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Session 2006 - 07
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Mental Health Bill [Lords]

Mental Health Bill [Lords]



The Committee consisted of the following Members:

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

Public Bill Committee

Tuesday 1 May 2007

(Afternoon)

[Ann Winterton in the Chair]

Mental Health Bill [Lords]

Clause 6

Approval of local spending plans
Question proposed [this day], That the clause stand part of the Bill.
4.30 pm
Question again proposed.
The Chairman: I remind the Committee that with this we are taking the following amendments: No. 60, in clause 11, page 7, line 10, at end insert—
‘(11) After that subsection, insert—
“( ) No person can act as a responsible clinician unless he is capable of providing objective medical expertise of mental disorder.
( ) Objective medical expertise of mental disorder shall have the same meaning as in Winterwerp v The Netherlands (1979-80) 2 EHRR 387.”’.
No. 61, in clause 13, page 8, line 45, at end insert—
‘( ) After that subsection, insert—
“( ) No person can act as a responsible clinician unless he is capable of providing objective medical expertise of mental disorder.
( ) Objective medical expertise of mental disorder shall have the same meaning as in Winterwerp v The Netherlands (1979-80) 2 EHRR 387.”’.
Government amendments Nos. 22, 24, 25 and 28.
It would be helpful if, at the start of Committee proceedings, everybody were to check their mobile phones and other devices and switch them off or turn them to silent.
Tim Loughton (East Worthing and Shoreham) (Con): Welcome, Lady Winterton—[Interruption.]. I am not sure where I was interrupted, so I thought that I might go back to the beginning and start again. I think that I was just about to explain the case of Winterwerp v. The Netherlands 1979, which is the basis of the two amendments to which I spoke for most of the morning. They would amend clauses that we are not debating at the moment, but that is the way in which things work.
Winterwerp v. The Netherlands 1979 produced an important European judgment on mental health law. The ruling was that, except in an emergency, the detention of a person of unsound mind will be lawful only if, first, the person detained is reliably shown tobe of unsound mind—that is, by objective medical experts—secondly, the relevant mental disorder is of a kind or degree warranting compulsory confinement, and thirdly, there is a persistence of such a disorder to justify continuing detention.
I was talking about the position of the Joint Committee on Human Rights. It asked the Government to explain further their view that medical expertise need not necessarily involve a doctor. I am aware that the Department of Health takes the view that the phrase “medical expertise”, as referred to by Winterwerp, was used in the wider sense and the Court was not seeking to lay down which sort of qualifications available in a national system would be acceptable. However, the JCHR and a number of professionals do not agree with that. The JCHR disagrees particularly with the Government’s definition of objective medical expertise. It says:
“In Varbanov v Bulgaria the Strasbourg Court gave every indication...that objective medical expertise involved reports from psychiatrists who are doctors. The Court made it clear that the opinion of a medical expert who is a psychiatrist is necessary for a lawful detention on grounds of unsoundness of mind. This requirement would have been met had the doctors present at the admission furnished an opinion that the applicant needed to be detained for psychiatric examination. This indicates that the opinion justifying detention should come from a medically qualified expert...who has recognised skills in psychiatric diagnosis and treatment.”
My point is that, if the Government get their way, there is every chance that there will be serious legal challenge of the basis of the legislation. The Minister has warned on a number of occasions against having a field day for lawyers. This is a field day for international lawyers. I would like to know on what evidence the Government have based their opinion that their proposed change to the legislation is sound and that it will not be subject to legal challenge. It would be useful if the Minister would give us details as to which legal opinion the Government have taken. The Law Society, the JCHR and a number of others have severe reservations, based on case law, about whether the changes will be workable.
There is another angle to the issue, which is the interaction between the Mental Health Bill and the Mental Capacity Act 2005, which treats these matters differently. The mental health assessment, one of the six assessments required in the 2005 Act for a Bournewood deprivation, must be carried out by either a registered medical practitioner approved under section 12 of the Mental Health Act 2005 or a registered medical practitioner who has special experience in the diagnosis and treatment of mental disorder. So, in those circumstances, only a doctor has responsibility. There is clearly an inconsistency between this Bill and the Act that is already law. Again, it would be useful if the Minister would tell us how she intends to square the circle on those two incongruities.
The BMA does not know of any international precedent for such an arrangement whereby detained patients do not come under the direct responsibility of a consultant psychiatrist. It cites Canada, Australia, the United States and other countries where that formulation just does not exist. We need to know why things would be different in this country, and how, if the Government get their way and overturn the Lords amendments, they expect the new arrangements to pertain without serious legal challenge.
It is worth reiterating the training that psychiatrists must undergo. Two years after leaving medical school, trainees enter a rotational psychiatry programme, an elaborate passage that equips the would-be psychiatrist with knowledge of anatomy, physiology, pathology, pharmacology, medicine, surgery and psychological therapies. During the senior years of training, most junior doctors will acquire detailed knowledge of mental health law, teaching, audit, research and management skills. In contrast, mental health nurse training has moved away from a medical model in the past decade, so trainee nurses are no longer required to undergo training in medicine. Different disciplines are brought to bear through the experience and expertise of the different professionals under discussion.
Dr. Ian Gibson (Norwich, North) (Lab): Is the hon. Gentleman saying that in terms of medicine the training takes eight years? Will he confirm that there are six years of training as a medical student and two further years of specialty training? Is that what he is saying about training doctors?
Tim Loughton: I believe that those figures are right on the training of doctors. For a full-blown consultant psychiatrist, however, we are talking about 13 years, which means that considerable training, expertise and experience go into the specific job that psychiatrists are put in place to do. It is different from what a psychologist and consultant nurse will do.
To return to the premise of the Lords amendments, it must be in the best interests of a potential patient if a professional with the most extensive experience possible is available before the most momentous decisions in a patient’s life are made: first, the decision to section, with which the Government take no issue; and, secondly, the decision to renew sectioning. Some of us contend that the latter is a more serious and less obvious consideration, which is why the fullest expertise must be brought to bear.
The Lords amendments would ensure that, before a detention was renewed, patients would receive similar consideration to that which they received during the original sectioning order. Surely, we just need to replicate the rigour of the original process. The amendments were changed in the Lords after the Government gave assurances in Committee about the skills and competences that would be required of a responsible clinician, which would be included in the code of practice. Again, it would be useful if the Minister would provide some details on what has happened since then.
The purpose of the amendments is to find some accommodation with the Government based on a clear reference to a legal case—a precedent in medical law—about what would be acceptable in the courts. We framed the amendments to refer to the case of Winterwerp v. The Netherlands, so that the objective medical expertise of mental disorder would have the same meaning as it has in that case. The amendments are a belt and braces exercise.
In conclusion, I repeat that the amendments would not debase the role of all other professionals involved in patient care; they would ensure that at a difficult time the very best professional expertise was brought to bear on the patient. When discussing the amendments that gave rise to the clause, Lord Carlile said:
“Each renewal of detention is a fresh deprivation of liberty.”—[Official Report, House of Lords, 19 February 2007; Vol. 689, c. 940.]
I wholeheartedly concur with that.
There are glaring inconsistencies in the Government’s case, in having moved from their original position and now in keeping the medical conditions pertinent to the original section, and the potential inconsistency with the 2005 Act. I fear that if the Government get their way and overturn the amendments, it will be a recipe for confusion, particularly as to where the buck actually stops on decisions being made for patients’ renewed detention. Surely, that cannot be in the best interests of patients. Our amendments, which I propose formally, are a sensible way of accommodating the Government’s position and achieving a practical and workable solution in this important part of the Bill.
Several hon. Members rose—
The Chairman: Order. Before I call the Minister or any other hon. Member, may I say that the hon. Gentleman cannot formally propose the amendments, but he can indicate later whether he would like a Division on them?
Tim Loughton: On the basis that I do not have to repeat what I said, may I indicate formally that I would like a Division on the amendments?
Sandra Gidley (Romsey) (LD): I support the hon. Gentleman’s comments. I do not want to repeat at length too many of his points, but some are so fundamental that they cannot be stressed frequently enough, the hope being that the drip, drip effect will result in their getting through.
Liberal Democrats are not against multidisciplinary working, and the majority of us actively support it. I say “the majority” because I have not canvassed opinions individually, so I do not feel qualified to say that we all support it. However, it is in the best interests of patients. It also provides a better working environment for health professionals if their skills are acknowledged and used. Good multidisciplinary working is a win, win situation.
Dr. Brian Iddon (Bolton, South-East) (Lab): Does that also mean joint working and joint decision making?
Sandra Gidley: If the hon. Gentleman bears with me, I will come to decision making.
I recognise the benefits of multidisciplinary working almost more than anyone, because I am a pharmacist by profession. Pharmacists and other primary health care professionals could learn a lot from what has happened in the mental health sector when developing joined-up services for patients. The word “patient” is key, because we must always have the best interests of the patient at heart.
The Minister rightly highlighted the extent of training that other professionals must undergo to become responsible clinicians. Unfortunately, the document to which she referred this morning did not arrive in my office until after the start of the Committee, but I appreciate her intention to share the information.
There is an inconsistency in the Government’s approach to mental health legislation. They have decided that two doctors are needed to start a section, and that two professionals are needed to put a person on to a compulsory treatment order, but that two people, one of whom is a doctor, are necessary to deprive a person of liberty under the 2005 Act. If the Government had their way, renewing a section could be done on the basis of only one opinion, which is not necessarily that of a doctor. There does not seem to be a consistent view throughout the mental health legislation.
However, this is not about whether we hurt the feelings of any particular profession, and I find it hard to believe that the ultimate and professional recognition seems to hinge on whether that professional is deemed capable of depriving a person of their liberty for six months. Psychologists, nurses, occupational therapists are actually bigger than that. There is more to what they do, and I cannot believe that this is such a fundamental issue for them, or that they will leave the professions in droves if they are deprived of the right to do this. It has been largely overlooked in this discussion that, according to the House of Lords amendments, those people still have a key role to play.
4.45 pm
That brings me on to the shared decision making that the hon. Member for Bolton, South-East mentioned. Clause 6(3) clearly states that the responsible clinician and the medical practitioner need to agree. The legislation does not say anywhere that the medical opinion has greater weight, and it does not say that the responsible clinician has less weight either. In other words, there has to be an agreement between the two. If somebody is to be deprived of their liberty for a further period, that is a perfectly reasonable thing to expect.
The clause, as it stands, does two things. It provides reassurance both for those patients who would want to feel that they had received the greatest clinical input, but it also reassures those patients who, for whatever reason, mistrust psychiatrists. We must acknowledge, as was acknowledged earlier in the debate, that a number of mental health users mistrust the system. In other words, with the Lords amendment, we have the best of both worlds. The opinion of somebody whohas been responsible for looking after the patient for six months is going to be of equal weight to that of a medical practitioner who, in ideal circumstances, has some knowledge of the patient.
More importantly, having the two people decide provides a safety net. I was reminded of a constituent who came to see me. I know that is sometimes easy to be taken in, but this woman seemed incredibly rational, and she made a very good case, pointing out that her husband had put together evidence that, in effect, had her sectioned. I shall not bore the Committee with the details, but in such cases someone would have more protection if two independent-minded professional people were involved in further decision making than if the matter were left to just one person, whom the individual might not trust.
The Minister of State, Department of Health (Ms Rosie Winterton): The hon. Lady is aware that, at the moment, we are dealing with the renewal of decisions about detention, which involves only one person. She is quite happy with that, because that person is a doctor. If the person is a clinical psychologist or a nurse consultant, she is somehow not happy with it, and believes that the decision has to go to a doctor for signing off.
Sandra Gidley: I would prefer the two people, as was suggested by the Lords amendment, to have a joint decision.—[ Interruption.] Perhaps I have misinterpreted it, but that is the way that I read clause 6(3). That seems to be what they said. If joint working is the success that everyone claims, surely everybody would welcome the Lords amendment as being in the best interests of the patient.
Mr. Charles Walker (Broxbourne) (Con): I want to make a short contribution to the debate on this clause. I do not profess to be an expert in this field at all, but if I were a mental health patient, being detained against my will, receiving treatment against my will, I would want the person with the most to lose to have the final say on my future—at least on my immediate future, and whether I would be detained. We talk about teams working together, so in essence, I would want the team captain—be it a substantive captain, or a temporary captain because the substantive captain is away—to have that final say against my will.
I do not think that it is unreasonable for a consultant psychiatrist—a doctor—to have the final say. After all, the Bill is not about rewarding people but about safeguarding the rights of patients. The Minister mentioned earlier that she wanted to reward professional groups, and that is a noble thing to want to do. However, ultimately, she should not bow to pressure from professional bodies, such as the Royal College of Nursing, and unions. Of course, it is the role of unions and representative bodies to argue in the interests of their members—we would not expect any less of them. I am a member of Amicus, and I expect Amicus to argue my corner vociferously, but that does not necessarily make it right.
Ms Winterton: I was not going to intervene quite so much, but the hon. Gentleman is saying that one should not bow to interest groups. Does he not feel that he is rather slavishly following the idea that only the doctors know what to do, a view that is expressed by some members of the Royal College of Psychiatrists, without recognising the other organisations that represent 85 per cent. of the other professionals?
Mr. Walker: I take the Minister’s point, but ultimately we are talking about depriving people of their liberty and locking people up against their will. Let us start by talking about what is in their best interests. I feel that it would be in the best interests of people who were having their liberty taken away from them to have a doctor present at that moment to take responsibility for the decision.
Ms Winterton: The hon. Gentleman is suggesting—never mind the fact that the Opposition want to delete the role of responsible clinician through the removal of clause 11 in the first place—that it is better for a patient to be examined, judged and signed off by a doctor whom they might not have seen for six months, rather than to have that decision made by the clinical psychologist or nurse consultant under whose care they have been.
Mr. Walker: I imagine all good doctors, whether they are the patient’s substantive doctor or a doctor called in to review the case, would take advice from the clinicians who were treating that patient. Of course they would. I cannot agree with the Minister’s point; it borders on the fatuous, to be honest—but so much of what she says does. [Interruption.] Does the hon. Member for Stockport want to intervene?
Ann Coffey: Yes, I do. The hon. Gentleman should be able to make an argument without being personally insulting to the Minister.
Mr. Walker: I am sorry, but if calling the Minister’s arguments fatuous is personally—
Ann Coffey: The hon. Gentleman called the Minister fatuous.
Mr. Walker: If calling the Minister fatuous is personally insulting, I apologise, but I am sure that she is big and bold enough to take it on the chin.
In conclusion, I feel strongly that since we are talking about depriving people of their liberty for upwards of or up to six months, it is not unreasonable—
Dr. Iddon: Will the hon. Gentleman give way?
Mr. Walker: No, I will not. It is not unreasonable for the final signature to belong to a doctor—a consultant psychiatrist who, as my hon. Friend the Member for East Worthing and Shoreham has pointed out, will have upwards of 13 years’ experience.
Angela Browning (Tiverton and Honiton) (Con): I have intervened on others during the discussion on the clause, and I do not want to repeat too much of what has already been said. The clause gives me great cause for concern. I sat on the scrutiny Committee on the previous proposals for a mental health Bill and a lot of the discussion was about the underlying intention in the Government’s proposal to reform the Mental Health Act 1983.
In speaking on this Bill, both on Second Reading and in Committee, the Minister has sought to play down what was evident to everybody who took an interest in the subject a year or two back. At the heart of the legislation is the right to detain indefinitely. If anything triggers my concern, it is the renewal of a person’s detention under a different set of rules and qualifications to the initial detention. Why should the very careful and historical need for a senior medical input—indeed, more than one medical input—be changed for renewals? Several hon. Members have made the case that when someone has been receiving in-patient treatment for six months, they may present differently from the way they presented when they were originally detained, perhaps at a time of crisis. Why should the Government wish to water down the qualifications for renewal compared with those for initial detention?
I am reminded of our discussions in the scrutiny Committee. As I have told the Minister more than once, the change in the definition of a mental disorder at the heart of the legislation concerns something that is more behavioural than something that has a diagnosis, and it is a cause for concern that that definition is combined with the right to detain indefinitely someone who has not committed a crime and who certainly does not have the due process of the criminal justice system in their favour.
I remind the Minister that around the time of the Michael Stone case, when there was great public discussion on how we should deal with people like him, there was an exchange of letters in the national press between the then president of the Royal College of Psychiatrists and the then Home Secretary, who is now the Leader of the House of Commons. I am sorrythat I do not have the exact quotations, but I recall that those three letters went along these lines: the psychiatrists expressed their reservations about what an Act such as this would require them to do, in terms of detention, and the then Home Secretary put it into the public domain that if psychiatrists did not want to deal with detentions, the Government would seek other ways of dealing with them and would find others who would. And here we have the solution in clause 6.
The clause is not about creating equal opportunities for nurses, occupational therapists and psychologists: it is about finding a way around the difficulty that the Labour Government met when they bravely told the world out there that they were going to find a solution to the problem of locking up people like Michael Stone. Of course, that attracted a lot of tabloid headlines and the tabloids rode in behind that proposal. It was only when the Government got down to considering what happens in practice in psychiatry and how difficult these cases are that they realised that it would be difficult to draft legislation to provide that solution.
Ms Winterton: Will the hon. Lady give way?
Angela Browning: I shall. I do not suppose that the Minister is going to put up her hands up and say, “Yes, this is our way around that,” but it does not pacify my concerns that that was the motivation for amending the 1983 Act in the first place.
Ms Winterton: I must say that the hon. Lady’s comments were much more measured than those of the hon. Member for Broxbourne, who rather let himself down. However, I want to be clear about what she is saying. Is she saying that clinical psychologists, nurse consultants and all the people who work in mental health and who want to take on these additional roles are going to turn into people who would lock others up wrongly, unlike the psychiatrists? Is she saying that if we were to leave matters in psychiatrists’ hands, everything would be okay, but that the Government will use those health care professionals to lock people up? It is grossly insulting to them even to think that they could be used in that way.
Mr. Walker: Oh, shut up.
Ms Winterton: The hon. Gentleman is muttering, “Shut up,” but I think that—
Mr. Walker: This is really boring now.
Ms Winterton: I am sorry that the hon. Gentleman finds it boring, but I do not think that the health care professionals who are listening will find it boring. In fact, they might find his comments rather revealing of the Opposition’s view.
The Chairman: Before the hon. Member for Tiverton and Honiton speaks again, may I say to members of the Committee that I expect them to behave with good manners and to be courteous to each other? These issues are very important.
5 pm
Angela Browning: Thank you, Lady Winterton.
Although I would be the first to welcome the enhanced roles of a range of disciplines in mental health and I can see from the point of view of multidisciplinary teams that a lot can still be done to the way in which we deal with both in-patients and out-patients—
Dr. Doug Naysmith (Bristol, North-West) (Lab/Co-op): Will the hon. Lady give way?
Angela Browning: I shall do so in just a moment. I want to make a point to the Minister, who has just intervened on me. I wish to know who can provide objective medical expertise, or are we to take it from the anomalies in the Bill, under which one level is needed at one stage in the process and a different level is needed at another, that objective medical expertise is no longer required in the detention of patients? That is how it reads. It is incompatible to say that one set of people can provide medical expertise in one set of circumstances, but that for the same patient with the same period of treatment, it does not matter at the other end.
My colleagues have advanced views about why the renewal is perhaps more critical even than the initial detention. I agree. We also know that there are people in the health service who sometimes deal with potentially dangerous mental patients who would worry about their own safety when managing such people. I can think of situations involving dealing with constituents in high-security units in the Devon area in which the police have had to be called. It is not a matter of casting an aspersion on one set of people, but some cases are complex and a few of them are extremely dangerous even when the people are in-patients. It is at the patient’s end that we should be asking questions, about what is in their best interests. I cannot see that what the Minister is proposing as her objection to the clause is in the interests of the patient.
Dr. Naysmith: The hon. Lady mentioned the Michael Stone case. I agree with you, Lady Winterton, that these are serious and important matters, but whether or not there was any truth in what the hon. Lady said about the circumstances surrounding the exchange of letters, was she saying that nothing could be done for Michael Stone? Surely there must be some way in which to help people like him. We must remember that he had asked for help on a couple of occasions and not received it. Is it not sensible to consider whether there is a possible way in which to help people such as Michael Stone?
Angela Browning: I am not suggesting otherwise for a moment. During our debates, I have made clear my concern about the lack of continuity in the community of people who may or may not have been treated as in-patients, but who have certainly come under the umbrella of mental health services. In my experience of looking at cases—fortunately none was as serious as the Stone case—I encountered a case in which a constituent fell through the net, did not receive ongoing attention from the mental health services and murdered his mother. I do not need to be signed up to the idea that we should be seeking to help such people.
What is the best form of treatment for the person has to be down to the clinical judgment of someone who has had many years studying such complex cases. That is the point. It is not that I am disparaging others and saying that they do not have a role to play—even a very senior role. Of course they do. However, I do not see the logic in the idea of taking decision making away from the person who was involved originally at a senior level in admitting the person for detention. It does not seem to make sense. I must therefore ask myself what is behind the Minister’s motivation for being so opposed to the clause.
Ms Winterton: I want to ask the hon. Lady one simple question: does she think that there is any role for responsible clinicians as we have defined them? If she does, will she say why the Opposition suggest, through their wish to delete clause 11, that that role of responsible clinician should not exist?
Angela Browning: We shall see what happens to clause 6—whether it is put to a vote or changed. We shall come to clause 11 later.
The inconsistencies in the Minister’s argument on the renewal of detention make me wonder what is behind clause 6. It is inconsistent, although that is not to disparage those who have a role to play in other disciplines of mental health care, who would undoubtedly be involved in a patient’s treatment and management. We often use the word “treatment” in this debate when perhaps we ought to use “management”. Many people can play a role in the management of a patient; it does not necessarily follow that that would constitute a treatment. Many disciplines would certainly have a role to play in making sure that detained patients gained as much as possible from their detention period.
We are discussing renewals, and rolling out again after the first six-month period. That surely has grave significance for the individual concerned. I cannot accept the Minister’s argument on the clause. On Report in the Lords, the Government attempted to put some medical input into the patient’s care. Why was that good enough for their lordships, but not good enough for this House?
Ms Winterton: Lady Winterton, may I take this opportunity to welcome you back to the Committee? I did not have that opportunity during my interventions.
I should like quickly to summarise some of the points made. It is important to reiterate that we are trying to make sure that we reflect some of the new ways of working that have been developed for a number of years—with the royal colleges, mental health care professionals and so on—so that we can recognise the new roles that highly qualified nurse consultants and clinical psychologists can play in a multidisciplinary team. We wanted the ability to give them that role as the responsible clinician.
It is important that the Opposition should be honest about how they really feel. They have tabled an amendment that would delete clause 11, thereby deleting the whole idea of the responsible clinician. It is important that we should see the amendment in that light. Their starting point appears to be that they do not want the responsible clinician to exist. We are saying that there is a role and that it is right that in legislation we should be able to reflect what is happening in many areas of service development. If the Opposition’s intention is as I have described, I make it absolutely clear that we fundamentally disagree. We believe that there is a role.
Tim Loughton: I should point out that amendments Nos. 60 and 61 refer to a responsible clinician, according to the definition that I have mentioned.
Ms Winterton: Absolutely; that is why they are so bizarre when read alongside the amendment to delete clause 11. That is what I find bizarre. On the one hand, the Opposition say—[Interruption.] I think that the hon. Gentleman has been called out by his adviser, but I hope that he will stay to hear the arguments.
I start from the point of view that the Opposition may not want a responsible clinician to have any role at all; obviously, the Government do. We come to the issue of the difference, which has been raised. At initial detention, the responsible clinician, who may not be a doctor, decides about renewal. There is no requirement in relation to the European Court of Human Rights for doctors to decide about initial detention. Indeed, we considered whether two approved clinicians should make that decision, because we felt that that could be appropriate, but as a matter of policy, and listening to the points that people made, we decided to keep doctors as making the decision because, at initial detention, some patients are not known to services or have disengaged from services, so a patient’s clinical needs may not be known at that point. We felt that it was practical that doctors, with their particularly broad diagnostic skills, should decide whether people should be detained.
However, once the patient has been assessed and their needs are known, it is right, in our view, that they should be given the responsible clinician who meets their needs best. That is one of the benefits of the responsible clinician policy. The patient may be allocated a person to be in charge of their case who has the particular expertise to address their treatment needs best.
I come to the Winterwerp judgment. The hon. Member for East Worthing and Shoreham is right to say that the European Court of Human Rights held that
“except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of ‘unsound mind’. The very nature of what has to be established before the competent national authority—that is, a true mental disorder—calls for objective medical expertise”.
The reference is not to the expertise of a psychiatrist; it is to “objective medical expertise”.
The competencies that we have set out for becoming a responsible clinician, which have been developed in conjunction with stakeholders, including the Royal College of Psychiatrists, state that a clinician must have the ability to identify the presence and the severity of a mental disorder. I stress to hon. Members that if the person lacks that expertise, they will not qualify to be approved to carry out the work. It is those competencies, which will be in statutory directions, as opposed to the possession of a particular medical qualification, that will ensure that an approved clinician can provide the objective medical expertise required by Winterwerp. That is also, by the way, the view of Queen’s counsel. I am sure that hon. Members will have seen the document from the British Psychological Society—I hate to mention it again!—which sought independent counsel to verify that that it is the correct position.
Angela Browning: Under what the right hon. Lady is outlining, could there be a responsible clinician who did not have the medical qualification that would be sufficient to oversee a treatment plan? If so, who would take responsibility for the treatment plan?
Ms Winterton: As I have said over and over again, it depends on what is right for the individual. If we are talking about psychological therapies being right for the individual, the responsible clinician should be the person who delivers those. If, as my hon. Friend the Member for Stockport mentioned, there was a case of paranoid schizophrenia that required medication levels that needed to be medically assessed, it would be right that a medical practitioner played that role. We are talking about what is most appropriate for the individual patient.
5.15 pm
Tim Loughton: I hope that the Minister will address my point about the Varbanov v. Bulgaria case. It was made clear in the court that the opinion of a medical expert who is a psychiatrist is necessary to qualify as objective medical expertise.
Ms Winterton: Yes, I will address that. The Joint Committee on Human Rights talks about the case of Varbanov v. Bulgaria in support of its view that objective medical expertise involves reports from psychiatrists who are doctors. However, the Government believe that the specific reference in that case to the fact that
“a prior appraisal by a psychiatrist...was possible and indispensable”
related to the specific circumstances of the case. We accept that the case confirmed the need for a medical expert’s opinion where someone of unsound mind is to be detained, but we do not agree that it gives authority to the proposition that a psychiatrist must provide the necessary medical expertise in each case.
Let me just clarify some of the issues, because that might help the Opposition. Clause 25 already requires the responsible clinician to consult one other person who is professionally concerned with the patient’s case before renewing detention. Good practice would certainly dictate that all members of the multidisciplinary team, including the doctor, were consulted, and that is generally what happens. However, I am quite willing to say that we can look at the code of practice if Opposition Members feel that that would be a good way of strengthening how decisions on renewal take place. That would, however, be in the context of there being a responsible clinician, and the Opposition are currently saying that a responsible clinician should not exist in the first place. I hope that that explanation is helpful.
Tim Loughton: It is helpful on a different subject, because the Minister’s colleague in another place promised to return to the issue of how the code of conduct might be strengthened to give us some reassurance, but that has not yet happened, and I wonder how long the Government will take. However, to take the Minister back to her response to my query on Varbanov v . Bulgaria, where has the legal opinion that she quoted been published? Where can members of the Committee have access to that opinion, which was commissioned by the Government, so that we can better inform our deliberations? I have not seen it.
Ms Winterton: I do not know where it has been published, but I can look into the matter for the hon. Gentleman if that would be helpful. I am more than happy to do that, but I do not have details of it in front of me—[ Interruption. ] As if by magic, here it is, which is excellent. I am more than happy to let him and other members of the Committee have copies if that would be helpful.
Tim Loughton: About half an hour ago would have been helpful.
Ms Winterton: I accept that the hon. Gentleman would like to see the opinion, but I can do no more than suggest that I send it to him, as I said. I hope that he will think that that is entirely reasonable.
The hon. Gentleman made a point about the code of practice, and we need to be sure about the outcome of the parliamentary process before we finally consult on what will be in the code. I am more than happy to say that we can start discussions and put forward wording to show how we might clarify how a decision to renew detention would be made and how members of the multidisciplinary team would be involved. Again, however, I emphasise that we should do that in consultation with the professions. We should not just do things quickly and involve only parliamentarians, because the professionals would not find that very satisfactory.
Question put, That the clause stand part of the Bill:—
The Committee divided: Ayes 6, Noes 11.
Division No. 6 ]
AYES
Boswell, Mr. Tim
Duddridge, James
Gidley, Sandra
Loughton, Tim
Walker, Mr. Charles
Williams, Hywel
NOES
Coffey, Ann
Gibson, Dr. Ian
Gwynne, Andrew
Hillier, Meg
Iddon, Dr. Brian
Kidney, Mr. David
McCarthy, Kerry
Moon, Mrs. Madeleine
Naysmith, Dr. Doug
Ward, Claire
Winterton, rh Ms Rosie
Question accordingly negatived.
Clause 6 disagreed to.
The Chairman: We now come to clause 7—
Tim Loughton: On a point of order, Lady Winterton. I thought I had said that we wished to vote on amendments Nos. 60 and 61. May I not do that?
The Chairman: They will come later.
Clause 7 ordered to stand part of the Bill.
 
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