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Session 2006 - 07 Publications on the internet General Committee Debates Mental Health Bill [Lords] |
Mental Health Bill [Lords] |
The Committee consisted of the following Members:John
Benger, Committee
Clerk
†
attended the Committee
Public Bill CommitteeThursday 26 April 2007(Morning)[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 4Impaired
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.
Angela
Browning:
That is exactly the point—the question of
self-harm and the prevention of suicide—that I put to the Royal
College of Psychiatrists in the evidence-taking session on Monday. I
got a response from the RCP that was quite different to the position
that the right hon. Lady is outlining today. Clearly, in a
clinician’s professional judgment, if somebody was going to
self-harm that would automatically raise the question of impaired
judgment. The RCP seemed to have no difficulty at all in professionally
saying that psychiatrists can distinguish the difference. After all, as
lay people we are, in this Bill, relying on psychiatrists to make that
decision as to whether judgment is impaired. Making that decision is
what they do. The RCP did not accept the definition of impaired
judgment that the right hon. Lady has just given to the
Committee.
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.
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—
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:
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—
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.
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.
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—
Mr.
Kidney:
I have tabled an amendment to a later
clause on the assessment of risk. Being at risk of committing suicide
is not a criminal offence. However,
I recall an event last year, which is not uncommon, involving a man who
committed suicide by parking his car on a railway line. He was struck
by a train travelling at 70 mph with 200 people on board. Therefore,
there are shades of risk between a suicide on one hand and a criminal
offence on the
other.
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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