House of Commons
|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 Committee
Thursday 26 April 2007
[Miss Anne Begg in the Chair]
Impaired decision making: admission for assessment and treatment
Question proposed [this day], That the clause stand part of the Bill.
Question again proposed.
The Minister of State, Department of Health(Ms Rosie Winterton): We are discussing a fundamental issue. In the other place the spokesman for the official Opposition argued that the law and the state hadno business interfering in the lives of patients who retained decision-making capacity, despite being seriously ill, if the risk that they posed was to themselves; if they posed a risk to others, that was or should be the province of the criminal law. As I said this morning, that seems fundamentally wrong. It means the state abdicating its responsibilities for protecting people suffering from mental disorder who may be driven to self-harm or even suicide.
As for people whose disorder may be putting others at risk, it is true that the criminal law can intervene,but only after an offence has been committed. In other words, the Opposition have said, in effect, that the rights of those patients not to accept treatment are invariably to take preference over the rights of other people who may become victims. They have said that the competing rights are not to be balanced, but that the former is automatically to be given preference.
I ask the Opposition to think carefully about attempting to retain the clause. It really will have a detrimental effect, admittedly, as the British Psychological Society said, on a small number of people. However, it is not right that we, as parliamentarians, are prepared to turn our backs on those people and not get treatment to them when they desperately need it. That is why I am asking the Committee to reject clause 4.
Dr. John Pugh (Southport) (LD): I am delighted to see you in the Chair, Miss Begg. Although I cannot imagine what you have done to hold such a positionfor the whole of Thursday when you were not even assigned to chair the Committee, I am pleased tosee you.
We debated exceptions the other day, most ofwhich could be resolved easily by including a statement of principles in the Bill. The Scottish Bill excludesany prejudice on the grounds of age, sex, sexual orientation, religious persuasion, racial origin, cultural
The clause that we are considering is verbatim the clause in the Scottish Bill and the Secretary of State seeks to remove it. In its submission, the Royal College of Psychiatrists said about the Scottish Bill that
We consider that the Scottish Mental Health Act provides an excellent model for a new law for England and Wales. The positive experience of our colleagues in Scotland over the last year and a half has reinforced this view.
I am mindful of the danger that all that we will do in the Committee is repeat the mantras and arguments of the other place. Despite the copious briefings that we receive, we shall just be marking time until the real trial of strength occurs between the Lords and the Government, which to some extent will mask the real and long battle that has been going on between the Government and the Mental Health Alliance, where briefings can simply be used as ammunition and Members of Parliament can be used as proxies for organisations outside this place and reduced almost to the state of ventriloquist dummies whereby discussions can be choreographed and so on.
I genuinely believe that that is a waste of our time. It is a misuse of what is obviously a talented, informed and able Committee. A Public Bill Committee hasvery real strength. We cannot rival their lordships eloquence or eminence[Hon. Members: Come on.] Well, some of us cannot. There is far more interchange and challenge and more probing questions are asked in a Public Bill Committee, as we found out this morning. I was struck by the lack of interventions in the Lords debate and the rather respectful audience that they gave one another. That is fine if one wants to state a case, but less good for exploring, analysing and defining points of difference.
One of the best speeches in the House of Lords was from Baroness Murphy, whose contributions throughout the debate were splendid. She is a psychiatrist, and she said of the amendmentwhich is now clause 4which might puzzle some members of the Committee:
I do not believe that the amendment will change who is detained and who is compulsorily treated.Official Report, House of Lords, 10 January 2007; Vol. 688, c. 234.]
That may puzzle some members of the Committee. It prompts one to ask what all the fuss is about.
Dr. Pugh: Clearly, the Government and the Mental Health Alliance think that there is an important issue, as there are two conditions in the 1983 Act for the detention of a mentally ill person. One, obviously, is having a severe mental disorder; the other is to be seen or judged to constitute a risk to oneself or others. Essentially, the amendment would add a third conditionthat the individual has impaired judgment about his medical treatment.
The Government want to insist that it is perfectly safe to leave just the two conditions in place. They argue that to add the other condition would make matters worse because mentally ill patients whoare judged at risk will be left free to commit suicide and, less commonly, to harm others.
The key question is who we are talking about here. Could there be people who are judged to be a serious danger to themselves and others who are diagnosedas mentally ill and who are possessed of unimpaired judgment? I wanted to define where people stood on that issue, so I wrote to a number of the bodies that contacted me and asked if there were such people and what they were likewe explored some differences in the debate this morning.
Mind wrote back to me saying that it was hard to imagine that there were such people; the British Medical Association said that it was entirely possible that there are such people. The Royal College said not in most cases, although there will be some dangerous people who coincidentally will have mental problems. Lewis Appleby at the Department of Health said yes, there definitely were such people. The Law Society, in submission MH20 said that it was axiomatic that if one is dangerous and disordered one is mentally impaired.
The British Association of Social Workers in submission MH25 said:
If a persons judgement is not impaired, they cannot be suffering from a serious mental disorder.
Baroness Murphy said that
many if not all
of the people who pass on the first two criteria
will have impaired decision making.
Baroness Barker, Earl Howe and the Royal College of Psychologists said, explicitly, that there would be some without impaired decision making, who should be allowed to act freely. They took what the Secretary of State described as a libertarian position.
The interesting thing about the variation of views is that it genuinely does not depend on whether someone is for or against this Bill, which leads me to surmise that there is an element of confusion about what weare discussing. I posed the question whether impaired judgment is not by itself clear, and I considered whether I could make it any clearer. It is not defined in the Scottish Act, although it is in the guidance, but when Baroness Barker introduced the amendment she contrasted the lack of decision-making ability and capacity with impaired decision making. On the other hand, Professor Richardson, in her submission MH22, said almost precisely the opposite, talking of:
our desire to see the introduction of an incapacity criterion.
All this is less than clear. The Lords notes distinguish impaired decision making from disorder of cognition, but in submission MH9, Professor George Szmukler, who is quoted on several occasions by a number of people, said:
emotional elements are ... in an important sense cognitive.
Even if it is not clear what effect the Lords amendment would have, it is fairly clear what it was intended to doto reduce the pool of potential detainees, although by all accounts it would do so by only a small number, and assert the right of patients, particularly those who are not impaired in their judgment, to have a say in their treatment. I believe that we all support those laudable and important objectives.
I share the concerns voiced through the Lords amendment and in many of the objections to the Governments position. We all know the sad historyof full-frontal lobotomies, for example, that were performed on people who did not know that they were being done. We know more recently of overdoses of Largactil and so on, with all kinds of adverse effects on peoples physical health that had not been anticipated and were not properly explained to them.
The clause is supplementary to, not a replacement for, the two conditions laid down in the Mental Health Act 1983. Many of the fears that have been expressed about not including the clause could relate equally to how that Act has functioned. To some extent, we are now seeing how it has functioned, and we have had24 years experience of it. The addition of a third condition to that Act, that of impaired judgment, would by all accounts exempt a limited number of people who also satisfy the other conditions. So it cannot by its presence or absence significantly affect the number of people likely to be sectioned by psychiatrists, unless psychiatrists start behaving markedly differently from how they have behaved for the past 24 years.
However, the clause makes an important pointabout patient autonomy and choice, and it underlines and makes explicit the connection between cure and consent. Provided that the Governments fears are not realised, and people judged a threat to the health and safety of themselves or others under the 1983 Act are not allowed to commit suicide or an aggressive act on somebody else by virtue of their mental disorder, there seems no major harm in leaving the clause in the Bill.
We must address the Governments fears, as they have been put seriously. I tried to follow the argument as fairly as possible, and there are fundamentally three categories of response to what the Minister said. The first is that her fear is groundless; there is no category of people about whom we need to worry. The second is that responding to that fear by removing the clause would generate more unnecessary incarceration than one would expect and certainly more than it is worth. If it prevented one ill, it could create a worse ill elsewhere. The third response is the more radical one given by Baroness Barker and Earl Howethat we must put up with the current state of affairs on the grounds of civil liberties. When individuals defend the clause, they sometimes select one of those responses and sometimes give all of them.
I have said enough about the first two responses, so I shall turn to civil liberties. One can fairly claim the right of an individual to commit suicide by virtue of their mental illness. I do not, but one can make that point and it is intellectually defensible. Nearly everyone would hesitate to claim the right of an individual,for instance a stalker, to harm and harass another individual by virtue of their mental illness. It is often pointed out when dealing with civil liberties that sane people, or those with no mental disorder, commit suicide and do wrong things, and that, hey, there is criminal law out there. That is a slightly glib response, because it depends on believing that people who are mentally ill and those who are not possess the same personal and moral autonomy. I cannot in all cases believe that.
If an individual with a diagnosed personality disorder were treated simply as a common criminal, we might have some reservations. Do we not believe that
The Joint Committee looked at the thorny issue of untreatable personality disorders. I do not have the quote to hand, but I do not think that it is unfair if I summarise a crucial passage of the Committees findings. It said, Yes, this is a residual problem, but that must be left for other legislation. However, it slightly sold the pass by failing at that point to tell us what such legislation would look like and whether or not it would involve mental health legislation.
Ms Winterton: Would the hon. Gentleman address the point that outwith the criminal justice route, one of the things that we want to do is to prevent people from offending to reduce offending rates. Therefore, unless someones judgment is impaired, we are allowing themperhaps when they have not offended beforeto go ahead and commit an offence because we are saying that we cannot intervene. That is the other side of it. It is not just about someone committing an offence but about getting help to them before they have done that.
Dr. Pugh: There are obvious concerns about pre-emptively acting to prevent people from committing an offence that they have not as yet started to commit. Lawyers can comment on that issue far better than I can. However, I accept that the Minister has made a perfectly decent point.
This is not an easy issue. Anyone who pretends otherwise is being simple-minded. According to my accountI do not think that it is an unfair accountthe Government and the Mental Health Alliance are not as far apart as it might seem. However, simply removing the clause leaves the issues unresolved, the differences unexplored and sends out all the wrong signals.
Ann Coffey (Stockport) (Lab): I am a member of the Modernisation Committee, which produced the report proposing to set up Public Bill Committees and emphasising the importance of pre-legislative scrutiny. We also do not do enough post-legislative scrutiny in the House, particularly on Bills such as this. Questions such as those rightly raised by the hon. Member for Southport about the 1983 Act could be answered if we had more information or had examined since 1983 how the Act operated and was implemented. We do not have that degree of knowledge, so we have to predict the consequences of legislation.
My right hon. Friend the Minister has a point when she says that by leaving in clause 4 and enforcing the Lords amendment in a rigid way, a very difficult group of people, who are difficult to help, might be denied help. That is a very strong consideration. We cannot divide the problem into those who self-harm and those who harm others because, as my hon. Friend the Member for Stafford pointed out very coherently this morning, they are often the same people. The people who jump off the motorway bridge in my constituency into the path of a car not only lose their own livesbut endanger the lives of people travelling along the motorway. The same thing applies to people who jump
Although I understand the reasons behind the separate test, I am not sure that it is totally necessary. Two weeks ago, I went out and spent time with approved social workers from one of the London hospitals, and witnessed a mental health assessment. It was clear to me that the issues of mental disorder and capacity were interlinked in how the two psychiatrists and the approved social worker conducted that interview. What they brought to the interview was several years of training and experience. As has been said, mental disorder, or the continuum on which somebody is disordered, is not easy to identify; one cannot take such peoples temperatures or see whether they have a rash. Ultimately, the matter depends on clinical experience, which is why I do not understand where the Royal College of Psychiatrists is coming from on this matter. It is very jealous of its professional expertise. Some clauses that we will talk about later argue for the retention of a central role for psychiatrists in assessment because of their expertise, which they cannot be substituted by anybody else. I am not sure why the royal college wants to have that flexibility to make clinical judgments taken away from it, in effect, by putting a test about a test about impaired decision makingnobody knows what that meansin the Bill.
There is also another issue that we should consider. The professionals who will work in mental health will also work in other areas that will be governed by the Mental Capacity Act 2005, which comes into forcein January 2008. Psychologists, psychiatrists, mental health workers and community nurses will all implement that Act, which, as everybody knows, sets out the definition of a person who lacks capacity. It focuses on a particular time when a decision has to be made, and on the particular matter to which the decision relates. The Act states:
It follows that a person can lack the capacity for the purposes of the Act even if the loss of capacity is partial or temporary or if his capacity fluctuates.
I am reading out the provision because it goes into some detail about what the criteria are for lack of capacity. The so-called diagnostic test picks up a range of problems such as
psychiatric illness, learning disability, dementia, brain damage, or even a toxic confusional
state. Those are the same areas in which psychiatrists and approved social workers will make judgments in mental health assessments. That is underlined by a very strong set of statutory principles that apply to the Mental Health Act.
Administering or implementing the 2005 Act will lead to those professionals having a shared view of what capacity is, and sharing their clinical experience through case studies and case law. That is a very important process, and it is a welcome Act. However, the problem is how that process would sit with clause 4, which takes in impaired decision making. Part 4 of the Mental Health Act 1983, which is about consent to treatment, uses the term capacity. In other words, somebody has to make a decision about consent to treatment. The decision will be either that the patient is
Further confusion may arise in another area, in which I envisageI am not a lawyerthat many in the courts and mental health tribunals will be interested. If somebody with learning disabilities also has a mental disorder and is being assessed for treatment under the Mental Health Act, they will already have been assessed under the Mental Capacity Act 2005 for capacity in decisions relating to other areas of life, such as finance and so on. They will then attend an assessment for treatment under the Mental Health Act, in which the criterion is whether they have impaired decision making, which is different from having the capacity to make decisions. Even though people say that the terms are the same, they are different words, and therefore mean something different. They canand will be interpreted differently by the courts. If impaired decision making is a higher obstacle, therefore, someone with learning disabilities who has been deemed incapable of making decisions underthe Mental Capacity Act could be refused treatment under the Mental Health Act, as they would still be considered as satisfying the clause 4 condition, as that is different. I do not think that we can have two different tests in this area.
The way forward is to see how the Mental Capacity Act is implemented when it comes into force in 2008, as I think that it has some implications for the Bill. The hon. Member for Southport seemed to say that he did not think that it made a great deal of difference. In that case, to avoid confusion, I suggest that the best way forward is to remove clause 4 from the Bill until we can see the results of the implementation of the Mental Capacity Act, and not add further confusion tothis area.
I will just make a final plea. Legislation is not perfect, and I am a strong believer that we should leave as much flexibility in legislation as possible concerning the decision making of people who will have to operate it on the ground. We should not be in the business of having tick boxes or setting obstacles for people to overcome. We should set standards for them, have confidence in those standards and let them get on with the job that they have chosen to do.
Tim Loughton (East Worthing and Shoreham) (Con): I welcome you to the Chair, Miss Begg, for the second time today, which certainly needs endurance.
I should like to set out the parameters of wherewe stand on this issue, and try to address some ofthe Ministers points. There is a clear differenceof principle, and the clause was added in the House of Lords after a great deal of deliberation; it was not just thought up on a wet Friday afternoon. Impaired decision making is not some clever little phrase that someone has come up with; it has been thought about over many years by the Mental Health Alliance of professional service users and providers. Impaired
Mr. Kidney: Will the hon. Gentleman confirm that, in accordance with the explanatory notes to the Bill, there is no legal precedent for that phrase?
Tim Loughton: As the hon. Member for Stockport has just said, she wants to leave the decision to the professionals at the sharp end who are providingthe services to people, and we should rely on their judgment and their interpretation of these phrases. All the professionals who have made representations, and all those represented in the Mental Health AllianceI need not list them all againare in accord with having a clause about impaired decision making.
Ms Winterton: Has the hon. Gentleman seen the latest letter sent to members of the Committee bythe Royal College of Nursing, which was mentioned yesterday as part of the enormous number of professional bodies in this area? He says that all professionals are agreed, but I will just read to him from that letter:
Nurses are bound by a code of conduct and professional ethics to do all they can to prevent harm. We could not support any legislation that could impede our members in their primary aim of preventing foreseeable harm. We do appreciate the Governments concern that the amendment relating to the absence of impaired judgement could enable service users to take decisions that may have tragic and regrettable consequences for their families and themselves. It is imperative that our members work within a clear and unambiguous legislative framework which will enable them to provide appropriate care and treatment in situations of obvious moral, legal and ethical complexity.
I understand that the letter has been sent to members of the Committee today.
Tim Loughton: I am grateful; I have not seen that brief. Of course, nurses will not make decisions on sectioning.
Tim Loughton: No, those nurses will not be making decisions on sectioning or the renewal of sectioning under the amendments that we have supported in the Lords.
Tim Loughton: Yes, absolutely. That is entirely consistent with what we are saying. If the Ministercan quote similar comments from the Royal Collegeof Psychiatrists or the British Medical Association, perhaps that would show that I am wrong, but why have all the submissions that we have seen and all the
Ms Winterton: I should like to draw to the hon. Gentlemans attention a note that was attached to a letter dated November 2006 from members of the Royal College of Psychiatry, Dr. Tony Zigmond and Dr. Ian Hall. It stated that the college wanted
to see patients having the freedom to decide whether or not to accept medical help if they retain decision-making capacity... We know some colleagues have some reservations about this.
The hon. Gentleman will find that there are many different views on the subject, but it boils down to whether there is an agreement that, if somebody does not have impaired judgment, they should be allowed to go out and commit suicide or, in some cases, harm others. That is the long and the short of it. There are certainly different views within the profession; it is our job to decide which side of that argument to come down on.
Tim Loughton: Perhaps the Minister will name those members of the Royal College of Psychiatrists or the BMA who take that view.
Ms Winterton: I have a list of about 10 psychiatrists who have signed up to a letterI do not have it in front of me, so I shall come back to it in my winding-up speech if the hon. Gentleman allows me tosaying that the issue of impaired judgment is extremely important, because some people will not get treatment. It is important to recognise that there are those who disagree.
Tim Loughton: Will the Minister tell us how many members of the Royal College of Psychiatry or practising psychiatrists there are in this country? She refers to a list of 10 signatories to a letterpresumably, the same people whose names she trotted out when challenged on various occasions to find practising psychiatrists who would support some of the measures in the Bill. If she claims that there is widespread support for her view, she needs to produce the evidence. [ Interruption.] The situation is that out of 80 members[Interruption.] I do not know whether Minister wants to listen; I am trying to respond to the point that she made to me. The Committee is trying to scrutinise the evidence. [ Interruption. ] The Committee should be scrutinising the evidence in support of our scrutiny of the legislation. If Government Members want to scrutinise the legislation in the absence of any evidencein a factual voidwe are coming at the issue from different viewpoints.
Is the Minister seriously trying to claim that there is a large body of people who share her position? Of course there are individuals who will take a different view, but 80 organisations, representing thousands of professionals, service users and service providers, have signed up to an amendment in favour of the inclusion of impaired decision making, which went into the Bill in the Lords. The balance of argument from
A note from the Royal College of Nursing on behalf of people who will not be making those decisions has gone round today, although nobody has seen it, and there is a list of 10 people with a different view, whose names the Minister cannot quite put her hands on, but who I am sure do existI shall give her credit for that. That is a small number. That is precisely the point that I am making.
Dr. Gibson: Will the hon. Gentleman tell us about the decision of the Royal College of Psychiatrists? At which meeting did this understanding come to him? How many people voted? Was there an annual meeting, a ballot or what? If we are going to penetrate how decisions are made, let us do it openly.
Tim Loughton: The hon. Gentleman will have had the opportunity to quiz the representatives from the Royal College of Psychiatrists and will have seen its official submission. Is he trying to tell us that what has officially been advanced as its position is not its official position, or that the majority of its members do not agree with that? That seems to be the tenor of what he is suggesting.
Dr. Gibson: I am not making the assertions. You are asserting that you understand that an organisation did this. I am asking you for the evidence, because you are asserting it.
The hon. Gentleman has the evidence in his own files. He will have received the official submission of the Royal College of Psychiatrists, as part of the written submission to the Committee, along with everyone else. However it came to that decisionwhether the psychiatrists all got together in a big room or whether it was made by a committee on their behalfis the hon. Gentleman seriously suggesting that the Institute of Psychiatry, or any other organisation that is part of the Mental Health Alliance, has a little clique or minority in control that has advanced a view that is not shared by the majority of the people whom they represent? [ Interruption.] I will read these notes shortly. If so, I suggest that the hon. Gentleman takes a dim view of the way in which the Royal College of Psychiatrists and other medical professionals behave, and I am surprised about that.
Mr. Charles Walker (Broxbourne) (Con): I have the brief from the Royal College of Psychiatrists in front of me: it says that the royal college is a member of the Mental Health Alliance and agrees with its briefing. It agrees with everything. The Minister seems to suggest that it is not in agreement. [Interruption.] She is
Tim Loughton: Indeed. I have had the privilege of a little in-flight refuelling, which the Minister usually has the monopoly on. The position of the Royal Collegeof Psychiatrists was decided on democratically, by democratically voted-for representatives who are entirely answerable to their members. That strikes me as pretty good. I am confident from my conversations with practitioners and representatives of the Royal College of Psychiatrists that the briefing that both the hon. Gentleman and I have received represents its official position and that of the great majority of its members, even though there may be at least 10 out of many thousands who do not sign up to that. I am prepared to go with the majority. An awful lot of the Governments approach to the Bill appears to be predicated on a vociferous minority that happens to agree with the Government, but it is very much a minority.
Tim Loughton: I will give way to the Minister first, then to my colleagueand I have only read the opening paragraph of my notes.
Ms Winterton: Does the hon. Gentleman accept that what we are saying leads on from what the Royal College of Psychiatrists said? It has told me quite openly in a meeting that we have to accept that some people will not get treatment as a result of the impaired judgment test. The Royal College of Nursing very quickly said at our meeting that it did not agree that that is the right approach to take. That is why it has been very keen to ensure that members of the Committee understand that it believes that approach to be bad. It believes that people should be helped, if needed, which is why it has been so keen. Let us remember that community psychiatric nurses and others will be the ones doing such work. For example, they will be involved in the renewal of detention, so their views should be taken note of.
Tim Loughton: By the same token, there are many sufferers from mental illness who will be admitted by compulsion for treatment that will be counter-productive. We can come on to that as well. The Minister is predicating all her argument on treatment working. For many, it does not, and for many, it can be counter-productive. That is what I want to come on to, when I get to my speech.
Angela Browning (Tiverton and Honiton) (Con): I am grateful to my hon. Friend, and I hope he enjoyed the little billets-doux between us.
Angela Browning: The story of my life. The hon. Member for Stockport began her contribution by suggesting that the debate would be better informed if we were able to scrutinise post-legislative examplesin
Tim Loughton: My hon. Friend makes a very good point. Based on the Governments logic, there should have been an increase in the number of suicides in Scotland, for example, if what the Minister is trying to warn us of is true. I am not aware of any increase in the number of suicides in Scotland. My impression is that there has been a small fall, in line with the rest of the United Kingdom. I do not understand, if something appears to be okay in Scotland and working, why it is going to give rise to all sorts of horrors if we enact it in the Bill.
Mr. Tim Boswell (Daventry) (Con): Does my hon. Friend not agree that one of the reasons why patients or potential patients may be reluctant to submit to certain treatments, certainly if imposed on them compulsorily, is their prior experience? For example, they may have offered themselves as voluntary patients and found the likely medications prescribed not only extremely unattractive, but with very damaging or alarming side effects.
Tim Loughton: My hon. Friend is absolutely right, and I should like to elaborate in a minute if hon. Members would allow me to make some of my points. We seem to be having a bit of an argument about the veracity of certain of the evidence before us. I want to counter the Ministers points and justify why clause 4 should remain in the Bill.
I am sure that all hon. Members agree that weare approaching the issue from a point of non-discrimination, which should be the basis of all health treatment and certainly of mental health treatment. Enshrining the principle of non-discrimination andthe non-stigmatising approach in mental health lawis important and is all about protecting those with capacity who are capable of making their own decisions from being forced to undergo treatment or medication to which they object and that, in some cases, may have side effects and not be beneficial to their physical health. I will come on to that in a minute.
Whatever the Minister says and however many letters she pulls out, the Government are in a position of relative isolation. The Governments expert committee, under Professor Genevra Richardson, came out in favour of such an approach. She stated:
Patients should not be subjected to compulsory treatment against their capable wishes simply in the interests of their own health or for the avoidance of annoyance to others. To do so would be to discriminate unjustifiably against mental as opposed to physical ill health. If we are to apply the recognised principlesof health care equally across mental and physical disorder, it would help significantly to reduce both the discrimination reflected in the Mental Health Act 1983 and the stigma which
I agree with that and I think that the Minister will agree with the anti-stigmatisation sentiments behind it. The Governments own committee is in favour of the terminology, wording and approach added to the Bill in clause 4.
Chris Bryant: Clause 4, which is being debated almost as much as the Labour party used to discuss clause IV[ Interruption. ] We will not start on that one. Clause 4 is the only change that the Bill would make to section 2 of the 1983 Act. I can only presume that the hon. Gentleman and those who support the change believe that presently there are people being detained who should not be detained and who should be granted an exemption by the clause. [Hon. Members: How many?] Who are those people and how many of them are there?
Tim Loughton: A lot of people with autism spectrum disorders might be affected, as was mentioned. That is why we need new legislation to update and amend an Act that is now 24 years old. I do not see the point that the hon. Gentleman is making. I challenged the Minister this morning on how confident we can be about the prediction that the Bill will lead to a specific number of lives saved. We cannot predict that. To get into a ridiculous numbers game is wholly unrealistic and is in any case unhelpful.
Tim Loughton: I shall make a couple of further points and then give way, although I do not want to speak for as long as the Minister, who took a lot of interventions.
Let us remind ourselves of what the Joint Scrutiny Committee said. It stated:
We acknowledge the Governments concerns about the use of a criterion of impaired decision-making, but we believe that most of those concerns can be overcome. We believe that compulsory powers should only ever be used as a last resort when people are very seriously ill, and we do not agree that a person would become too seriously ill before an impaired decision-making criterion is met.
The Law Societys brief, stated:
We are clear that this amendment would not exclude a mentally disordered person who was a danger to themselves or other people from compulsory detention and treatment under the 1983 Actsince their decision making ability would by definition be impaired.
That was the point that I tried to make this morning.
Chris Bryant: Will the hon. Gentleman clarify that? Is he saying that he agrees with those who believe that, by definition, the desire to kill oneself is demonstrable evidence that one has impaired judgment?
Tim Loughton: That is entirely the point that I made this morning. Looking at my notes now, I can see that I said that if there is a serious risk of a person being about to commit suicide, or capable of or intent upon suicideif a person is in crisisde facto their decision-making capacity is impaired.
Let us also remember that a recent addition tothe Mental Health Alliance is the Samaritans. The organisation has some expertise in suicide and in people who are in a state of crisis and it has been alarmed at the implied connection between committing suicide and suffering from a mental illness. It does not agree with that. It has also signed up to the impaired decision-making clause. The Samaritans organisation talks with some expertise. In whatever way it reached its decisiondemocratically or nothowever official or unofficial its brief might have been, and on whatever basis it signed up to join the Mental Health Alliance, the organisation believes that an impaired decision-making clause is beneficial to people and certainly would not lead to an increase in suicide or an increased risk of suicide. Some volunteers within the organisation might take a different view, but that is what the organisation is officially saying, and experts such as the Samaritans are people to whom we need to listen.
Ms Winterton: I want to clarify whether the hon. Gentleman is actually disagreeing with what the Opposition said in the House of Lords. The official Opposition spokesman argued there that the law and the state have no business interfering in the lives of people who retain decision-making capacity despite being seriously ill, if the risk that they pose is to themselves.
That is a manifestly different position fromthe one that the hon. Gentleman has just proffered. Furthermore, he has quoted from evidence, but does he accept that the British Psychological Society has said that a very small number of people believed to be at risk of self-harm or suicide by this approach would be permitted to refuse treatment if their decision making was not considered to be significantly impaired?
The hon. Gentleman cannot have it both ways. He cannot say that everybody would be covered by the proposed provisions on impaired decision making as they stand, but that we need to include a test just in case anybody is not. His argument must be that there are people whom we should not be treating, as his partys spokesman said in the House of Lords. That is the inevitable logic.
Tim Loughton: Has the Minister finished? I spoke to my colleague in the Lords, Earl Howe, who was at the forefront of the debate there, and I have his comments before me. The point that he was making, which he made directly to me as well, was that of course we are not in the business of allowing or even encouraging a position that would fail people to the extent that more suicides would result. We believe that the impaired decision-making clause is a much better preventive measure. The question that Earl Howe asked was: why should the law allow the overriding of the wishes of people who have the capacity to determine their treatment?
Tim Loughton: If the Minister will allow me, I shall continue a little longer. Our debate so far has been entirely about whether people should be sectioned or not; we have not touched at all on the issue of treatment. Many people under section still retain capacity, but the clause allows people with capacity to have a say on their treatmentthat is entirely allowed.
Tim Loughton: Calm down, Minister. How can we justify saying that we are happy for somebody who has been sectioned to have their wishes and their previous experience completely overridden as far as their treatment is concerned? I shall give way to the Minister, before she bursts.
Ms Winterton: The hon. Gentleman has just said that there are many people currently under sectionwho retain their ability to make decisions. Under his proposal, those people could not be detained, because the impaired decision-making test would trump the test of whether the person was a danger to themselves or to others. Furthermore, will he give a number for many people? It is curious that the British Psychological Society said that there were very few such people, whereas the hon. Gentleman says that there are many. How many is it?
Tim Loughton: We keep going back to the British Psychological Society. It has never had so much publicity as it has had today in the Committee. Let me quote an example from Dr. George Szmuckler, who is involved with the Institute of Psychiatry. Speaking about capacity assessments of different types of people, he said:
The research at the Institute of Psychiatry involving both patients on the medical wards at Kings College Hospital on the one hand and 112 patients on the psychiatric wards at the Maudsley on the other, found similar percentages of patients with impaired capacityaround 40 per cent.and did not find significant differences in the reliability of capacity assessments.
The point that he was making was that people with physical illnesses lose their capacity just as much as those with mental illnesses. The point that I am trying to make is that people with a long-term mental illness will have been subject to all sorts of medical treatment and other treatments in the past. Many of them therefore build up a degree of expertise themselves as to what treatments and drugs work and which may have negative effects. If they retain some capacity to make those judgments, those judgments should be listened to. If they are receiving long-term drug treatment that can cause obesity, or may cause their hair to fall out, or cause all sorts of liver or heart problems, surely they should be able to have some influence over that treatment. That is what the clause is all about.
Mr. Boswell: I am sure that my hon. Friend will also have noticed another witness. Clause 10 states the fundamental principles that should inform the code of practice. The first three are:
(a) respect for patients past and present wishes and feelings,
(b) minimising restrictions on liberty,
(c) involvement of patients in planning, developing and delivering care and treatment appropriate to them.
If those principles apply, surely it is much better that they should do so than that the patient should be put under compulsion as an alternative.
Tim Loughton: My hon. Friend is right and the Minister mentioned that earlier in her references to best interests. As my hon. Friend said, best interests include past and present wishes as set out in the Mental Capacity Act 2005. It is not just about access, but about treatment. The problem seems to be that mostof what the Minister has said today was based on the effect that this provision might have on people self-harming. She ended with a great cry of force that this will have an impact on public safety too. She sneaked in the old canard, which has been a particular focus of the Government, that it is the public who are being put at risk.
By that same token, should not the alcoholic who is a driver have his licence taken away because he may, while under the influence of alcohol, kill someone? Similarly should not the diabetic who is not taking his medication have his licence taken awaynever mindbe restricted? Subject to passing occasional tests, a diabetic is at liberty with a physical illness that could result in them causing damage to someone else. We are talking about people who retain capacity who are being treated differently. That is the whole point of the difference between them.
Ms Winterton: I am worried that the hon. Gentleman does not understand the effect of the clause. The clause prevents the detention of people who are a risk to themselves or a risk to others unless it can be shown that they have impaired judgment. It is nothing to do with the treatment that they might receive once they are detained. That is absolutely separate. It simply prevents their detention in the first place. It is important that he acknowledges that that is what it does.
Tim Loughton: I totally acknowledge the point that the Minister is making, which is predicated on a subjective interpretation that an impaired decision-making test will in some way be a greater hindrancefor people accessing treatment than is the current legislation. What we said earlier was that people who are in a state of distress and are likely to commit suicide are more likely to be picked up on the basisof impaired decision making. We seek to protectthose people. The Ministers is an entirely subjective interpretation of what will be achieved by using an impaired decision-making test.
Tim Loughton: May I just make one more point? The other basis on which the Government have got it wronggoing by an earlier reference to the numbers needed to treatis the assumption that treatment works. We know that, as with any physical illness, a lot of patients with a mental illnesses will not respond to the treatment that is prescribed for them on the first,
For suicide, the statistic is that something like one in 100 might benefit from treatment to prevent them from meeting that end, and for homicide prevention the figure is some one in 2,500 to 5,000. There is no guarantee that the treatment will work. It has to be judged on the basis of the numbers needed to treat. By the Ministers own NICE set-up, that is the basis on which the efficacy of a treatment will be judged. The point is that for some people compulsory treatment will not be beneficial. For them, treatment without compulsion is more likely to be successful and in their best interests.
Ann Coffey: I am sure that the hon. Gentleman will agree that that is exactly the situation that exists at the moment. Treatment for mental health problems has never been totally effective for everybody at the time when they have received it, because giving such treatment is a more difficult intervention than giving drugs for a disease. The situation that the hon. Gentleman describes is a reflection of our ability to help people with mental health problems; it is not something new. He cannot do anything about it by ensuring that clause 4 is part of the Bill; we are where we are.
Tim Loughton: I accept the hon. Ladys point. I do not disagree that the system has shortcomings; we know that it has them, just as the legislation and the service provision do. If the service provision were perfect, legislation of this sort would not be necessary, or at least it would not need to be so severe. We are going to get it right only if the service provision isin place.
What mystifies me is that on every clause so far the Government have taken the attitude that a section is on a service providerthe mental health trust or whatever it might be. It is not. The section is on the service user to comply with treatment. This legislation is being used almost as a means of forcing the provider to provide treatment. If treatment is required, it should be provided anyway by virtue of the fact that the mental health service is working. Our fear is that too much of this legislation is designed to make up for shortfalls in this countrys service provision.
We have spoken for a long time on this clause[Interruption.] I want to bring my comments to a close. There are serious inconsistencies between this Billand the Mental Capacity Act 2005. We could have suggested a capacity test as a threshold for this measure, but it is difficult to use in borderline cases, and impaired decision making is a more flexible test and a more familiar concept to professionals. Thereis an anomaly in the fact that it has been used in Scotland, and the clause is largely based on the Scottish experience. As it is apparently good for Scotland and has been working there without the sort
There is clearly a major gulf between us. We both approach this on the basis that we need to know whatis best for service users and for the clarity of professionals providing that service. We think that clause 4 provides that extra clarity. That is what the professionals seem to support.
Angela Browning: It seems to me that we have heard quite a lot in the debate on this clause about capacity and the Mental Capacity Act 2005. Having sat on the scrutiny Committee and the Standing Committee that considered that legislation, I think that it is a verygood Act. However, I think that the assessment of impairment is also applicable. It is something that the Minister has rejected. I would like to put on record, for the benefit of my hon. Friend, the General Medical Councils definition of the difference between impairment and capacity. Capacity, or incapacity as the GMC calls it,
broadly involves a disorder of brain and cognition,
whereas impaired decision-making
is primarily a disorder of the mind in which a decision is made, resulting in the decision being made on the basis of reasoning coloured by a mental disorder.
Therefore, this clause takes into account the possibility that someone could be suicidal or even dangerous to others. On that basis, the clinician would be making a judgment. The patient could have quite well advanced cognitive function but their impairment would mean that the clinician had to decide whether they needed to be detained. That does not mean that the patient could not be involved in that decision making.
Tim Loughton: My hon. Friend is absolutely right and puts it more clearly than I have been able to upto now.
Dr. Pugh: Perhaps the Minister and the hon. Member for East Worthing and Shoreham are not quite as far apart on matters of substance as they believe. He quite correctly said that impaired decision making has a clear meaning for psychiatrists; if 99 out of 100 psychiatrists were asked to decide who in this room had impaired decision making, they would come to much the same conclusions. It is, therefore, clear for psychiatrists. However, the point is whether it is clear for legislators. I have seen nothing to persuade me that we, as legislators, are perfectly clear about what we mean by impaired decision making and I feel that we ought to be.
Dr. Naysmith: I thank the hon. Member; he has been very generous in giving way to many people this afternoon.
Dr. Naysmith: Foolhardy is a good word. The hon. Gentleman has made numerous references to the Scottish Act this afternoon. He will recall that I stumbled by accident into a meeting of his the other day at which he was taking evidence. One of the witnesses, a psychiatrist, was saying that the Scottish Act, although it was passed in 2003, had not been implemented for long enough for any conclusions to be drawn and that the numbers were so small that he did not think that any conclusions could be drawn from it.
Tim Loughton: I agree with the hon. Gentleman on the basis that the Milan Committee discussed this long and hard in preparation for the Scottish Act, as did the pre-legislative Scrutiny Committee in preparation for the Bill. It is not something that has been plucked out of the air. It is early days, although that has not stopped the Secretary of State from trying to claim figures for the number of children now being detained in adult wards, in which I think that she was quite wrong. It is too early. However, Scotland has done it and many people are happy with it in Scotland and many people were happy to put it in place there. So far, at this early stage, it does not appear to have led to the horror stories that the Minister seems to suggest will occur.
In the interests of moving on, I would like to sit down now. [Hon. Members: Hear, hear.] Clearly, all hon. Members are in favour of that. We are perfectly happy with clause 4. There are all sorts of confusions over it, but we think that it gives extra clarity and a good steer to professionals, who are in favour of this measure. On that basis, I hope that the Government will not push this matter to a vote, but if they do we will vote in favour of retaining clause 4.
Mr. Kidney: Thank you, Miss Begg. It is a pleasure to serve on a Committee that has you in the Chair, with your usual assured skill in keeping us all in order.
I oppose clause 4 because it introduces a test that is new, additional and may have unforeseen consequences that could be detrimental to people in the future if we pass it in its present form. I want to follow on from what I thought was a very constructive contribution to the debate by the hon. Member for Southport. He asked what we might do instead if we accept that there is still improvement to be made in the Bill but that removing clause 4 is not the right improvement.
I have a briefing from the Mental Health Alliance, which it sent to Members of the Committee. It is part of a detailed briefing that they sent us on individual aspects of the Bill, so its heading is Impaired Decision Making. It is not the same as MH21 in the bundle of documents that we have.
As I said on Second Reading, I would like to say that I have the greatest respect for the individual members of the alliance and for the alliance as a whole, but, of course, it is not homogenous and all its members have not agreed on every aspect of its submission. Indeed,
Of course, we all now have MH40, a briefing from a number of other organisations that are members of the alliance, but who write in respect of their professional qualifications and responsibilities. They say that they are writing
to ensure that Parliamentarians are fully aware that regarding certain key aspects of the Bill, the Alliance does not speak for our organisations, and that we disagree fundamentally with several of the public statements made by them.
I am just pointing out that it is not always the case that the alliance must be right, and must be speaking for all its members.
My starting point is a point that has been made by other Members in the debate. The briefing says:
Practitioners in both physical and mental health care regularly conduct tests of capacity, as they are required to do in relation to consent to medical treatment.
That is an important point that a lot of people have overlooked in the debate so far. We should remember that a practitioner giving treatment without consent could be convicted of an unlawful assault on a patient. A practitioner who detains somebody without their consent could be guilty of an offence of unlawful imprisonment. So, that is a very important first test. However, the crucial difference between mental and physical health, of course, is that, once that assessment is made, a psychiatrist, being presented with a possible mental illness, can override the capacity and apply, by law, a power to detain.
That is an important starting point for our debate. As the hon. Member for East Worthing and Shoreham has just said in his contribution, there is evidence that people who still have capacity are being detained at present. In fact, the alliances briefing says that
A recent study found that a significant minority of detained patients, particularly those who had been detained on a previous occasion, retained their capacity.
That is an important starting point. Incidentally, the reference for that study is Prevalence and predictors of mental incapacity in psychiatric in-patients, by Cairns and others in the British Journal of Psychiatry in 2005.
I think that is our starting point. Capacity is something that all psychiatrists and medical practitioners arevery accustomed to trying to establish, but at the moment it is not the deciding factor when exercising the powers under the Mental Health Act 1983 to compel detention.
It is also important to bear it in mind that Parliament has provided for a very long time the power to override capacity and detain compulsorily, most recently in the Mental Health Act 1959 and the Mental Health Act 1983, which is the Act that we are debating now. I pause to point out that, in both of those years, the Government of the day was a Conservative Government who clearly felt, as a matter of principle, that there were occasions when it was right to override somebodys capacity and detain them against their will for compulsory treatment. If people now want to debate the principle of doing that, let us have that
I have briefly reviewed why such powers were felt to be appropriate in 1959 and 1983, and why we still think they are appropriate today. I think that the less good argument is a paternalistic one; the argument that we the parliamentarians and we the psychiatrists think, This is good for you, whether you like it or not. It is a matter of your safety or public safety and we should do this to you.
There is a subtler argument. If a person is presenting with a potential mental disorder and is saying, I refuse to have treatment, to what extent is the refusal to have treatment part of the symptoms and the outward emanation of the mental disorder? That is why I said in an intervention this morning that psychiatrists were in a particularly difficult situation in making these very, very difficult judgments on our behalf. We give them the power and I think that we have an obligation to back them when things go wrong, as they have done in a high-profile way on a number of occasions and no doubt will again in the future. That is the question of capacity.
Some have arguedthis is in the alliances document, toothat the threshold for compulsory detention should be capacity. If a person has capacity and says, No, I refuse to have treatment, there should not be a power to detain them compulsorily. That brings us to the quote that my right hon. Friend the Minister has used several times from the British Psychological Society about letting them go even if they might be a danger to themselves and to other people.
Such a change would be a radical shift in the present state of the law and a very dangerous one. The alliance draws back from that and says instead, How about impaired decision making as an additional test that is a threshold for compulsory detention? It describes that as a less demanding test and a softer option than mental capacity. Clearly, it recognises that mental capacity as a threshold would be very dangerous, but that this provision is something additional to what the law requires at present; it is a meaningful test. As the Minister said, some people clearly will not reach this threshold and will be turned away, even though they are presenting in such a way that many people would think that they ought to be treated even if they will not consent to it.
So I hesitate to say whether we should have an additional test and I look, then, to where we are with the words before us today. The explanatory notes to the Bill say that
there is no precedent for this provision in legislation in England and Wales.
However familiar psychiatrists are with such a phrase, interpreting it among themselves and in their assessments of patients, it is not something which in England and Wales has legal meaning or of which there is legal understanding such that we can all say that we are confident what the outcome of adopting such a test would be.
The alliances briefing says that we can now lookto an Act in Scotlandthe Mental Health (Care and Treatment) (Scotland) Act 2003which says that
a patient cannot be brought under the Act unless his ability to make decisions about his treatment is deemed to be significantly impaired as a result of his mental disorder.
I immediately point out that that wording is different from the wording in our Bill, so even if anyone had evidence of how the changes have been effected in Scotlandthey do not yet, because it is too soon to tellit still would not be a great guide for us, because it is a different test.
The alliance quotes the British Psychological Society in a different contextits evidence to the Joint Scrutiny Committee back in 2004. In its submission, the society says that it notes that
the Human Rights Act legitimises such compulsion only in the case of persons of unsound mind. As psychologists, it is axiomatic that being of unsound mind equates to being significantly impaired in decision-makingin this case being harmfully and significantly influenced by the mental disorder.
I think that we are being in a sense conned. It is being said to us that it is axiomatic that if a person says that they want to commit suicide, they must have impaired decision making and therefore, Dont worry. We will still detain them. However, as the Minister has warned us time and again, that is not necessarily the interpretation of the practice that will follow as a result of adopting this test, so I for one am extremely hesitant about accepting it.
My last word on the alliances briefing is this. Atthe end, it helpfully refers us to the world view about what good legislation should be. It says that theWorld Psychiatric Association approved at its general assembly on 25 August 1996 a statement of its ethical standards. The briefing says:
Article 4 states When the patient is incapacitated and/or
incidentally, the and/or is important
unable to exercise proper judgment because of a mental disorder, the psychiatrists should consult with the family and, if appropriate, seek legal counsel, to safeguard the human dignity and the legal rights of the patient. No treatment should be provided against the patients will, unless withholding treatment would endanger the life of the patient and/or those who surround him or her. Treatment must always be in the best interest of the patient.
I happen to think that the Governments view of what this law should say is closer to that statement thanwhat clause 4 includes in the Bill as a result of the amendment in the House of Lords. We may not all necessarily be reassured that that good statement is completely covered by the Bill. Like the hon. Member for Southport, I want to continue to consider whether some other amendment could reassure everybody that the use of the powers will be interpreted in accordance with that statement of principle. We may be able to have a debate about that when we discuss clause 10, but, for the moment, I do not think that this clause should stand part of the Bill.
Ms Winterton: Obviously, this has been a full debate, and I want briefly to pick up on a few points made by hon. Members.
The hon. Member for Southport rightly said that there is a difficulty in adopting a test such as that which is proposed, because we are all clear that we do not
We should ask what we know the effect will be. We do not know, and merely to say that something happens in Scotland should not be our approach. We know various things, but as the hon. Member for Southport said, we do not know very much about this extra testit is a leap in the dark. My hon. Friend the Member for Stockport said that the element of confusion is enormous, particularly in respect of the Mental Capacity Act 2005.
We are further taking away clinicians discretion to decide whether a person poses a risk to themselves or to others. Another test is being put on top of that, and it will mean that certain people will not be able to get treatment. Everybody is agreed on that. The British Psychological Society says that the number involved will be small. The hon. Member for East Worthing and Shoreham said that many people would not necessarily need to be detained if such a test were included. The figures cited vary from very few to quite a lot, but as my hon. Friend the Member for Stafford said, differences also exist within the Mental Health Alliance about whether the provision on impaired decision making should be included. The Royal College of Nursing has said that to include it would be wrong because certain people would not get treatment.
I ask Opposition Members to consider the fact that they do not know the number of people who will not get treatment, although they know that we will have to say to some people, I am sorry but the impaired decision-making test overrides the test of whether somebody is a danger to themselves or to others. Even where someone is a danger to themselves and to others, they cannot be detained because they do not have impaired judgment. This a matter of numbers, but let us make no mistake: the numbers exist. It is wrong for us to change the current position and do something that we all know will lead to fewer people getting treatment. That is why I ask the Committee to reject clause 4.
Dr. Pugh: Will the Minister help me with a slightly tangential point? Are the conditions for compulsory admission for treatment identical in every respect to those for admission for treatment? Once conditions are met, cannot a person simply be admitted but treated in whatever way it is decided that they want to be treated?
Ms Winterton: Again, there is a problem with the test. In many cases, treatment is given to people who started off with impaired judgment, but if an individuals judgment became less impaired and that person went before a tribunal and on that particular day the condition had changed, it would override the danger to themselves or others. That must be remembered about the test. The numbers are there; they range from very small numbers of people to larger numbers who, as the hon. Member for East Worthing and Shoreham said, would not be detained as a result of this change. I therefore ask hon. Members to think carefully about making such a change.
Question put, That the clause, as amended, stand part of the Bill:
The Committee divided: Ayes 8, Noes 11.
Division No. 3 ]
Question accordingly negatived.
|©Parliamentary copyright 2007||Prepared 27 April 2007|