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Mental Health Bill [Lords]

Mental Health Bill [Lords]

The Committee consisted of the following Members:

Chairmen: Miss Anne Begg, Frank Cook, Ann Winterton
Boswell, Mr. Tim (Daventry) (Con)
Browning, Angela (Tiverton and Honiton) (Con)
Bryant, Chris (Rhondda) (Lab)
Coffey, Ann (Stockport) (Lab)
Duddridge, James (Rochford and Southend, East) (Con)
Gibson, Dr. Ian (Norwich, North) (Lab)
Gidley, Sandra (Romsey) (LD)
Gwynne, Andrew (Denton and Reddish) (Lab)
Hillier, Meg (Hackney, South and Shoreditch) (Lab/Co-op)
Iddon, Dr. Brian (Bolton, South-East) (Lab)
Kidney, Mr. David (Stafford) (Lab)
Loughton, Tim (East Worthing and Shoreham) (Con)
McCarthy, Kerry (Bristol, East) (Lab)
Moon, Mrs. Madeleine (Bridgend) (Lab)
Naysmith, Dr. Doug (Bristol, North-West) (Lab/Co-op)
Pugh, Dr. John (Southport) (LD)
Rosindell, Andrew (Romford) (Con)
Walker, Mr. Charles (Broxbourne) (Con)
Ward, Claire (Lord Commissioner of Her Majesty's Treasury)
Williams, Hywel (Caernarfon) (PC)
Winterton, Ms Rosie (Minister of State, Department of Health)
John Benger, Committee Clerk
† attended the Committee

Public Bill Committee

Thursday 26 April 2007


[Miss anne begg in the Chair]

Mental Health Bill [Lords]

9.25 am
The Chairman: Welcome, everyone. You will notice that I am not Mr. Cook. He sends his apologies. I am afraid that you have me in the Chair all day.

Further written evidence to be reported to the House:

MH 51 Professor Swaran Singh
MH 52 King’s Fund

Clause 4

Impaired decision making: admission for assessment and treatment
Question proposed, That the clause stand part of the Bill.
The Minister of State, Department of Health(Ms Rosie Winterton): May I first welcome you tothe Chair, Miss Begg? It is a great pleasure to serve under you.
The Government are opposing clause 4. The clause goes to the heart of the issue of when people have to be detained in unfortunate circumstances. Obviously, we are referring to very vulnerable people whom we detain because of the risk that they pose to themselves or, in a small number of cases, to other people.
When I was looking through the Second Reading debate, it became clear that some of the Opposition’s arguments came from a libertarian approach. In effect, that means that the least compulsion is best and that people have a right to refuse treatment. That goes to the heart of the way one would approach physical health. However, I believe that there is a crucial difference when it comes to mental health in those circumstances. The effect of clause 4 is that no one may be detained under sections 2 or 3 of the Mental Health Act 1983 unless their ability to make decisions about their treatment is significantly impaired by their mental disorder. In other words, it superimposes on the Act an impaired decision-making test over and above what exists at the moment.
Mr. Tim Boswell (Daventry) (Con): The Minister is at least starting to explain very clearly the differences in the Committee. Would she not agree that the principles of autonomy and least interference that she set out are a good starting point and that any derogation from them—and there are many cases of that within the existing mental health legislation—should be precisely argued for and well justified? That should happen before any Member of the House even contemplates departing from them.
Ms Winterton: I absolutely agree. That is why we have set out the clear conditions for detaining someone that are in the legislation. It is exactly why we have two doctors, a mental health review tribunal and—and this is the crucial point—why the legislation is based on whether the person is a risk to themselves or to others. Those conditions form the basis of why we decide to take such a dramatic step for an individual. It is right that we protect people in those circumstances. As I have said, the clause goes beyond all the protections that we have at the moment and puts in place another test before somebody can be detained. We think that that test has no place in the Bill because it fundamentally changes the nature of the legislation. The reason for that is that patients’ needs and the risks posed by their mental disorders would no longer be what primarily determined intervention under the legislation. Instead, the patient’s decision-making ability would take priority in all cases except those of mentally disordered offenders. Opposition Members need to be absolutely clear that if the patient’s decision making were not impaired, the legislation would not be able to be used however much the patient would be at risk as a result.
9.30 am
Ann Coffey (Stockport) (Lab): Does my right hon. Friend the Minister believe that there is a further problem with the clause in that we already have the Mental Capacity Act 2005, which is very clear about what capacity is in determining the ability to make decisions? Introducing the term “significantly impaired” would add to the confusion about how capacity is defined—is significant impairment the same as a lack of capacity? That is somewhat problematic.
Ms Winterton: My hon. Friend has once again put her finger on it. Little is known about what impaired decision making or judgment would mean. We have the Mental Capacity Act, and I suggest that the clause would confuse impaired judgment and lack of capacity. We would be venturing down a track about which we know little and imposing confusion on the existing conditions.
Mr. Boswell: I am sorry that, as the Minister will well understand, the words “Mental Capacity Act” almost inevitably bring me to my feet. In the interests of clarification, and in the light of the intervention by the hon. Member for Stockport, does the Minister agree that the text that she seeks to delete is entirely within the spirit of the Mental Capacity Act, which is that different capacities are required for different decisions at different times? The test is not a general airy-fairy one about significant impairment; it is specifically about whether someone’s ability to make decisions about the provision of medical treatment is significantly impaired. That seems a precise test, not a general oneas the hon. Member for Stockport suggests.
Ms Winterton: If the hon. Gentleman is saying that the test would effectively be one of capacity, that is not what the proponents of deleting the clause are arguing. They are very clear that it is not a capacity test, which would be a much higher test. The hon. Gentleman is right that there are those who believe that it would be a capacity test, so the confusion gets even worse. We know what a capacity test is, but we do not know what an impaired judgment test is. The confusion that he highlights exists because we are clear about the fact that it will not be a capacity test.
Angela Browning (Tiverton and Honiton) (Con): I am sorry that the Minister was not there when we took evidence on Monday, because I raised the matter with the Royal College of Psychiatrists. I was a little concerned by some of the debate on Second Reading, but I was reassured by the response from the very people who would have to implement the provisions. In its written evidence to the Committee, the royal college states:
“The Act should limit the right to act against patients’ wishes to those patients whose ability to make decisions for themselves is impaired by their mental disorder.”
Psychiatrists seem to have a much clearer understanding of how they would interpret the clause than does the Minister.
Ms Winterton: It is possible to argue that during the course of assessing an individual and whether they should be detained, people consider that individual’s judgment and decision-making ability. I believe that that is certainly one of the procedures that a psychiatrist goes through. However, at the moment, for those people who do not have impaired judgment, what, in a sense, trumps that is whether that person is a risk to themselves or others. That goes absolutely to the heart of what happened on Second Reading. At the moment, although somebody may retain judgment, if the psychiatrist says that there is still a risk, it is the risk that is the trump. The clause would take that trump away.
I have had meetings with the Royal College of Psychiatrists and it is clear that there are people who follow the line that Opposition Members followed on Second Reading. That line is that, if somebody, having weighed up all the factors, has decided that they want to commit suicide, we should not stand in their way. The words that were used on Second Reading were that we should be willing to accept their verdict.
That issue relates to a question—why is mental health different from physical health? I know that that is an argument that some psychiatrists make. As legislators, we must decide whether we accept that argument. It has to be accepted that putting an impaired judgment test in the legislation would mean that there were people who would not be allowed to be treated under the legislation. That is because we would have to respect their opinion. I have had discussions with people from the Mental Health Alliance and they have said, “Actually, if someone’s life is so dreadful and they are homeless, have no friends, no job and they want to commit suicide, we should respect that”. That is the issue that is before us—it is straightforward.
Ms Winterton: I would be interested to know, therefore, what the RCP accepts as the definition and whether it agrees with the psychiatrists who say—this is the question that the hon. Lady might have wanted to ask the RCP—that the judgment of people such as the examples that I have given of young women with a borderline personality disorder is not impaired. They have had a terrible time in their lives due to emotional, physical or sexual abuse and they go through crises, but during that time their symptoms—what is happening to them—are explained to them, along with what treatments are available and how they can be cared for. During that time, one could not say that the judgment of those people was impaired.
I draw the hon. Lady’s attention to the evidence from the British Psychological Society. It says:
“We recognise that this approach may mean that a very small number of people believed to be at risk of self-harm or suicide would be permitted to refuse treatment if their decision-making was not considered to be significantly impaired.”
That is the reality. The other side of the question is that, if Opposition Members want to put this impaired judgment test in, it must be because they feel that there are people who are detained who still have their judgment but are at risk of suicide or self-harm. Hon. Members on the Opposition Benches say that those people should not refuse treatment. They have to ask themselves who is being wrongly detained and needs such protection.
Tim Loughton (East Worthing and Shoreham) (Con): The Minister is aware from her Department’s reports that a large number of suicides among people who have undergone some form of mental health treatment happen soon after they are released from hospital. How might those people be released under a community treatment order? Does she think that they will be restrained or deterred from committing suicide when they are back in the community and left to their own devices?
Ms Winterton: Obviously, that point relates to an entirely different clause. The evidence is that in the first two weeks after somebody is released from detention, when medication is still in their body, the compulsory treatment order is not necessarily effective. We know, however, that there is the potential to save lives during the following two weeks—the hon. Member for Daventry is nodding—if the person has stopped taking medication. The last confidential inquiry into suicide featured 56 people who had stopped taking their medication during that time. Opposition Members are wrong to oppose the measure. It comes down to libertarian attitudes.
Ann Coffey (Stockport) (Lab): Is there not another difficulty? We are talking about not only people whose own safety is at risk, but people who may pose a risk to the public. If the phrase “significantly impaired” is included in the legislation, presumably somebody who is detained because it is felt that they are a risk to the public may launch a legal appeal against the meaning of “significant impairment”. If the court were to find in their favour, as might well happen, that might deter practitioners from sectioning people whom they might otherwise have sectioned, which could result in an overall increase in the risk to the public.
Ms Winterton: My hon. Friend has quite rightly highlighted a couple of other problems with the new test that the Opposition want psychiatrists to apply. First, the test would change the balance of the Bill by saying that the issue that it would address trumps the risk issue. Secondly, my hon. Friend is quite right to say that if somebody were to appeal to a tribunal, there would be fluctuations in judgment; I think that everyone accepts that, particularly with regard to the point that the hon. Member for Daventry made about capacity. We all know that capacity can change. The test is not a capacity test, but there is nevertheless a possibility that someone’s judgment may be impaired at one point and that they may then go before a tribunal during the assessment period. The tribunal would have to look at them on the day and decide whether their judgment was impaired. That possibility also trumps the risk issue.
The third point that my hon. Friend the Member for Stockport made is that it can be difficult to say that an individual is a risk only to themselves. As a result of somebody’s fears about themselves or their intense problems, it is not always completely clear to psychiatrists where the balance lies. My hon. Friend is absolutely right to point that out.
9.45 am
Mr. Charles Walker (Broxbourne) (Con): May I take the Minister back to her quote from the British Psychological Society, and ask her if it was in support of her argument?
Ms Winterton: No, it was not. The British Psychological Society probably says that we should go ahead and do it. It is saying that it recognises that this approach will mean that a very small number of people believed to be at risk of self-harm or suicide would be permitted to refuse treatment if their decision-making was not considered to be significantly impaired. It accepts the approach taken by Opposition Members, that there will be people who would go away and commit suicide.
Mr. Walker: For the sake of completeness, I will read into the record the next sentence of the quote from the British Psychological Society brief, which states:
“But we believe that there will be very few such cases and there will be many more cases where a person will avoid grossly inappropriate violations of their autonomy.”
Ms Winterton: Opposition Members have to decide whether they are prepared to accept that “very few cases” is okay. If that is what they are saying, that is fine. Therefore, they must be saying that at present people are being detained who they believe should not be detained and who should not be receiving the help that they get at the moment.
On Second Reading the hon. Member for Broxbourne said:
“Let us imagine what would be the outcome if we were to follow the advice offered in an article in The Daily Telegraph today. The article is entitled:
‘MPs should vote to save innocent lives’.
It is written by Philip Johnston, who writes:
‘If this Bill will save lives, then Parliament has a duty to support it.’”—[Official Report, 16 April 2007; Vol. 459, c. 118.]
[Interruption.] I am sorry that his being home affairs editor means that Opposition Members think that we should not vote for something that will save lives. The article said that if the Bill will save lives, Parliament has a duty to support it, and the hon. Gentleman derided that approach.
Mr. Walker: Since the Minister seems to accept that this is a public order Bill, will she instruct a Home Office Minister to sit beside her and explain the public order aspects of the Bill to the Committee?
Ms Winterton: The hon. Gentleman is missing the point. He obviously believes that it is worth changing the legislation and including another test that must be gone through before someone can be detained, and accepting what that will mean. Okay, it is a small number of people, but do we really say, “Let’s not bother about that small number of people”? I find that extraordinary.
Mr. Boswell: I want briefly to share with the Committee two concerns that arise from these exchanges. The first relates to mental capacity; I do not want to muddy the waters, but it is arguable that asthat capacity is Act-specific and time-specific, the distinctions that the Minister makes between it and impairment eventually shave to a very narrow distinction, and I would like her to comment on that point.
My second concern is that she is talking about detention under the Mental Health Act, and again we need to be clear about the issue in the clause. If it is a matter of personal or public safety, it is arguable that detention should take place, but if treatment is not appropriate because there is no treatment, why does detention have to be under the Mental Health Act, any more than internment in times of warfare, for example, should be under that Act? We could legislate for it separately.
Ms Winterton: I want to make it clear to the hon. Gentleman that there are psychiatrists who say that they find the extra test confusing, because in order to be really clear it is necessary to use a capacity test. However, those who support the amendment claim that it is not a capacity test but a lower test. That is why we say that the thinking is muddled and confusing. There is honesty in saying, “Let us have a capacity test,” but it is claimed that this is not a capacity test because that would leave too many people out.
I suggest to the hon. Gentleman that he discuss with those who want to include the test how many of the people who are getting help at the moment they think do not need it, and why they do not go the whole hog and have a capacity test which is, as he has rightly pointed out, enshrined in law.
Hywel Williams (Caernarfon) (PC): The Minister has prayed in aid the British Psychological Society. Let me quote from its evidence to the scrutiny Committee about the very few patients who commit suicide or threaten to do so, and who appear unimpaired in their decision making. It says:
“We do not believe that these people should merely be ‘allowed to kill themselves’. We believe that these issues can best be addressed through the provision of appropriate consensual services. We think that all necessary services should be available, offered and assertively provided. Indeed, it is important to stress that the Mental Health Act does not prevent suicide. If it were implemented perfectly, it could not prevent all suicide.”
Ms Winterton: The hon. Gentleman needs to recognise that in considering the conditions of detention, we will talk about people who do not want treatment and will not consent to it. That is why they are to be put through the test. He is right in so far as we want people to access services at an early stage—before they become desperately ill—but the difficulty is that we are talking about those who do not want treatment. We have to take action to help them.
The British Psychological Society says that some people will be unable to get help. That takes us back to why we make a distinction between physical health and mental health. There is no denying that it is impossible to refuse treatment in respect of physical health. However, most people in our society would accept that the specific circumstances that we are considering now are different.
Mr. Walker: What would we do if we did not have the British Psychological Society to come up with statements for us to quote? Here is another one.
“The real problem arises from the Government’s wish to use mental health legislation to detain people on the basis of a prediction that they may commit an offence in the future but where they have not previously been convicted of such an offence.”
That is the real problem, Minister.
Ms Winterton: The hon. Gentleman is wrong.This measure does not apply to mentally disordered offenders. However, it is important to remember that it can be difficult to define the extent of the risk involved when somebody is as ill as the people we are discussing. Opposition Members need to be clear about what is being suggested. When considering mental health, we have also to be clear that in the most difficult circumstances we might have to decide whetherthere is—as the hon. Member for Caernarfon was saying—an obligation on society to intervene in order to help people who cannot, or in some cases will not, recognise that they need treatment for their own protection or that of other people.
As I have said, advocates of the impaired decision making test recognise that themselves. If they truly thought that mental and physical disorder should be treated indistinguishably, they would argue for a test based on legal capacity to consent, but this deliberately does not go that far.
Hywel Williams: The Minister talks about the incapacity test as if it were a one-off, all encompassing test. However, someone could have the capacity to decide about the effects of a treatment or a medication and, perfectly reasonably, be against it. Depression,for example, is associated with feelings of lack of self-worth and unreasonable beliefs about self-worth. In those circumstances a clinician could take a decision about detention on the basis of that mental illness, rather than the person’s obvious capacity in certain circumstances to decide about a particular issue within the regime.
Chris Bryant (Rhondda) (Lab): That is the Government’s position.
Ms Winterton: Exactly, the problem is that someone might not have impaired judgment. The hon. Gentleman is arguing my case. There may be people who are extremely depressed but who retain judgment about their treatment. They know what the options are, what their problems are and that all these terrible things are happening to them. They have the judgment to know that the treatment could help, but they do not want to have it. I do not know whether the hon. Gentleman has decided to support clause 4—
Hywel Williams indicated dissent.
Ms Winterton: In that case I will not pursue it any further. Under that clause, that person would not be able to get treatment.
Tim Loughton: We are having an interesting debate about the clause, but can the Minister answer this question? If a person is in crisis and wishes to commit suicide, at that point their decision-making is clearly impaired and they would be subject to coercion under the provisions. There is a serious risk of suicide in such cases. In contrast, if a cancer patient decides that they do not wish to continue chemotherapy, even though there is a serious risk that the decision will hasten their death, they are not subject to any coercion. What is the difference?
Ms Winterton: That is exactly the argument that Opposition Members advanced on Second Reading. If they want to continue to do so, that it is fine. We believe that a distinction can be drawn between someone who refuses treatment for cancer and someone who has a mental disorder and wants to commit suicide or self- harm or who may be a risk to others. Although such a person might have not done anything, there may be a difficulty, and we would want to prevent such an outcome. Physical health is an issue; yes, as to physical health, people can refuse treatment.
What is before us today is a decision as to whether people who do not get the treatment they need have the “right” to commit suicide. The members of the Mental Health Alliance to whom I have spoken say that that right has to be respected, and that is what Opposition Members are saying. There will be people, as the British Psychological Society says, who will go away and do that. If Opposition Members are happy about that, it is for their conscience.
10 am
Angela Browning: An analogy was drawn with a patient with terminal cancer, but there should be a difference in perspective here. Clearly someone who is terminally ill with cancer and has decided to stop chemotherapy or other forms of treatment has had to accept that a professional has said that the end is down the track. Very often their choice is not about whether to live or die, because unfortunately the outcome is already established, but about issues such as their quality of life for the next few weeks or months. The choice of such a person will be between undergoing treatment that makes them feel ill or accessing a final few weeks when they are compos mentis and able to do a few things. I am not 100 per cent. certain that there is a like-for-like comparison with regard to somebody who is contemplating suicide.
Ms Winterton: Quite. I thank the hon. Lady for making that point again. That is very good. I have always been surprised that she would go for such an argument, because I do not believe that that is where she would normally be coming from.
Mr. Boswell: Before the Minister relaxes unduly,I may say that once or twice she has slipped into suggesting that treatment would not be available for people whose judgment was impaired and who refused treatment; it would, of course, continue to be available, but it would not be compulsory. Will she say whether, as a general principle, if compulsory detention is required against the wishes of a patient with no impairment, or insufficient impairment, any action taken to detain would be in the best interests of the patient?
Ms Winterton: Absolutely. I would be surprised if the hon. Gentleman supported the kind of approach in question. [ Interruption. ] He is not listening. Of course, we want treatment to be available to the individual. However, the point is that they are saying that they do not want treatment, and that is where the decision has to be made. If the hon. Gentleman is thinking of supporting the clause, the idea could be that there is a kind of reassurance in justifying it by saying, “It is your right to commit suicide, but our conscience is okay because other treatment is there.” However, the issue is that such people do not want the treatment, which is why detention is being discussed.
I give the hon. Gentleman another reassurance: our suggestion that appropriate medical treatment must be available for detention is not about detaining people with no treatment, but detaining them with treatment, as opposed to not detaining them and their getting no treatment because they have refused it, and our saying, “It’s okay, it’s your decision. We respect your verdict.”
Mr. David Kidney (Stafford) (Lab): It must be most troubling for a psychiatrist to see a patient who appears to have the capacity to refuse treatment, but certainly has a mental illness. The psychiatrist may find it difficult to determine whether the mental illness is causing the refusal to take the treatment. Each time that we have legislated in modern times for such a situation, in 1959 and 1983, we have done so in favour of the psychiatrist being able to detain the person for compulsory treatment because of their mental illness. That is what the Minister is trying to uphold in this legislation. Does she agree that there has been no obvious change since 1959 or 1983 to overthrow that long-standing principle?
Ms Winterton: That is absolutely right. Opposition Members have to recognise that they would be introducing a new test that, by its nature, would have to exclude some people from being able to be detained for medical treatment.
Angela Browning: We have started to talk about appropriate treatments and options for the patient, which are important. However, it is unfortunate that clause 4 comes before clause 5. If they were the other way around, the debate might be a bit better informed. We are putting the cart before the horse. What are the options? I would rather have explored the options with the Minister and found out what her understanding of treatability was before we discussed this clause.
Mr. Boswell rose—
Ms Winterton: I will now give way to the hon. Gentleman.
Mr. Boswell: I should like to return to our previous exchanges. If I heard the Minister right, she conceded the principle that the acts of the psychiatrist in recommending detention were in the best interests of the patient. If that is so—this is a seamless issue that is not divided in the clause—it also applies in cases where the psychiatrist may be concerned about the danger to others rather than to the patient. She is telling the Committee that that decision also has to be taken in the best interests of the patient, even if it overrides their will in the matter.
Ms Winterton: Exactly. That is why we have to consider, in terms of mental disorder, that there may be circumstances in which the psychiatrist thinks that there is a wider risk to society—not that the person has done something already, because this does not apply to mentally disordered offenders. If somebody has not committed an offence and the psychiatrist thinks that they might be a risk to themselves, it is difficult to make that judgment. That is why, when we think about wider society issues, there is a distinction between physical and mental disorder, except in some rare cases such as TB or infectious conditions, and society must take steps to say that somebody can be detained because of the threat that they pose to wider society. We must accept that in some exceptional circumstances, there are actions that we, as a society, decide to take for the greater good.
Angela Browning: The point that the Minister made about the wider interests of society, and psychiatrists identifying among the group in question people who might go on to harm somebody else, is at the heart of the Bill. The pre-legislative scrutiny Committee spent a lot of time dealing with the point and took a lot of evidence on it. She will know that the ability of a psychiatrist to predict how a person will behaveand detain them, if they have no previous record, is virtually impossible. The statistics given by several eminent bodies range from 2,000 to 5,000 as the number of people who would have to be detained in order to identify just one potential person.
This is one of the most dangerous parts of the Bill. The Minister has now prayed in aid of the proposals the idea that somebody could predict a Michael Stone or somebody like him in future, but we know from the evidence that we took that that is impossible.
Ms Winterton: What is the hon. Lady suggesting? The argument is running down to what may lie at the heart of the approach of Opposition Members—a view that we should not detain anybody and that if nobody can predict behaviour, and people do not want treatment, we should not have any legislation at all. That is the logic of what she is saying. The point about the Mental Health Act is that we take that decision. It is true that we ask psychiatrists to say whether somebody is a danger to themselves or to other people. We want them to make that assessment; we do that already. If she is saying that we should not do that any more because we might lock up the wrong people—
Angela Browning: No, I am not saying that.
Ms Winterton: Well, I do not understand what the hon. Lady is saying. If she is saying that is difficult to predict risk, I agree that that is true. Along with the Royal College of Psychiatrists and others, we continue to work on how to improve that risk assessment. That assessment is important. I do not understand why the hon. Lady is saying that, because we cannot predict risk well, perhaps all decisions are wrong. That is not the case.
Ann Coffey: Does this issue not go back to the clinical judgment of the psychiatrist concerned? The risk is assessed in the context of the judgment ofthe degree of mental disorder.
Ms Winterton: We need to keep making the point that the Bill is about the use of clinical discretion. At the moment, the basis of that discretion, along with all the other things, has to be whether the person is a risk to themselves or to other people. Opposition Members are saying, “Let us put another test in there and ensure that some of those receiving treatment now do not get it in the future.” It could not be plainer than that. As I said, there is an issue about whether we accept the libertarian argument and say that if they want to commit suicide, it is up to them. That might apply only to a few people, as the BPS says, but does that make it okay? Frankly, I do not think so.
Angela Browning: The Minister referred to people who have no track record with mental health services and who have not been subject to treatment, or whoare being considered for detention for the first time. However, we have the criminal justice system as well. My hon. Friend the Member for Broxbourne was being a little tongue in cheek, I think, when he talked about having a Home Office Minister in the room, but we seem unable in this legislation to disaggregate those with capacity who are a danger to others and who, if they have committed a crime, should come under the criminal justice system.
Ms Winterton: First of all, suicide is not a crime. The hon. Lady needs to recognise that we are always trying in legislation to prevent offending. Let us imagine that an individual feels that somebody’s judgment is not impaired, but is at risk of offending. Her party’s approach would be to take action only when that person has offended. Frankly, that would create a real difficulty, because she is saying, “Do it when they have offended, not when they haven’t.”
James Duddridge (Rochford and Southend, East) (Con): The Minister has referred a number of times to the intellectual argument about liberty. May I probe her own intellectual coherence? Her case for public protection is greater, which perhaps is why some Opposition Members believe that this is more of a public order Bill. However, her case for the protection of those with mental health problems is less compelling. If there were no murders and no harm was done to others—in other words, if there were no offences—and this was just about suicide and self-harm, would she still wish to amend the Bill in the proposed way?
Ms Winterton: Anything that stands in the wayof treating people is wrong. Any approach that Opposition Members support which says “There are people whom we will no longer treat, as we will put this extra test in.” It is wrong that they are proposing this test, which would mean that those who are suicidal or self-harming and have been through all the options for treatment, but whose judgment is not impaired, will not be allowed treatment. Opposition Members need to come clean and say, “We accept that that is fine”. If that is what they are saying, they must agree with the BPS: a small number of people would be allowed to commit suicide.
10.15 am
Ann Coffey: But are the Opposition not saying something else, to carry their arguments to the logical conclusion? Offenders should never be offered mental health services; they should be dealt with in the criminal justice system.
Ms Winterton: The real issue in what the Opposition are saying concerns somebody who is a risk to others and does not have impaired judgment. The clause covers people who are a risk to themselves and a riskto others, but not mentally disordered offenders. Presumably the people promoting the clause recognise that a mentally disordered offender who had been placed on a hospital order, but had gone to a tribunal and challenged it, saying, “I don’t have impaired judgment”, could not be detained. That is why mentally disordered offenders have been excluded. However, the people who were judged a risk to others, if they did not have impaired judgment, could not be detained.
Tim Loughton: What we are saying is that if a person is at serious risk of suicide, their decision-making is impaired, therefore the treatment would be invoked. Also, there would be more patients who could be detained earlier because psychiatrists would focus on their judgment, which is much more preventive. That is what we are saying. Given that the Minister is now focusing exclusively on self-harm rather than public safety, perhaps she can help us by explaining why she thinks suicide rates have been falling over recent years—for which she is always taking credit.
Ms Winterton: I do not quite understand. Is the hon. Gentleman saying that because of the judgment test there is now no risk to self or others in his proposals? He is saying that we could detain people earlier because they had impaired judgment, and we would not have to detain them on grounds of risk to themselves or others. So now we only have the impaired judgment case. Anybody who has impaired judgment is going to be detained even if they are a risk to themselves or a risk to others. That is what the hon. Gentleman has just said, because we would not have to take other factors into account. We could prevent the risk to self or others, because we would only have the impaired judgment test, but surely the hon. Gentleman is not suggesting that that is how we remove the risk to self or others? If he is talking about that, then the number of detentions would be massive. I find that a very curious argument.
Mr. Walker: To help frame the rest of the debate, will the Minister give her best estimate of how many violent offences the Bill will prevent if it goes forward as originally presented by the Government? How many homicides will it prevent? Of course those will have to be estimates, but I imagine that the evidence is there. How many suicides will the legislation prevent? The evidence must be around somewhere.
Ms Winterton: As I have said to the hon. Gentleman previously, we have a particular problem about suicide. Under the changes that the Opposition are attempting to make, it is not possible to allow somebody to have supervised community treatment. Our figures are quite precise about timing of medication and, as I said, the potential is for 56 people during that limited period to be under supervised community treatment, to continue taking medication and therefore not to commit suicide. I would ask the hon. Gentleman how many people he thinks that the impaired judgment test would mean would not get treatment, given that the British Psychological Society says that it would be a very small number. I would be interested to know what he thinks is an acceptably small number for people who he says do not need treatment.
Tim Loughton: The Minister is making sweeping assumptions, as usual. Where is her evidence that supervised community treatment orders would have been effective in preventing the suicide of those 56 people? It is entirely theoretical. There is no empirical evidence to suggest that they could have been effective in saving those people’s lives. It is bogus to suggest otherwise.
Ms Winterton: Obviously, that is a different area altogether, but the evidence is the national confidential inquiry into suicide. Each suicide is looked into very closely, and one can pick out specifically the non-compliance of those 56 people during the second two weeks, when they stopped taking medication and therefore became seriously ill again. It is quite wrong to say that you can always prevent that.
Tim Loughton: But that is what you have said.
Ms Winterton: No, it is not. If the hon. Gentleman reads the record, he will see that I have always said “potentially”—these are people whom we could help.I have never said that that means that the lives of56 more people could have been saved. That would be perfectly ridiculous.
Tim Loughton: That is entirely the implication of what you said.
Ms Winterton: It is not. I have said clearly that there is the potential there. The hon. Gentleman may reject that, but I suspect that hon. Members on this side of the House will want to know exactly how many people the Opposition are prepared to see not getting treatment if they vote for this clause.
Dr. John Pugh (Southport) (LD): The hon. Member for East Worthing and Shoreham has made his statement defending the amendment—and I think it quite a legitimate statement—that someone who is suicidal necessarily has impaired judgment. I think that that is more or less what he said. I understand that Earl Howe in the other place has said the converse: that someone is not necessarily mentally impaired if they are suicidal. Have we not hit on a fundamental difficulty here, namely, that people who support this amendment derive different consequences from it? Before going any further, ought we not to clarify its true intended consequences?
Ms Winterton: The hon. Gentleman has raised a valid point—one that I was trying to make earlier—which is that we do not know what the impaired decision-making test is. It is untested. There is no case law on it, even in Scotland. Those who say that the test should trump the risk to themselves or the risk to others are quite right. In the other place, the official Opposition spokesman, Earl Howe, argued the complete opposite to what the hon. Gentleman just said. He said that the law and the state had no business interfering in the lives of patients who retain decision-making capacity, despite being seriously mentally ill, if the risk that they pose is to themselves only. He went on to say that
“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.]
However, that is fundamentally wrong. We feel very strongly that—
Ms Winterton: My hon. Friend makes an important point about where we see a difference. He is quite right to say that some people who commit suicide but who retain their judgment throughout the period of their illness—
It being twenty-five minutes past Ten o’clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at half-past One o’clock.

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