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“separate to that of ‘incapacity’...However, when assessing a person’s decision-making ability, it is likely that similar factors will be considered to those taken into account when assessing incapacity. Such factors could involve consideration of the extent to which the person’s mental disorder might adversely affect their ability to believe, understand and retain information concerning their care and treatment, to make decisions based on that information, and to communicate those decisions to others...One difference between incapacity and significantly impaired decision-making ability”—
“arguably is that the latter is primarily a disorder of the mind in which a decision is made...on the basis of reasoning coloured by a mental disorder. Incapacity, by contrast, broadly involves a disorder of brain and cognition which implies actual impairments or deficits which prevent or disrupt the decision-making process”,
which is something that the hon. Member for Birmingham, Selly Oak referred to. These are nuances—some might say that this is dancing on the head of the pin—but I think that the Scottish code of practice sets things out clearly.
7.15 pm
Ann Coffey:
Does not the hon. Lady agree that it would be better if the same terminology was used throughout the Bill? She has gone to a lot of trouble to
try to explain slight differences between what phrases might mean. However, confusion would be created by accepting a new clause that used an entirely different phrase. That would be important, given that the Bill will be interpreted by the courts.
Angela Browning: This is my fifth year of studying the reform of the Mental Health Act 1983. I served on the scrutiny Committee and, like the hon. Lady, on the Public Bill Committee. I and many others have urged the Minister to use the Scottish Act as a blueprint for the legislation for England and Wales. If she had done so, we might not be dealing with such differences today. We could simply have lifted a lot from the Scottish Act and put it into our legislation, including the principles in the Bill. However, for an extraordinary reason that I still do not understand, the Minister and her team rejected that proposal, and the Bill is the poorer for it.
Dr. Evan Harris: I will take only a few minutes because I understand that the Minister will want time to respond to the debate. However, I want to deal with a couple of points that were raised. I realise that I was not a member of the Public Bill Committee. Many hon. Members who have participated in the debate have taken a great deal of interest in the Bill and have spoken about its details with knowledge. I speak for no one but myself.
The hon. Member for Stockport (Ann Coffey) claims that given that there is a definition relating to capacity in clause 27—she said that that measure related to consent to treatment, but it is actually on electroconvulsive therapy—any other definition in the Bill relating to capacity should use the same wording for the sake of consistency. However, that would be wrong, because it would mean that the test for admission would be the same as the test for ECT. As she probably knows better than me, given that she has followed the Bill’s passage, the architecture of the Bill is such that ECT has a higher threshold of incapacity than mere sectioning because anyone who was sectioned could otherwise have ECT administered to them. Although there might be merit in pure consistency, the example that she cited did not work because her point would undermine the separate threshold for ECT that exists for not only historical reasons, but clinical ones.
Ann Coffey: Is it the hon. Gentleman’s understanding that the impaired judgment test would use a lower threshold? If that is the case, will he kindly explain how low the threshold is?
Dr. Harris: The threshold is lower because I do not think that the supporters of new clause 12 would want people sectioned under the Mental Health Act 1983 to qualify automatically for ECT. Although the hon. Lady might not agree with me, I hope that she has received an explanation of her point from this side of the House.
Let me deal with the interesting challenge that the Minister gave the hon. Member for Rochford and Southend, East (James Duddridge). He deflected the challenge somewhat, but I am happy to meet it head on. I think that the hon. Member for Birmingham, Selly Oak (Lynne Jones), who spoke superbly, as she
always does on such matters, also would have done so. The matter was dealt with eruditely and logically by my hon. Friend the Member for Southport (Dr. Pugh), who has a PhD in logic.
The point to make is that it is possible to want to end one’s life or to have one’s life ended without necessarily having impaired judgment. It is also possible to have a mental illness as well. I shall describe two scenarios. If someone is terminally ill, they may reject immediately life-saving heroic treatment because they know that they are going to die and they want to exercise their autonomy and be allowed to die, not to have their life saved if they know they are going to die or suffer. Indeed, they may seek something that is unlawful in this country at present—assisted dying, which has never been opposed on the grounds of being irrational. It has been opposed for other reasons, which we cannot discuss now.
That is one scenario. It is possible in that scenario for the person to be depressed as a result of their terminal illness, and/or it is possible for the person to have a serious mental illness anyway, whether or not it is depression. Just because someone rejects non-mental treatment because they wish to die or end their life, which may be considered suicidal, does not mean that they should be sectioned. That is why a test such as the one proposed in the new clause in that small minority of cases would add extra confidence and insurance against what otherwise might be deemed to follow automatically—that is, sectioning—because the person is suffering from a mental illness, which makes it appropriate for them to receive mental treatment in a hospital for that illness, and to protect them from taking actions that might end their life. There is a case that the Minister must address, which the new clause seeks to do.
There is also the case—for reasons of brevity the hon. Member for Birmingham, Selly Oak did not go into it in as much depth as she might have done—about non-discrimination. People who refuse treatment that is life-saving and who are not terminally ill are entitled to do so if they retain capacity to do that. So a patient might, without not having capacity, refuse to have a big operation that a doctor would recommend and that would be life-saving. That does not mean that they are being irrational, that they do not have capacity or that their judgment is impaired. We do not force such physical treatment on them for their physical ailment.
As for people with a mental illness, although we must take care that we act in their best interests and I recognise the difficult judgments to be made, we should not presume—it goes to the stigma—that they have impaired judgment if they are not looking after themselves or have an intention that their life should end sooner rather than later.
It is vital that we ensure that people who have a severe mental illness and as a result of that are suicidal, are able to access treatment. I am satisfied, as I think my hon. Friend the Member for Southport was, that the new clause would not prevent that. It may help cope with stigma and raise doubts in the minds of people who might otherwise automatically seek to impose compulsory treatment on people with mental
illness. It represents an extra test that might prevent unnecessary restrictions of liberty where that is not appropriate.
I know plenty of people who have rightly been sectioned, who are not suicidal but who are self-neglecting to the point of infestation and to the point of malnutrition, who have a severe mental illness. I have sought in my medical practice to have them sectioned. A test of suicidal intent is not required. That was the point that I made to my hon. Friend the Member for Southport during his important contribution.
For reasons of addressing stigma and of identifying a group of people who, if the new clause were not in the Bill, might be compulsorily detained for treatment, who need not be detained and for whom it would be inappropriate, and in order to ensure that we as a House recognise the need not to discriminate—discrimination law is changing all the time and the Government have just proposed consultation on discrimination law, and if the Bill goes through unamended in this place that will put the Government on the wrong side of that case—I will support new clause 12 in the Lobby tonight.
Ms Rosie Winterton: With the new clause we are back on familiar territory. An amendment was inserted originally in the other place, which we took out in Committee, and it has been reintroduced today by the Opposition. It will not surprise them to know that I do not agree with the proposal in the new clause. I understand many of the points that have been made during the debate. I know that we are dealing with a sensitive issue. I listened carefully, as always, to my hon. Friend the Member for Birmingham, Selly Oak (Lynne Jones). I shall reiterate what we are trying to achieve through the Act, which is a sensitive piece of legislation because it affects extremely vulnerable people. It deals with their protection and the protection of others.
The primary purpose of the Mental Health Act is to provide an effective, properly safeguarded mechanism by which clinicians can intervene to protect people from the risks of mental disorder, where that is necessary. There are clear criteria for detention under section 3: first, that the patient has a mental disorder which makes medical treatment in hospital appropriate; secondly, that such treatment is necessary for the patient’s own health or safety or the protection of others; thirdly, that detention is the only way to ensure that the patient gets the treatment; and, thanks to the Bill, that appropriate medical treatment is available. We discussed that earlier today when I accepted the compromise amendment.
The new clause would introduce a new test which would subordinate issues of necessity and risk to the question of the patient’s decision-making ability. It builds on provisions that we have been working with since 1983. Detention should be based on whether the patient is at serious risk of harming themselves or others. What the new test would mean is uncertain, as it is unprecedented in English law. [Interruption.] I remind hon. Members that we are in an English jurisdiction.
I understand that the supporters of the new clause argue that if the patient understands that they have a mental disorder which can be treated, and understands the treatment on offer but decides to refuse it, as long as their decision has not been distorted by their mental disorder there can be no compulsory intervention,
whatever the risk to the patient or anyone else. We must be clear that that is the intent of the new clause. It has been interesting to hear the debate today about whether that would mean that some people could not be treated. I am clear that some people who are treated now would not be treated under the proposal, because their decision to leave themselves or other people at risk would take precedence.
That is the intention of the new clause. What are the reasons behind that? Let us consider some of the statements that have been made by the Opposition. I shall read into the record what has been said about the new clause. In the other place the Front-Bench spokesperson for the Conservative party said:
“My view is that if the risk they pose is to themselves, the law and the state have no business interfering in their lives; and if the risk they pose is to others, they are or should be the province of the criminal law.”—[ Official Report, House of Lords, 10 January 2007; Vol. 688, c. 233.]
That was the view expressed in the other place—that the state has no business to interfere. This goes back to arguments that the hon. Member for Oxford, West and Abingdon (Dr. Harris) made in asking why there is a distinction between what would happen with a physical illness and what would happen with a mental illness. There is a clear distinction. First, the person must have a mental disorder in order to be detained. Secondly, they must be a risk either to themselves or to others. Thirdly, detention has to be necessary and appropriate medical treatment has to be available. That is why there is a difference. We are talking about an individual who is going to commit self-harm or suicide, or harm others.
7.30 pm
I must remind the hon. Member for East Worthing and Shoreham (Tim Loughton) of what he said yesterday when we considered the Government’s victims rights amendments:
“The biggest tribute we can pay to victims and, we hope, to avoid there being more of them in future, is to make sure we do everything possible to stop perpetrators before they commit such ghastly acts.”—[ Official Report, 18 June 2007; Vol. 461, c. 1121.]
As I said, his spokesperson in the Lords said that
“if the risk they pose is to others, they are or should be the province of the criminal law.”
In other words, we should wait until people have committed a crime before we can intervene. That would be the effect of what is being proposed.
Dr. Evan Harris: I have a lot of respect for Earl Howe, but I do not tie myself to what he said. I agree with what the hon. Member for Birmingham, Selly Oak (Lynne Jones) said. It can never be rational to desire to inflict harm on others outside the boxing ring or the battlefield. If the Minister were to agree with the hon. Member for Birmingham, Selly Oak and say that the Government would table an amendment in another place that excluded that side of things from the test, which is otiose in such circumstances, I would accept that position. I ask the Minister please not to label those of us who take such views with words, whether or not they are correctly extracted, from a peer in another place—I can speak only for myself, but I suspect there are others.
Ms Winterton: So the hon. Gentleman is now saying that he accepts that we should not allow people to harm others, but that we should allow people to harm themselves. That is the obvious logic of what he has just said.
Ms Winterton: I shall certainly give way to the hon. Gentleman if he can tell me why he feels that it is okay to prevent people from harming others, but not to prevent them from harming themselves.
Dr. Harris: The reasons are the same as those for which we do not impose physical treatment on patients who have capacity and do not have impaired judgment, but who reject physical treatment, even when it might save their lives. There will be very few patients with mental illness who do not have impaired judgment—I accept that point—but there will be some, and why should they be treated differently? We have to act proportionately, and I think that the proposed arrangement would give a fair balance in the case of self-harm.
Ms Winterton: Okay, we are now down to saying, “Let’s treat it in the same way as we treat physical illness.” The hon. Gentleman therefore wants a new threshold, and he has now accepted that there will be people who will not be treated if the House agrees to what is proposed. Effectively, we would be saying that we did not want such people to harm others, but that it was fine that they could go away and commit suicide, even though they had a mental disorder and were a risk to themselves. It is sometimes quite difficult to work out whether somebody is a risk to themselves or to others; most clinicians will say that it is difficult to make the distinction. The hon. Gentleman is therefore introducing a difference between two groups, but I would say that that is quite difficult to do. We would be saying that, although appropriate medical treatment was available, a new test meant that people would be excluded from treatment. We need to be clear that that is what the House is now considering and what would be brought about.
Tim Loughton: The Minister has not identified who those people are. How will she predict who will be a serious risk to themselves or to others? She is not able to do that. In the definitions that I gave yesterday in respect of victims’ rights, the point that I was making absolutely clearly was that we should do everything we can to make sure that people do not get into such a desperate state that they commit ghastly acts to others or themselves. The point of the new clause is to ensure that they are not discouraged from presenting early so that they can get the help voluntarily or compulsorily to ensure that they do not reach that desperate stage.
Ms Winterton: Once again, the hon. Gentleman needs to look at the amendments that he is tabling. There is nothing in what he proposes that would bring people forward for treatment earlier. I would like to pick him up on that point. I think that the hon. Member for Tiverton and Honiton (Angela Browning) was hoping to avoid future criticism by saying that there would be sufficient protection to ensure that everybody who was covered at the moment would be covered in future.
Ms Winterton: If the hon. Lady is not saying that, that is fine; I shall give way to her.
Angela Browning: The point that I was making is that these matters come down to judgments on the part of clinicians. They will have those difficulties with or without the proposals. As my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) was saying, the idea of predicting with absolute certainty that, for example, somebody is going to go out and commit a homicide, having not done so before, is not credible. The Minister knows the figures; she has heard them from the Royal College of Psychiatrists. We would have to lock up and detain 5,000 people even to come close to finding one who just might do it.
Ms Winterton: But the hon. Lady knows that we already detain people.
Angela Browning: Not on that scale.
Ms Winterton: No, not on that test, because the test does not exist at the moment. The hon. Lady would be introducing a new test ensuring that people who get treatment at the moment will not do so in future. She must accept that.
Let me cite what the hon. Member for East Worthing and Shoreham said earlier in this debate. He said that very large numbers would have impaired decision making. He then said that some people would retain capacity, and quoted a study that said that 15 per cent. of people under detention retained capacity. He then said that the IDM test is a lower percentage, so there would be much lower numbers who could not be detained as a result of the proposal. [Interruption.] He said that the IDM test is a lower percentage, so let us look at the percentages. Let us look, say, at what would happen if 10, 5 or 2 per cent. of people could not be detained, and at what we are talking about in figures—real people who would not get treatment in future. There were some 22,500 detentions in England for treatment under section 3 in 2005-06. If 10 per cent. of those were ruled out, 2,250 people would not get treatment; 5 per cent. would be 1,125 people; and 1 per cent. would be 225. Those are real people who would not get treatment under the hon. Gentleman’s proposals.
Tim Loughton: They are not real people. Those are completely hypothetical figures that the Minister is characteristically using to try to caricature the case that is being put to her. I referred to a lower threshold. I also said that there is no evidence that she can produce that the numbers subject to compulsion will be higher or lower as a result of the proposal. What I did say is that people will be less deterred from presenting to receive the help and support of services, which we want to encourage them to do.
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