| Previous Section | Index | Home Page |
Ms Rosie Winterton:
That is exactly the point. The patient the hon. Gentleman describes had allowed herself to be admitted to hospital. She had decision-making capacity even though she was very ill, and she entered hospital voluntarily. The problem would be if a
person with the same medical condition, who had retained capacity and decided that they did not want to be treated, posed a danger to themselves or other people. Under the proposal the hon. Gentleman supports, that person could not receive treatment.
James Duddridge: I understand the Minister’s point, but if a mental health patient has a different view about the effects of treatment and says that they do not want ECT or a particular type of drug—even if at a later stage a doctor or a second doctor says they should have such treatment—they should be treated exactly the same as someone with a more medical problem.
Ms Winterton: The hon. Gentleman needs to differentiate a patient’s ability to contribute towards decisions about their treatment, which they can still do under compulsion. We have made it clear that we want the Act to work in that way, but in the case he describes the person could not be detained under the Act and receive treatment because they would have retained their decision-making ability. They would not have impaired judgment, so they could not be detained under the Act to receive treatment. That is exactly the problem.
6.45 pm
James Duddridge: If the patient subsequently lost the ability to make a judgment, would doctors have to take their original decisions—made when they had full capacity—into account, even if they did not feel the decisions were in the patient’s best interests? Perhaps the Minister will clarify that point in her comments.
In an intervention on my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) I mentioned the Disability Rights Commission, which strongly supports the new clause and believes that if it is not accepted the Bill will be “highly discriminatory”. Has the Minister taken advice about the likelihood of legal challenges that the Bill is discriminatory?
Ms Winterton: We are talking about the status quo. Does the hon. Gentleman know of any cases brought by the DRC against existing legislation?
James Duddridge: I was not able to meet the commission, which is why I asked other Members whether they had done so, and I do not have that information. However, the DRC says that the Bill is highly discriminatory. Those are strong words, which concern me, and I shall be further concerned if the Minister has not taken legal advice or discussed whether there is likely to be a legal challenge.
Finally, the British Psychological Society’s code of ethics and conduct requires psychologists to respect people’s right to self-determination. What will happen if the legislation requires health professionals to override the valid choice of a person with capacity? There is clearly a conflict of interest between the BPS code and the law we are trying to enact.
Lynne Jones:
This is a serious issue. My hon. Friend the Member for Stockport (Ann Coffey) is concerned that we should have good legislation, but all the
professionals who will have to implement the measure support the new clause. In fact, they would go further. The proposal applies only to section 3, not section 2, which covers initial admission for assessment. To some extent, I would prefer that the new clause applied to both sections.
All the professionals are familiar with the concepts involved, including fluctuation. Dr. George Szmukler’s memorandum to the Committee refers to the sustained resumption of capacity. One could envisage a scenario where someone who may have lost decision-making ability is admitted to hospital, gets well and recovers a degree of capacity. All those things can be taken into account, but the state of impaired decision making must not fluctuate. Similar provisions are in the Scottish measure, so I see no reason why they cannot work perfectly well, although I realise that there are issues relating to suicide, patient safety and public protection, which I shall address later in my speech.
Ann Coffey: Does my hon. Friend agree with the hon. Member for East Worthing and Shoreham (Tim Loughton) that this is a lower test than the test that is in the consent to treatment?
Lynne Jones: In one sense it is different, because if a person lacks capacity, it is a more or less permanent condition—such as in the case of a person with learning difficulties—whereas a person who may have a mental health condition can fluctuate between having impaired judgment to understanding and full capacity. It will be for medical professionals to make that judgment. They are well able to do so, and are willing and want to be able to apply this test.
Ann Coffey: I have listened to the explanations given by my hon. Friend and the hon. Member for East Worthing and Shoreham (Tim Loughton), and I am still very confused about the differences between the test of capability and this new test of impaired decision making. Even having heard my hon. Friend, I am still unsure. Does she agree that there would be quite a lot of confusion if two different tests were introduced, which might be tested in courts of law?
Lynne Jones: The professionals involved do not think that there is confusion, and there are briefings that explain it perfectly reasonably. I cannot find the exact page; I suppose I could read it out, but my hon. Friend has access to the briefings from the professionals involved, and I think that they are right. They are very comfortable with the new clause and the consequences that would flow from it.
As I am sure the Minister will argue in rejecting the new clause, if this test is introduced many of the people who are at risk of harming themselves or others may not receive the treatments they need. The original proposal came from the expert group, chaired by Genevra Richardson. We have her evidence to the Public Bill Committee, which the hon. Member for East Worthing and Shoreham read out. All this arose because the expert committee recommended a much wider definition of mental disorder, which we shall discuss later. One quid pro quo was that, while we had a wide definition, it would be narrowed in terms of invoking the concept of capacity—the concept of impaired decision making.
That was the basis of Genevra Richardson’s recommendation. It was a fundamental principle that was crucial in relation to the stigmatisation of people with mental health problems, so before I return to the issue of protection of the individual or the public, I want to spend a few moments considering that.
Stigma against people with mental health problems is so endemic in our society that people are ashamed of admitting that they might have a mental health problem. I have recently been involved with the all-party group on ME, and people will bend over backwards to avoid any idea that they could have a condition that might have a psychiatric element, because of the stigma associated with it. The social exclusion unit pointed out that six out of 10 employers would not employ someone who had a mental health problem.
The stigma is endemic in our society. I know, because my father suffered from schizophrenia, and when I was growing up it was something that one was ashamed of. I could never tell my friends that my father had schizophrenia. I could not take people home, because of his behaviour. People will not talk about mental illness. The situation is getting better, but the stigma is still endemic in our society.
We have been talking about public protection, and about preventing people from committing suicide. The most important thing that could be done to help us achieve public protection and protection of the individual would be to remove the stigma associated with mental ill health, which prevents people from coming forward because they do not want to admit their feeling that they may have a mental health problem. That, to me, is a crucial aspect of the Bill. A lot of the discrimination that would appear to be in the system, and the greater use of compulsion for people from black minority ethnic backgrounds, can be attributed to the fact that the stigma is even greater in some of our ethnic communities. In fact, when relatives do eventually refer a family member for help, they usually refer them to the police rather than to mental health services, such is the stigma associated with mental ill health. Genevra Richardson put it much more effectively than I can when she explained why she recommended that a judgment should be made about impaired decision making.
The Minister has given examples where she thinks that people who are suicidal may be deemed not to have impaired judgment, and therefore may not receive the compulsory treatment that they need—for example, if they are very seriously depressed. There is some difference amongst clinicians. Some clinicians say that as a result of the impaired decision-making requirement a very few people may not receive treatment; but the General Medical Council says that although a person who is suicidal may have capacity to make decisions, their ability to make decisions about medical treatment for their mental disorder is impaired because of their express desire to commit suicide, or the concern that they may do so.
I have to disagree with my right hon. Friend the Minister. In my opinion, someone who is suicidal because of a mental health problem—not perhaps someone who wants to commit suicide because they are terminally ill; I would distinguish between the two—does display seriously impaired judgment, and I believe
that most clinicians would take the view that such a person had impaired judgment and would require them to have treatment.
The expert committee recommended that an exception be made for people who may be a danger to the community. The Minister correctly points out that that situation is not catered for in the new clause, but I say to her, so crucial is this in relation to the need to combat stigma that I hope she will accept the amendment as currently worded, but seek to make appropriate modifications in another place that could take into account the recommendation of the expert committee.
In most of the cases where homicides have been committed by people with a mental health problem, the issue of impaired judgment would not have made any difference. Some were already subject to treatment; I cannot recall specific names, but there were people who were already under restriction orders, and their risk was inadequately assessed when they were released. The question did not relate to capacity; they were known to be dangerous. In many other cases, the failure of mental health services and the lack of co-ordination between different teams, and between social and health services, in providing for those patients led to the tragedies.
7 pm
The acceptance of the new clause will not mean that the public are less protected or that there is likely to be a greater risk of suicide among people with mental health problems. On the contrary, if we can combat stigma—and this is part of the necessary process involved—we could have much better mental health services and people could be much more willing to receive treatment, because they know that when their judgment is not impaired, they will be listened to.
There are many other measures in the Bill—particularly now that amendments have been made—that improve the current legislation. That is particularly true of advanced statements. Under the code of practice, practitioners will have to have regard to a patient’s wishes when the patient does not have impaired judgment. However, if my right hon. Friend the Minister accepts the new clause and, if necessary, introduces any further refinements to take on board the recommendations of the expert committee, the Bill will be even better.
Dr. Pugh: I am going to try to simplify things. The Mental Health Act 1983 laid down two conditions for detention: severe mental illness, and being a danger to oneself or others. Severe mental illness was defined as
“illness severe enough to require hospital treatment”.
That is a slightly unsatisfactory definition because it is culturally relative and in 1983 there were not the same alternatives to hospital treatment as there are now. None the less, the common law understanding and interpretation for more than 34 years has been that sectioning or detention requires a person to be severely mentally ill—no one can seriously doubt that. The second requirement is that one is a risk to oneself—the obvious example is suicide—or a risk to others, up to and including homicide. There is no doubt about that either.
The new clause—following the amendment in the Lords—adds a further criterion: impaired judgment. Initially, that sounds attractive, on the sound legal
principle that people without impaired judgment ought not to be detained against their will unless they have done some provable wrong. However, that leaves us with the crunch question: what happens to people who are severely mentally ill, suicidal or homicidal, but who have unimpaired judgment? Several answers have been given. One answer given repeatedly is that there are no such people; it is a null class. Mentally ill people who are suicidal or homicidal necessarily have impaired judgment. That is a good answer, but it renders the new clause entirely redundant, because anyone who meets the original criteria for detention—someone who has a severe mental illness and suicidal or homicidal tendencies—meets the impaired judgment test as well. The new clause would therefore be logically superfluous, if cosmetically attractive.
Dr. Evan Harris: Is my hon. Friend certain that the criterion is that someone is suicidal or homicidal? He is using shorthand. The threshold is somewhat less than that. He should not presume that all cases will use that criterion, rather than some lesser criterion of potential risk to oneself through neglect, for example.
Dr. Pugh: Yes, but nobody would get sectioned because they did not wash themselves well or something like that. People normally get sectioned only when they face a serious emergency and the physician feels that action must be taken.
I have come to the conclusion that for the case for the new clause to be maintained, we must believe that there are some severely mentally ill people who are a risk to themselves or others, but who have completely unimpaired judgment, or, at any rate, do not have significantly impaired judgment. It might be asked: who are they, how many of them are there, and how easy are they to single out given the lack of a universal or legal understanding of the impaired judgment criterion? Nothing I have heard today has satisfied me that we are using a particularly clear criterion or that we have a general agreement about it.
It also might be reasonably argued that letting people who are suicidal commit suicide if we think that they have unimpaired judgment is a fair price to pay for allowing them to retain the civil rights that we allow to all people who have unimpaired judgment. I call that the heroic civil liberties argument. That argument has been put and I respect and understand it, although I do not share it.
Further reflection has led me in a different direction. While I was trying to figure out who was in the category of mentally disordered, potentially suicidal people with unimpaired judgment, it was suggested to me by one of the measure’s proponents outside the Chamber that a mentally ill person might be suicidal because of unconnected things such as bankruptcy or terminal illness—the kind of things that would make a rational person consider suicide. However, we are talking about people who have a severe mental illness—an illness that haunts the mind, infects every mood, for most people permeates every waking moment, and spreads its dark shadow over all their actions. We are talking about people who are, in general, being ripped apart by their emotions. That is why they get themselves sectioned in the first place. I
simply asked myself whether such a person could dispassionately and rationally evaluate the state of their finances or their health prognosis—or anything of that major nature—uncoloured and unimpaired by, and immune from, the emotional storms within them.
To believe in such people seems almost to ignore the depths of suffering and confusion found among people who get themselves sectioned. It fails to recognise what those people are dealing with. Catholics such as me are supposed to believe six impossible things before breakfast, according to Chesterton, but I cannot summon up sufficient credulity to believe in this state of affairs. It defies my imagination and exceeds my current grasp. Even if we accept that a seriously mentally ill person who is a danger to themselves and has unimpaired judgment is a logical possibility, their existence is highly improbable and we are very unlikely to meet any such person.
I thus conclude—this may be a charitable conclusion that pleases everybody—the same thing that Baroness Murphy concluded in the Lords: whether the new clause is passed or rejected will make no real difference to the practice of psychiatry. We can relax.
Angela Browning: In supporting the new clause, and following on from the hon. Gentleman’s question about who the people who retain capacity are, I want to put on the record that a study published in The British Journal of Psychiatry in 2005 identified that 15 per cent. of patients detained under the Mental Health Act retained their capacity. That was particularly true of those who had been detained previously. Ignoring that group of people has real consequences. One of them was identified by the hon. Member for Birmingham, Selly Oak (Lynne Jones), who has great expertise in this subject. Stigma will be increased. There is also an effect on the relationship between the patient and clinician. Patients’ outcomes are damaged. All that would be addressed by the new clause.
I want to come on to some of the issues raised by the hon. Member for Stockport (Ann Coffey) a little later. I had real concerns about this aspect of the Bill right at the beginning, not least because of some of the examples that the Minister used on Second Reading and other occasions, and the consequences that have been touched on by other Members tonight, particularly in respect of those who might be potentially suicidal or a danger to others. I was particularly concerned about those who fall into the category of potentially suicidal, because, at one point, the argument appeared to be that, if they had capacity and it was their decision not to be treated, they should be told to go on their way, with the obvious catastrophic consequences. However, I have to tell the Minister that having made a particular effort to satisfy myself on this point, I now believe that that would not be the case because I do not think that any clinician would stand by and allow a person to commit suicide, or to be a danger to others. A person’s wish to die would be a consequence of a mental disorder, so in such circumstances, the clinician—
Ms Rosie Winterton indicated dissent.
Angela Browning:
The Minister shakes her head, but surely clinicians must make such decisions every day when dealing with potential suicides. Of course, potential
suicides are not only people who are crying out that they wish to end their lives. People who are deadly earnest about taking their lives—I am not putting people who choose to end their lives because of a terminal illness in this category—and are determined to do so often deploy all sorts of devices to try to conceal the decision that they have made. Clinicians have to make judgments today about whether such complicated people are intent on taking their lives. I see no reason to go along with the Minister’s suggestion that new clause 12 would deny clinicians the ability to make a judgment. If a person was considered to be a danger to others because he or she wished to kill someone else, that intent would be a symptom that the person was seriously unwell. The medical profession makes clinical judgments about such matters today, so I do not understand why new clause 12 would affect the situation.
When the Minister objected to such a measure in the past, she prayed in aid the example of an anorexic patient. However, clinicians tell us that someone with anorexia who believes that she is fat clearly has disordered thinking and thus has an impaired decision-making ability. I am satisfied that the concerns about the consequences of such a measure that the Minister outlined on Second Reading have been addressed. Patients in the situations that she described would be sufficiently protected.
This is a difficult area, especially with regard to the terminology used. We have discussed the difference between significantly impaired decision making and capacity or incapacity. The hon. Member for Birmingham, Selly Oak said that that had been outlined succinctly and thus denied herself the opportunity of sharing it with the House. I hope that you will indulge me, Mr. Deputy Speaker, if I share with the House the Scottish Executive’s code of practice on the Mental Health (Care and Treatment) (Scotland) Act 2003, which deals with this exact point. That Act is already in force and is being used every day.
The code of practice states that the concept of “significantly impaired decision-making” is
| Next Section | Index | Home Page |