitor’s consent, or if they lack capacity and such treatment is in their best interests. In other words, the law permits that patient, if they retain decision-making capacity, to refuse treatment for an illness such as heart disease, but not for an illness such as depression. That is surely inconsistent and wholly illogical, and we are trying to achieve some consistency in the way that this legislation is framed. I make no apologies for returning to this very important principle in the Bill.
The General Medical Council said the following in response to the Government’s criticisms of our approach:
“We do not share the Government’s concerns that people who pose a risk to themselves or others could be excluded from the provisions of the Act because of this amendment. In determining whether a person is able to make a decision about medical treatment for their mental disorder, doctors would need to follow a process which assesses whether:
a. the person is able to understand that they have a mental disorder, what treatment is proposed and why the doctor believes it is necessary
b. they can retain and weigh up this information and make a reasoned decision whether to accept or refuse the treatment
c. their understanding or reasoning is distorted or impaired by their mental disorder.
We envisage that following this process would lead, in practice, to the conclusion that although a person who is suicidal or poses a risk to others may still have some capacity to make decisions, their ability to make decisions about medical treatment for their mental disorder is impaired and they are, therefore, able to be detained under the Mental Health Act, provided the other conditions under the Act are met.”
That counters the point that the Minister has made before in arguing that our proposals would in some way put at risk a large body of people.
Angela Browning: Does not the Mental Health (Care and Treatment) (Scotland) Act 2003 include a proposal such as this new clause, which applies to assessment as well as treatment? There have been no reports so far from clinicians or social workers that the measure is not working within that Act.
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Tim Loughton: My hon. Friend is right on both counts, and I will touch on that issue briefly in a minute. As the Minister is always keen to refer to that Act when it suits her, perhaps she will acknowledge that point now—when it suits us, for a change—so that we can draw on that experience, limited in time scale though it is so far.
Genevra Richardson’s expert committee on the 1983 Act recommended an approach to compulsion based on capacity. In her submission to the Public Bill Committee, she said:
“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...I would therefore urge the retention of clause 4”—
on impaired decision making, which we are trying to restore—
“in its amended form. The presence of impaired decision making as a condition for the use of compulsory powers is essential if we are to apply the recognised principles of health care equally across mental and physical disorder. It will help significantly to reduce both the discrimination reflected in the Mental Health Act 1983 and the stigma which feeds on it. In the years since the publication of our Report our understanding of the nature and extent of the stigma attaching to those with mental disorder has greatly improved...and it is clear that the retention of the impaired decision making amendment would mark a significant step in the battle to combat 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.”
Dr. Brian Iddon (Bolton, South-East) (Lab): The hon. Gentleman is arguing a fine line. The plain fact remains that many families have lost loved ones who committed suicide; they clearly needed to be treated, but were turned away and did not get that treatment. If the new clause is accepted, the number of such people might increase, and I cannot vote for the hon. Gentleman’s new clause knowing that that might be the case. What does he have to say to the families who have lost loved ones through suicide who did not get the mental health service treatment that they should have received?
Tim Loughton:
I would say to them that it is a tragedy, and that if suitable services had been available for their loved ones, some of those suicides—never all—might have been avoided. I would also say that is not the job of legislation to make up for the poor availability of services or for inappropriate services.
Moreover, there is no evidence that the inclusion of an impaired decision-making clause would reduce or increase the number of people under compulsory treatment in any case. The hon. Gentleman must also consider how the legislation is currently framed, and the fear that patients who retain some capacity might have in presenting to services if they think that they are then much more likely to be subject to sectioning and to have their own wishes, knowledge and experience overridden. They might not present to those services at all, and would therefore not get any help from them. Their condition might fester under the clinical radar and, as a result, they could be even more likely to commit suicide or to commit some harm against members of the public.
The hon. Gentleman has no evidence to back up the prognosis he is putting forward —[Interruption]—just as I have no evidence otherwise, as the Minister rightly says. It is a fine line, but surely the point is that it is better to encourage and entice people to engage with those services. Offering a framework that respects their integrity and their wishes when they retain the capacity to have sensible wishes is surely more desirable than saying that their wishes will be overridden, simply because the legislation does not accommodate them.
Dr. Iddon: Will the hon. Gentleman also accept that it is all very well to say that the person should engage with the services on a voluntary basis, but the trouble is that in practice the services are often not available at the moment of crisis, such as in the middle of the night or at the weekend?
Tim Loughton: If the services are not available at the moment of crisis, having a piece of legislation that says that the person’s wishes can be overridden will not make any difference. It is the services that make the difference, and the person may think that it is not worth engaging with the services, or they may be deterred from or frightened of doing so—perhaps because they have had long experience of mental health services or bad reactions to drugs that were forced on them against their better judgment. They might decide that they would rather suffer than run the risk of being dictated to by a psychiatrist who might be acting in their best interests, but who overrides their wishes even if they retain their capacity. The danger of those people slipping under the clinical radar is as dangerous, if not more dangerous, than the scenario the hon. Gentleman suggests.
Angela Browning: If the scenario is a crisis in the middle of the night, at which point help is being sought from the medical profession, the chances are that the decision making of the person involved is impaired.
Tim Loughton: That is the point that I have tried to make. If somebody has reached such a traumatic point in their life that they are contemplating suicide, they will, in most cases, have impaired decision-making capability and, therefore, the system and the legislation could pick them up. We covered that point in Committee, and if the hon. Member for Bolton, South-East (Dr. Iddon) will not acknowledge that, we will have to agree to disagree. He does not have empirical evidence for his view, as I do not, so I am siding with giving some credence to the decision-making capacity of the patient.
Tim Loughton: If the hon. Gentleman will forgive me, I wish to make some progress. We could get very hung up on this point, and it has taken some time already.
There is clear recognition of the importance of an impaired judgment standard in statements from the Joint Committee on Human Rights, whose Chairman is not in his place at the moment, although I am sure he will join us later, and in international standards. They include statements by the World Psychiatric Association, the World Health Organisation, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and the UN General Assembly.
The Joint Scrutiny Committee, of which I was a member, said in its report:
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