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“A large proportion of the evidence received by our Committee favoured a capacity-based approach as the starting point for a new Act, although some proposals were more radical than others. We believe that compulsory powers should only ever be used as a last resort when people are very seriously ill, and we do not agree that a person will become too seriously ill before an impaired decision-making criterion is met.”
Many professional bodies in the alliance have publicly supported that test, including the British Psychological Society, which the Minister has been praying in aid more than any other organisation to try to counter arguments being made in Committee. As has been said, the mental health legislation in Scotland has the same criteria as this new clause, albeit for the assessment stage as well as the treatment order. Anecdotal evidence from psychiatrists and social workers in Scotland suggests that it is not causing dilemmas for clinicians. The principle has been recommended for Northern Ireland, and it is a criterion for admission in other jurisdictions, including Ireland, New South Wales, North Carolina—where the famous Dr. Swartz hails from—Israel and Saskatchewan.
Lynne Jones (Birmingham, Selly Oak) (Lab): As the hon. Gentleman knows, I have much sympathy with the amendment and I agree with the argument that he is making. How would the new clause deal with the problem of fluctuating capacity?
Tim Loughton: That is a fair point, because people’s conditions do fluctuate. That point was addressed in Committee and in some of the submissions made to it. The new clause would not remove the discretion of clinicians to make a judgment on how someone’s condition varies.
The General Medical Council also said:
“The requirement that a person’s decision-making ability must be significantly impaired before they can be detained and treated without their consent is consistent with the guidance the GMC issues to doctors, in which we make clear that doctors are expected to respect the wishes of patients who have capacity to make their own decision about treatment or care or disclosures of confidential information, and to act in the best interests of patients who lack such capacity. Those are fundamental principles of good medical practice which we would expect to see applied to decisions involving patients with mental disorders in the same way as those suffering from physical disorders.”
This is not some hare-brained scheme plucked out of the air. This principle, wording and concept are used in other countries and jurisdictions and are backed by a raft of respectable medical professional bodies.
James Duddridge (Rochford and Southend, East) (Con): My hon. Friend has not yet referred to the Disability Rights Commission. Has he met representatives of that organisation? It supports new clause 12 because it says that if the new clause is not accepted, the Bill will be highly discriminatory. If the Minister is unwise and does not accept the new clause, does my hon. Friend feel that that decision will be subject to legal challenge?
Tim Loughton: I have not met the commission recently, but I have read its submission. Its members have every reason to be concerned if the new clause is not accepted, because they feel that if their views are overridden—
Ann Coffey: Will the hon. Gentleman give way?
Tim Loughton: The hon. Lady is very keen. I will give way to her in a moment, when I have finished replying to the previous intervention. The commission’s members are concerned that if their judgment and decisions are overridden, they will be deterred from engaging with mental health services in the first place.
Ann Coffey: The hon. Gentleman still has not addressed the point that I made earlier. Other parts of the Bill refer to the “capacity” of patients to make decisions. The new clause talks about the ability to make decisions being “significantly impaired”. I have asked him to explain how that extra test will add to the ability of the clinician to make a judgment about whether someone should be compulsorily detained. Is he applying a different test to mental capacity? If so, is it a higher test that the mental capacity test or a lower one? [ Interruption. ] If it is the same test, why does he not talk about capacity, instead of significant impairment of judgment? He has said that it is not our job to make clinicians’ decisions, but it is our job to put comprehensible legislation on the statute book.
Tim Loughton: Game show like, my colleagues shout, “Lower”, because it is a lower test —[ Interruption. ] You don’t get anything for a pair on this show, either. That is the answer —[ Interruption. ] Well, the civil servants are usually in the Box—
Madam Deputy Speaker: Order. I remind hon. Members that there should be no reference to Strangers in any of the Galleries.
Tim Loughton: Thank you, Madam Deputy Speaker. I have lost my place, but I will try to plough on.
Angela Browning: I hope to be helpful to my hon. Friend by pointing out that within the context of mental health legislation, clinicians regularly work with two tests that are interrelated. For example, they regularly work with the concept of capacity to consent to treatment as well as notions of insight into illness. That is not unusual, and that is probably what the hon. Member for Stockport (Ann Coffey) is alluding to when she says that there are two tests. That is true, and it is not unique.
6.30 pm
Tim Loughton: I am grateful to my hon. Friend. Rather than going through that conversation again, I shall give way to my hon. Friend the Member for Rochford and Southend, East (James Duddridge).
James Duddridge: The proposed test is a lower one, but my understanding is that the word “capacity” is used to refer to brain damage, which can be physical as well as mental. In contrast, an “impairment” is purely mental. Does my hon. Friend agree that the word “capacity” extends to people who have suffered a physical disruption to the brain in road traffic accidents?
Tim Loughton: That could be part of it, but the matter is not so straightforward.
Dr. Evan Harris: I am trying to understand the point made by the hon. Member for Stockport (Ann Coffey). I was not a member of the Committee, although I accept that she was and that she has explored the matter in detail. She said that the existing legislation contains a clear capacity test, but I do not think that it does. Essentially, a doctor or an appropriate clinician judges that a person is suffering from a mental disorder and should be detained. That is not a blatant capacity test, so it is appropriate to introduce an impaired judgment test to capture the point that the hon. Member for East Worthing and Shoreham (Tim Loughton) has made.
Tim Loughton: I shall not give way for a while, as several conversations seem to be going on at the same time. Those hon. Members who want to make a contribution to the debate should do so before the Minister accepts the new clause.
The breadth of the law as its stands contrasts with the provisions in most countries, where the seriousness of a condition, or the harm that might be caused, are essential criteria for detention. We consider that the criterion of impaired decision making provides a preferable alternative to the seriousness criterion in the 2004 Bill, because it is more specific and directs the clinician to the correct issue of patient choice and autonomy.
The vast majority of people with a mental illness, like those with a physical illness, retain in full their ability to make their own decisions throughout. They are treated by GPs or psychiatrists without being detained. Of those who are detained under the Mental Health Act 1983 some, as I have said, will also retain their capacity. A recent study found that 15 per cent. of detained patients, especially those who had been detained on a previous occasion, retained their capacity.
The authors of that report also found that a capacity test worked with a high level of reliability, which answers part of the point raised by the hon. Member for Stockport (Ann Coffey). The IDM test imposes a lower threshold, and does not apply to section 2 patients. If it were passed into law, I believe it would lower the percentage of detained patients who retain their capacity.
What are the consequences of failing to take account of decisions taken by a person who has insight into his condition and is fully capable of making a choice? I think that there are four. First, patients with full capacity come to resent their psychiatrists. As I said earlier, they tend to avoid their services for fear of being forced to have treatment that they do not want and which they believe may be harmful to them physically. That in turn can lead to them becoming more ill, with some slipping below the clinical radar or being deterred from presenting in the first place.
Secondly, patient outcomes may be damaged if personal decisions are not taken into account. Thirdly, patients may be harmed by treatment that may be unnecessary, and fourthly—and most importantly—stigma is increased. Failing to take account of vulnerable people’s decisions can, and does, destroy their trust in the medical profession, on whose members they rely for mental and physical health.
Inevitably, detention in hospital is a major disruption to a person’s life. In the context of the blame culture, in which every tragedy caused by a patient can potentially be attributed to misjudgments by a psychiatrist, psychiatrists often feel required to section patients against their better judgement or the best interests of those patients.
The predictable consequence of the present law is that people with full capacity can stay away from the psychiatrist because they can justify an irrational fear of being detained. In that sense, the law is totally counter-productive: as I have said before, we need patients to engage early.
Tony Zigmond, vice-president of the Royal College of Psychiatrists, has followed our proceedings very closely and I am sure that he is doing so at the moment. He has said:
“Enabling people to feel able to seek help early, to talk about their fears and difficulties, without fearing scorn, humiliation or loss of status, freedom, job and friends is the best way to bring about improvement in their health”.
As in other areas of medicine, the best outcomes are achieved when patients engage early, take a full and active role in their treatment and have trust in their psychiatrist or other professional. In that connection, the NICE guidelines on anxiety state:
“involving individuals in an effective partnership with healthcare professionals, with all decision making being shared, improves outcomes”.
Another aspect of the problem is the stigma felt by members of the black and minority ethnic community. They strongly support the new clause, and feel deeply stigmatised by the present law. The figures for the disproportionate detention and sectioning of people from the BME community bear out those fears.
Lynne Jones: Will the hon. Gentleman give way?
Tim Loughton: If the hon. Lady does not mind, I was going to end there. I wanted to make a number of other points but am conscious of the time, and I am also aware that she wants to make some comments of her own in support of the new clause. To ensure that she is not squeezed out, I shall finish my remarks now, save to say that the new clause should be added to the Bill as it is fundamental to our view of mental health legislation and to the need to respect people with a mental illness who retain capacity. I very much hope that the Minister will have a last-minute conversion and accept it.
Ann Coffey: I want to expand a little on the point I was making earlier, as I do not think I got a very satisfactory response.
Tim Loughton: I did not get a chance.
Ann Coffey: I gave the hon. Gentleman every chance: he just did not manage a satisfactory response.
The second set of provisions in chapter 3 is entitled “Consent to treatment”. Clause 27 deals with electroconvulsive therapy, for example, which can be administered only if an “approved clinician” has
“certified in writing...that the patient is not capable of understanding the nature, purpose and likely effects of the treatment”.
It is important that the same tests are applied in all parts of the Bill. The new clause would insert the new test
“that because of his”—
“mental disorder, his ability to make decisions about the provision of medical treatment is significantly impaired.”
That is different from the test used elsewhere in the Bill, which is based on the phrase “capable of understanding”. When challenged about whether the new test was the same or different, higher or lower, the hon. Member for East Worthing and Shoreham (Tim Loughton)—having being prompted by his colleagues in the Gallery—explained that it was a lower test.
That is not very satisfactory. The proposed additional test would be applied at a very important and significant moment in a patient’s life, and in the lives of his friends and carers. As a result of it, the patient would be compulsorily admitted to hospital for treatment of an underlying mental disorder that might be putting him or others at risk. It is not satisfactory for the hon. Member for East Worthing and Shoreham to be unable to say whether the test was higher or lower—
Tim Loughton: I said it was lower.
Ann Coffey: I am sorry, the hon. Gentleman did say that the test was lower. Will he say, then, by how much it is lower? How is it different from the test used elsewhere in the Bill? It is no use him looking at the Gallery, as I do not think that the people there will help.
Lynne Jones: Perhaps I can help my hon. Friend. The proposed test is different, as the term “capacity” relates to cognitive ability. The Scottish legislation deals with the matter adequately, holding that the concept of impaired decision making is separate from incapacity. The further factors that should be taken into account are set out in the Scottish provisions, with a patient’s impairment being measured, for example, by his ability to retain information concerning care and treatment, and to make decisions accordingly.
Ann Coffey:
I thank my hon. Friend for that intervention, but the Scottish provisions are as yet untested. When the hon. Member for East Worthing and Shoreham introduced his proposal, he said that he had no evidence about whether it would work. Parliament has a responsibility to put good legislation on to the statute
book, so I simply point out that his proposal is messy because there is no satisfactory explanation to show that it would operate any differently from tests in other parts of the mental health legislation.
Tim Loughton: In that case, why did the hon. Lady support community treatment orders yesterday? There is no evidence for their efficacy. She needs to be consistent.
Ann Coffey: The hon. Gentleman is proposing the new clause so it is his responsibility to explain what it means, instead of referring to some other aspect of the legislation.
Tim Loughton: I pointed out that a number of states already have an impaired decision-making test that has worked perfectly satisfactorily. There is no evidence that a capacity criterion would reduce the number of people under compulsory treatment, as the Minister claims it would. The Government object that the new clause might leave out people who need treatment. That might be true, but it is alarming to think that the state has reached the point that everyone deemed to need treatment should be detained if they disagree, which is what the Minister is trying to say.
Ann Coffey: I am sorry, but other countries have other mental health legislation; I am talking about the hon. Gentleman’s new clause. He has given no explanation of exactly what the test is and how it differs from the capability test in other parts of the legislation. Why should we adopt one test to judge whether a patient is capable of understanding the nature and purpose of the likely effects of electroconvulsive therapy, but an entirely different one when they are to be admitted to hospital under a compulsory order? It is the hon. Gentleman’s responsibility to explain that but he has not done so satisfactorily, so he does not deserve support for the new clause.
James Duddridge: Unlike the hon. Member for Stockport (Ann Coffey), I support new clause 12, which is well reasoned. In previous debates in Committee, I would have been minded to support the Minister’s arguments if mental health problems were indeed static for a period of time. I know that the Minister holds in great respect Patrick Geoghegan, the chief executive of my local mental health partnership. He told me about a schizophrenic patient who could hold a rational discussion at one meeting but at the next would be kicking and screaming and making a mess of the office. It was deemed that the patient could make decisions about her future treatment and she voluntarily accepted treatment. As it was recognised that she had capacity to make decisions because she allowed herself to be admitted to hospital for treatment, logically she should be allowed to decide which treatment she did not want. She might know her own needs and her own body—for example, that a drug did not work well—much better than the clinician.
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