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Session 2006 - 07 Publications on the internet General Committee Debates Mental Health Bill [Lords] |
Mental Health Bill [Lords] |
The Committee consisted of the following Members:John
Benger, Committee
Clerk
†
attended the Committee
Public Bill CommitteeTuesday 15 May 2007(Afternoon)[Frank Cook in the Chair]Mental Health Bill [Lords]Schedule 6Mental
Capacity Act 2005: New Schedule
A1
4.30
pm
Angela
Browning (Tiverton and Honiton) (Con): I beg to move
amendment No. 11, in schedule 6, page 79, line 9, at end
insert—
‘(3) Where the
managing authority deprives P of his liberty by detaining him as
mentioned in paragraph 1(2), the appropriate NHS body or local
authority which has authorised the detention shall make arrangements
for the provision of the accommodation with care or treatment, and it
shall be free of
charge.’.
We
come now to the question of charges and the Government’s
provision to amend the Mental Capacity Act 2005. The issue was debated
in another place, but the Government rejected its proposals, so I make
no apology for reintroducing it in Committee.
There are clear differences in
the treatment of patients deprived of their liberty under the Mental
Capacity Act and that applied to those deprived of their liberty under
the Mental Health Act 1983. In the previous sitting, I alluded to the
fact that I hope that the Minister will give some clarification
regarding those patients who drift, as it were, between one piece of
legislation and the other—we have not as yet had such
clarification.
There
are costs associated with the treatment of patients whose liberty has
been withdrawn under the Mental Capacity Act. Accommodation is free for
a person who is sectioned under the Mental Health Act—their
liberty has been taken from them so that they can be treated—but
the Government propose to charge for the accommodation and care
received by those who have their liberty deprived them under the Mental
Capacity Act. A person detained under section 3 of the Mental Health
Act would find, on discharge, that their after care was free, whereas
the Government propose that under the Mental Capacity Act, after care
will be subject to a charge.
Equally, the appeals process
will treat differently two groups of people who have been deprived of
their liberty. For those detained under the Mental Health Act, the
appeals process will be free, whereas there will be a charge connected
to the appeals process to the Court of Protection under the Mental
Capacity Act. We are seeing the development not only of an unequal
footing, but of a clear disadvantage, particularly on charging, for
those patients whose liberty is removed under the Mental Capacity
Act.
The Government did not accept
that argument in the Lords, so I am asking the Minister to look at the
matter again.
Chris
Bryant (Rhondda) (Lab): This is obviously an important
issue. Will the hon. Lady comment on the situation of foreign
nationals? I have friends who are consultant psychiatrists in London.
They have told me that they regularly face foreign nationals with
personality disorders whom they have to detain—they could not
possibly allow such people to go free on the streets. They are not,
however, British nationals. The consultants suspect that, sometimes,
the relatives of foreign nationals with mental health problems come to
London to dump them. That happens particularly in the case of people
from African countries that do not have suitable mental health
services. What does the hon. Lady think about charging in such a
situation?
Angela
Browning:
We have clear rules about charging foreign
nationals. It is a matter for the Government to determine health
service policy, whether it is to do with physical or mental health. I
have a lot of sympathy for people who are mentally ill. They often come
to the attention of the appropriate authorities only after ending up on
the streets. Anybody who is identified as having a serious illness is
entitled to treatment—charging is a matter for the Government to
decide. I would not preclude foreign nationals from receiving
appropriate treatment whether they had come here of their own volition
or been hoodwinked into coming here.
The legislation begins to
identify and treat people differently, and to apply different sets of
rules to people who, for their own good, have had their liberty
removed. If people are sectioned under the existing Mental Health Act,
everything is paid for, whereas those dealt with under the Mental
Capacity Act are charged for their care. The danger for the Minister is
that once the measures are operational and such things become apparent,
relatives, carers and others might try to encourage patients down the
Mental Health Act route because of the financial consequences for them
and possibly even for those associated with
them.
Mr.
Tim Boswell (Daventry) (Con): Does my hon. Friend agree
that if the circumstances are broadly similar and patients are
receiving the same regime, whether formally in a hospital or otherwise,
and if the essential difference between them is that some are detained
under the Mental Health Act and some under the rather more
comprehensive provisions of the Mental Capacity Act—if there is
no other difference except their in statutory detention—it is a
prima facie case of discrimination under the European convention,
because the public authorities will be delivering a service partially
between one case and
another?
Angela
Browning:
My hon. Friend is right. The purpose of the
amendment tabled by my hon. Friends on both ends of the Bench is to
establish what happens to a person deprived of liberty, particularly in
a care home. It is a slightly different dimension from the Mental
Health Act, because we are now considering not just hospitalisation but
another kind of accommodation—care homes of one sort and
another.
In all other cases where a
person is detained, the charges are paid, but if someone is detained in
a care home or nursing home, suddenly they are compared not to people
detained under the Mental Health Act but to other people resident in
care homes and nursing homes, who may well be there as a result of
their decision, or that of their carers or relatives, that it is in
their best interests. They might be self-funded, paid for by the local
authority or a combination of the two. I suggest to the Minister that
that is not a comparison for her to make, because such people are a
separate group from those whose liberty is denied them for their own
good but under the auspices of the Mental Capacity Act.
Although we
agree with the proposal, we think that it is unfair to expect people to
pay once an authorisation to deprive them of their liberty has been
granted. It will put them at a disadvantage relative to all others
detained elsewhere, usually in hospitals. I think that the Minister has
been looking through the wrong end of the telescope in opposing the
amendment. I realise that it has big resource implications; of course
it does.
Angela
Browning:
The Minister is nodding. I hope to come
to resources later in a little more detail, because she has flagged up
her concern, but the fact that she is concerned about resources is no
reason for her not to do the right and just thing. It is clearly right
and just to the group of people described in the amendment for her to
reconsider the issue. Otherwise, the consequence, perhaps unexpected,
will be that over time, the Mental Capacity Act will be used only in
certain circumstances, and that it will not be as effective, because
people will opt for the Mental Health Act. That would be quite the
wrong effect, and contrary to what she is trying to do in identifying
how she will deal with the Bournewood determination in the European
Court.
Ms
Winterton:
As the hon. Lady said, the amendment seeks to
provide free accommodation, care and treatment for all people deprived
of liberty under the Mental Capacity Act 2005. I would like to
challenge what she said about people choosing between the Mental Health
Act 1983 and the Mental Capacity Act because there are obvious
differences between the two. The criteria under the Mental Health Act
are that an individual has a mental disorder of a degree or nature that
they need to be in hospital, that they are a risk either to themselves
or others and that appropriate medical treatment is available for their
mental disorder. That is a very clear set of criteria. For people to be
detained under the Mental Health Act, there must be a clinical judgment
that all those criteria are met. One cannot go along and say, “I
fancy being detained under the Mental Health Act.” One has to
meet the strict criteria.
In the Mental Capacity Act, we
are talking about an individual with a mental disorder who does not
have the capacity to consent, and it is in their own best interests to
be deprived of liberty; they are not a danger to others. We mentioned a
number of such incidents this morning. Therefore, it is not a question
of choosing between one of the two in a pick-and-mix approach. It is
about meeting the criteria.
Let us take
the situation of a person who is being deprived of their liberty and is
in a hospital setting. That person might have advanced dementia. Their
relatives might be asked not to take that individual outside the ward
because they could become disorientated and distressed. If that was
felt to be a deprivation of liberty, that person would be assessed. Of
course, they are in a hospital setting in which the care and stay is
free. Therefore, what we are talking about is the cost of personal care
in care homes. The people to whom the new safeguards will apply in
terms of an authorisation for the deprivation of liberty will largely
be those with severe dementia or similar problems. Many of them will be
living in a residential care setting. Any financial contribution that
they may make towards the cost of their care is determined by the
national policy on means testing. Since 1948, health care has been
provided free in England and Wales and social care is mean-tested.
Nothing in those new safeguards calls into question those fundamental
principles.
Obviously, safeguards will add
new protections for the human rights of those people and independent
checks will ensure that it is in their best interest to be deprived of
their liberty. There will be new rights of challenge for them and their
family if they disagree with decisions. Giving people new rights and
protections is not a reason to change the arrangements that apply to
funding, health and social care.
Again, I must stress that if a
person was in a care home and subject to a standard authorisation to
deprive them of liberty, it could only be because an independent
assessment had concluded that it was necessary and in their own best
interests to keep them safe. We do not think that that should lead to
changes in the way that their care is commissioned and funded. In many
ways, the care regime for such a person is likely to be the same as
that for others in the care home with a similar condition. There will
be restrictions for the person’s own protection, but that does
not mean that their whole care package should suddenly be free of
charge.
I shall give
an example of an individual called Mary, who has been living in a care
home for a number of years. She has considerable means and is paying
for her care. She chose the home herself. She was able to go out
regularly and enjoyed using all the shared facilities of the home and
garden. Mary suffers from dementia and, over time, her behaviour has
become extremely disturbed in a way that puts her safety at risk, both
when she goes out and when she is in the home. Her family want her to
remain in the familiar environment of the care home as long as
possible, but it has become necessary to increase restrictions to keep
her safe. Eventually, the care home decides that all of the
restrictions may add up to a deprivation of liberty and seeks
authorisation, which is granted. However, given that those restrictions
have been granted in Mary’s best interests, there is no reason
for there to be a change in how her care is
funded.
4.45
pm
We must
consider the views of residents in circumstances when care for another
resident suddenly becomes free because restrictions have been put in
place for that person’s best interests, but their care does not.
Under the amendment, Mary would immediately
cease to pay for her care. That does not seem logical or fair to other
residents. It would create unacceptable inequities between those care
home residents who are deprived of liberty and those who are
not.
Let
us consider Ruth and Jean, two ladies in their 80s who are both living
alone. Ruth develops dementia and, after a time, can no longer look
after herself. Carers are arranged, but she refuses to have them in the
house. Things come to a head when she is found in the road, late on a
winter’s night, unwell and in her nightclothes—something
that we know can occur. An ambulance is called. When she has recovered
enough, a placement is arranged in a care home. That move is supported
by her daughter, but disputed by her son who wants her to go back home.
Initially, Ruth is extremely unsettled in the care home and her
behaviour is very disturbed. Taking account of all the circumstances,
including the restrictions needed to keep her safe, the care home
applies for authorisation to deprive her of her liberty, and that is
granted.
Jean,
meanwhile, suffers a major stroke. After a period of rehabilitation,
she is not well enough to manage at home on her own. She is not able to
make the decision herself and her family, with great regret, agree that
it would be best to move her to a care home. If the amendment were
accepted, Ruth’s care would be free, but Jean would have to pay
for her care. That would be
unfair.
The
decisions in such difficult cases are about whether it is necessary for
a person to be deprived of liberty and whether that should be based
purely on the genuine care and treatment needs of the person concerned.
The amendment would risk introducing financial considerations into the
equation. If we are talking about opting for different scenarios, it
would almost be better for the person to reach a situation in which
they were being deprived of their liberty because, under the amendment,
their care would then become free. That perverse incentive would arise
from the
amendment.
The
amendment would also place a duty on the NHS body or local authority
that had authorised deprivation of liberty to make arrangements for the
provision of the relevant accommodation. The supervisory body might
also be involved in commissioning care arrangements, but that would not
always be so—for example, it would not be involved if a private
arrangement had been made between a family and the care
home.
There are some
genuine problems with the approach that is being proposed. We need to
ensure that there are safeguards in provision of care that requires
restrictions. Treatment is not covered. The hon. Lady’s
proposals would introduce what is tantamount to an incentive for people
to be deprived of their liberty, because that would be the cheaper
option. They could also create distinctions between, for example, two
care home residents, both of whom are receiving good care and
attention, by allowing only one to receive free care. For that reason I
ask the hon. Lady to withdraw her
amendment.
Angela
Browning:
I do not really buy the Minister’s
arguments and I increasingly feel that those arguments are resource
driven. Her own Department’s documentation, in describing such
people, refers to them as
“a small group of people who need
to be kept in a hospital or a care home with a lot of controls on their
freedom in order to protect them from harm.”
By definition,
therefore, the Minister is contemplating a small, discrete group, and
the resource implications consequently should not be
prohibitive.
Detention and deprivation of
liberty under the Mental Capacity Act are subject to article 5 of the
European convention on human rights. Contravention of that article led
to the Bournewood determination in the first place. Article 14 of the
convention prohibits unjustified discrimination in the application of
any of the other articles, including—of course—article 5,
so there is not necessarily any difference between people detained
under the Bournewood provisions and others in the same accommodation
who are being looked after under, say, section 117 of the Mental Health
Act. Both might lack capacity, be compliant, have a mental disorder or
disability, need residential care, require high levels of care and be
subject in their own interests to legislation, yet one would be charged
and the other would
not.
That point was
made to the Government by the Joint Committee on Human Rights. In
paragraph 91 of its communication to the Minister, it
said:
“In our
opinion, to charge someone for accommodation in which they are deprived
of their liberty potentially engages civil rights and obligations and
therefore the right to access to a court to determine those rights
under Article 6 of the Convention. There is potential for
discrimination for the purposes ofArticles 5 and 6 and Article
14, in that a person deprived of their liberty in their own best
interests in a hospital will not be charged for the detention whereas a
person deprived of their liberty in their own best interests in a care
home will”.
I understand
that the Government responded to that in the main simply by listing the
current provisions, rather than by giving a substantive
reply.
I am not a
lawyer, let alone a human rights lawyer; there are others more
knowledgeable than I who are. I am prepared to withdraw the amendment,
but I must press the Minister to ask her officials to look again at the
convention, and in particular the interaction between articles 5, 6 and
14. It seems to me that it is not only those of us who tabled the
amendment who believe that there is unfairness and
discrepancy.
Chris
Bryant:
The hon. Lady said that the problem is one of
resources, so I presume that she would not be so irresponsible as to
table an amendment whose cost implications she did not know. What does
she think those cost implications would
be?
Angela
Browning:
I tabled the amendment because of what is said
in the Bill, and I want the Minister to explain how this group of
people will be treated. I do not believe that there are huge resource
implications. I repeat the words used by the Minister, which were that
“a small group of people” will need to be detained under
certain conditions. The hon. Gentleman is right that there are resource
implications, but I would not have thought that they were so enormous
overall that the Minister would need to turn down the request for the
provisions to be included in the Bill. I am more concerned about
whether the provision complies with the European convention, because if
it does not we will have more test cases. That would be ironic, given
that it was contravention of article 5 that led to the Bournewood
judgment in the first place.
I will withdraw the amendment,
but I ask the Minister to engage with her officials and hold any other
audiences that need to be held to pursue the
matter and get some clarity on how different parts of the convention
overlap. I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Amendment
made: No. 48, in schedule 6, page 88, line 1, leave out
sub-paragraphs (2) and (3) and
insert—
‘(2) The maximum
authorisation period is the shorter of these
periods—
(a) the period
which, in the assessor’s opinion, would be the appropriate
maximum period for the relevant person to be a detained resident under
the standard authorisation that has been
requested;
(b) 1 year, or such
shorter period as may be prescribed in
regulations.
(3) Regulations
under sub-paragraph
(2)(b)—
(a) need not
provide for a shorter period to apply in relation to all standard
authorisations;
(b) may provide
for different periods to apply in relation to different kinds of
standard authorisations.
(4)
Before making regulations under sub-paragraph (2)(b) the Secretary of
State must consult all of the
following—
(a) each body
required by regulations under paragraph 161 to monitor and report on
the operation of this Schedule in relation to
England;
(b) such other persons
as the Secretary of State considers it appropriate to
consult.
(5) Before making
regulations under sub-paragraph (2)(b) the National Assembly for Wales
must consult all of the
following—
(a) each
person or body directed under paragraph 162(2) to carry out any
function of the Assembly of monitoring and reporting on the operation
of this Schedule in relation to
Wales;
(b) such other persons
as the Assembly considers it appropriate to
consult.’.—[Ms
Winterton.]
‘( ) The
relevant person, when they are consulted by the best interests assessor
under paragraph 4(7) of the Mental Capacity Act 2005, has the right to
the support of an appointed Independent Mental Capacity Advocate during
the assessment
process.’.
The
amendment deals with independent advocacy, which we have touched upon
briefly. The Minister said she would bring back proposals in the light
of discussions in another place, where the Minister there said that the
Government wanted to provide tailored advocacy. I can think of nothing
more appropriate to tailored advocacy than the requirement in the
amendment.
We believe
that it is very important that the relevant person, when they are
consulted by the best interests assessor under section 4(7) of the
Mental Capacity Act, has the right to the support of an appointed,
independent mental capacity advocate during the assessment process. The
relevant person should have that access if they need it. Not all will
need it, but the Bill should provide a facility for an independent
advocate to be part of the decision making right at the beginning. I am
not saying that it is needed exclusively at the beginning; there are
other points at which independent advocacy is needed throughout the
process of implementing that part of the 2005 Act, as
amended.
Advocacy is important—it
is the key to promoting the rights and needs of patients deprived of
their liberty. When the Mental Capacity Bill was before the House we
had a lot of detailed discussion about advocacy being important, not
least for some patients in communicating their views. It is sometimes
important also for the person who is trying to assist the patient,
whether they are a professional, a carer or someone who has the right
under the 2005 Act to represent the patient’s views. They would
all benefit from the help of an independent advocate. A person lacking
the capacity to consent to their care and treatment is likely to need
support to express their views, and there could be other communication
complications that require
expertise.
One of our
worries when the 2005 Act went through was that if there was
insufficient advocacy—if it was not provided in a timely fashion
and the advocate was not able to assist and intervene—decisions
would be made without the person’s view being properly
understood. That is important, as is the right to support during the
assessment
process.
5
pm
The purpose of
the amendment is to ask the Minister yet again what the
Government’s intention is for independent advocacy, which the
Making Decisions Alliance is already on record as supporting.
Independent advocacy is also supported by the Disability Rights
Commission, which
stated
“Without
rights to independent advocacy access to such a vital service will
remain a postcode lottery and at the discretion of mental health
professionals. Without such rights the Bill will not, in our view,
provide effective protection for the human rights of mental health
service users in situations where they risk being deprived of their
liberty... Advocacy forms a vital safeguard against the improper
use of power against a person denied their
liberty.”
That
statement could apply to many parts of the Bill. However, it is
particularly important here because we believe that a person’s
treatment will benefit from access to independent advocacy. It could
prevent much misunderstanding during their treatment and management.
Although I am well aware of the resource implications of early
intervention and early access to independent advocacy, it could in the
long run save money and prevent wrong decisions from being
made.
Ms
Winterton:
I certainly sympathise with the aims of the
amendment, but I hope that, when I explain more about the best
interests assessor, the hon. Lady will accept that the aims of the
amendment are covered by the safeguards that we are
introducing.
The
safeguards that we are adding to the Mental Capacity Act 2005 will
introduce someone whose only role in the process is to establish and
recommend what is in the best interests of the person concerned. That
will be the role of the best interests assessor, who will be
independent of everyone else in the process and who will act in the
best interests of the individual. It will be the job and statutory duty
of the best interests assessor to involve the person as far as possible
and to take account of their past and present wishes, feelings, beliefs
and values. The independent best interests assessor will need to do all
they can to involve the person and find out what their views and wishes
are, and the assessor
should have the competence and skills to do that. Of course, that is a
challenge and if the best interests assessor feels that an advocate
would help with the process, they can ask for one to be appointed.
However, it is the job of the best interests assessor to ensure that
they know the views of the individual so that they can make the
assessment in an independent
way.
Mr.
Boswell:
I am grateful to the Minister for assisting the
Committee as we look at some sensitive matters. Would she agree that
this paragon—the best interests assessor—should have a
duty not only to consider the wishes and previously expressed views and
values of the patient, but to make their own judgment? That might be
contrary to previously expressed wishes if they were felt not to be in
the best interests of the person. If that is the case, can the Minister
assure the Committee that the paragons, as I call them, will be
sufficiently trained and have the robustness to make the right
decision? Of course, they will not always get it right, but we would
like to feel that they will address the matter in a well informed way.
My hon. Friend the Member for Tiverton and Honiton made the point, to
which the Minister has partially replied, that it might well be
sensible for them to take a second opinion from an independent
assessor, if that is helpful to the
process.
Ms
Winterton:
The best interests assessor is an independent
assessor; that is the point of having them. If necessary, they could
say that it would be helpful to appoint an advocate—although
they would not do the appointing as that would be done by the PCT or
local authority. It is the job of the best interests assessor to try to
ascertain the wishes of the individual. The Mental Capacity Act code of
guidance gives extensive guidance on the practical issue of
communicating with people who may lack capacity. It is important that,
in many cases, the assessor involves others who are perhaps used to
communicating with the person. That might be the family or carers who
have established a relationship of trust; or they may need to involve
specialist interpreters, signers or, if relevant, advocates. We are
making it clear that the independent assessor should follow that route.
The support of an independent mental health advocate as well would not
be necessary in all circumstances, except for the real circumstances of
there being no one appropriate among friends or family to consult,
which we all refer back to in the Mental Capacity
Act.
Our
problem with the amendment is the possibility of the IMHA and the best
interests assessor both seeking the input of the person concerned and
both speaking to family, friends and carers, which would not only be
cumbersome but also quite confusing for the person and the family.
Frankly, it might also be quite intrusive and heavy-handed and, because
of the possible confusion, could cause unnecessary distress and
anxiety, which I know the hon. Lady would not want to see. I am sure
that the amendment is probing and designed to explore the role of the
independent assessor.
Angela
Browning:
Who would the Minister imagine to be the
independent assessor? Is it most likely to be a social
worker?
Angela
Browning:
I have listened carefully to the
Minister’s answer. I perked up right at the beginning when she
expressed some sympathy, but she cooled off. I felt dashed at the end,
because she was not warming to our
proposal.
There
is a practical problem. Not all social workers in the role of
independent assessor would, for example, be specialists in non-verbal
communications. An IMHA would then be needed, because hopefully they
would have that sort of specialism. Specialists are needed to assist
people with non-verbal communication—not just those without
speech because of a physical disability, but particularly those who are
poor at communicating because they have a communication disorder, for
example.
Mr.
Boswell:
Does my hon. Friend agree that an important
competence for the independent assessor should be the ability to know
when they are getting out of their depth? They need to know when to
call in an expert, either to assist with communication or because of
some other aspect of the best interest test that they might need to
consider.
Angela
Browning:
Indeed, and although I hope that that would not
be the norm, one can envisage an advocate not being employed to support
the person to communicate. In practice, the best interests assessor
might rely quite heavily on information from family members or carers,
who may be experts in communicating with the person. That often happens
and would not be a problem. However, there are occasionally other
cases. I recall service users giving evidence to the Mental Capacity
Bill scrutiny Committee almost making a unilateral declaration of
independence of mum and dad and highlighting the possibility of
circumstances in which mum and dad are not advocating or proposing what
the person concerned would like to be known. I suggest that those are a
minority of cases rather than the norm, but the legislation needs to
safeguard against such unintended consequences. However, I beg to ask
leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Ms
Winterton:
I beg to move amendment No. 49, in
schedule 6, page 91, line 31, leave
out from ‘right’ to end of line 32 and insert
‘to make an application to the
court to exercise its jurisdiction under section
21A;’.
Ms
Winterton:
The amendments change the wording used to refer
to application to the Court of Protection. They are purely technical
and do not in any way alter the rights of the person concerned, or of
that person’s representative, to make applications to the Court
of Protection about deprivation of liberty. Their purpose is to ensure
that references to access to the court are completely accurate. The
correct reference is to a right to make an application that the court
exercise its
jurisdiction under section 21A of the 2005 Act, rather than to the right
to make an application under section 21A. The subject matter
is very technical. I hope that the Committee will support the
amendments.
Amendment agreed
to.
‘(aa) the person
to whom the request
relates;’.
The
amendment would ensure that the person concerned was informed if a
request was made to assess whether they were being unlawfully deprived
of their liberty. We expect such situations to arise only very rarely.
If a person such as a family member believed that their
relative’s liberty was being removed unlawfully, they should
draw that to the attention of the hospital or care home managers and
ask them either to apply for an authorisation or end the deprivation of
liberty. If the managers did not take action, the third party could
apply to the supervisory body to commission an assessment of whether
there was deprivation. If the outcome was that the deprivation was
unauthorised, the full assessment procedure was immediately triggered
as if the managers had applied for an
authorisation.
The
amendment requires the person concerned to be informed by the
supervisory body that a request has been made to assess whether there
is deprivation of liberty, to be informed of whether an assessor has
been appointed, and to know the name of the assessor and the outcome of
the assessment. In most cases, the request would be made by a family
member or friend, who would be able to tell the person concerned. The
amendment is simply for completeness. It will provide an important
protection and I hope that it will be
accepted.
Mr.
Boswell:
It is self-evident, I think, that the amendment
more or less covers the population of people who might have an interest
in the matter and is designed to ensure the issuance of a formal notice
to the person concerned. If that person had others acting for them,
such as an attorney under the Mental Capacity Act, would the
notification to that person be available to the others who were acting
on their behalf and how would it reach them? Has the procedure really
been as comprehensively tied up as I am sure both the Minister and I
would wish?
Ms
Winterton:
That is a very good question, to which I am
awaiting the answer. If, for example, the Court of Protection appointee
was looking after the care of the individual and taking decisions, I
suspect it would be right for them to be informed. If, however, the
individual merely had a financial authorisation from the Court of
Protection, notification might not be appropriate. I suspect that it
might be good practice, but individuals should make sure that they were
not breaching confidences. We will address it in the code of practice,
particularly now that it has been so carefully drawn to our
attention.
5.15
pm
Mr.
Boswell:
I do not think that I can ask for more than that,
although the second course is arriving even as I speak. However, rather
than make a meal of it now,
will the Minister at least undertake to reflect on the point? We have a
common objective; it is simply a matter of ensuring that all the
relevant people who might be involved, whether deputies, attorneys or
whatever, get to know about a request without breaching confidences or
embarrassing
anyone.
Ms
Winterton:
I am helpfully informed that notification of
the attorneys and deputies is decision-specific, so I was right on
that. So the answer is: it depends. We will explore that in the code of
practice.
Amendment
agreed
to.
Amendments
made: No. 51, in schedule 6, page 97, line 34, leave out from
‘right’ to end of line 35 and insert
‘to make an application to the
court to exercise its jurisdiction under section
21A.’.
No. 52,
in
schedule 6, page 116, line 33, after
‘court’, insert ‘to exercise its
jurisdiction’.—[Ms
Winterton.]
‘Part
11A
‘serious
medical
treatment
Provision of second medical opinions161 (1) This
paragraph applies to a person (P) who is deprived of liberty in
accordance with this schedule if an NHS body is proposing to provide,
or secure the provision of, serious medical treatment within section
37(6) to him.
(2) P shall not
be given the treatment unless a registered medical practitioner (other
than the medical practitioner in charge of the care of the patient) has
certified in writing that the patient is not capable of understanding
the nature, purpose and likely effects of that treatment but that it is
in the best interests of the patient in accordance with this Act that
the treatment be given.
(3)
Before giving a certificate under sub-paragraph (b) the registered
medical practitioner concerned shall consult two other persons who have
been professionally concerned with the patient’s medical
treatment, and of those persons one shall be a nurse and the other
shall be neither a nurse nor a registered medical
practitioner.’.
Although
it comes late in the day in the consideration of the Bill, this is a
very important amendment, and I mean that seriously. I know that Labour
Members have their minds on other matters, but it merits some
time.
Angela
Browning:
I am grateful. The amendment is about the
provision for a second medical opinion on the treatment of serious
medical conditions. I think it would be helpful if I began by
clarifying what we mean by serious medical treatment. In the context of
the relevant group of patients, we obviously think of electroconvulsive
therapy. We discussed ECT earlier in the Committee, and it is a subject
that immediately alerts people to the need for safeguards, but the term
also includes major surgery, such as open heart surgery; certain types
of chemotherapy or cancer surgery; major amputations; treatments that
will result in permanent loss of hearing or sight; the withholding
or withdrawing of certain types of treatment, and abortion or caesarean
section, although not termination of
pregnancy.
Those are
all serious procedures, and one would hope that anybody detained under
the Mental Capacity Act would also be provided with the right to a
second opinion when any such procedure was being considered. Within the
context of that Act there is very small group of people who are
befriended and have support in decision making on those matters. That
responsibility often rests with relatives or carers, but I believe that
the vast majority of those patients will find that they are severely
disadvantaged because they come within the scope of the Mental Capacity
Act and that Act lacks the safeguard of a right to second opinion. I
believe that they should have a right to a second medical opinion on
such serious medical
treatments.
Those
treatments, including medication and ECT, should be approved by an
independent clinician through a second-opinion procedure. Under the
Mental Health Act 1983 there is a statutory second medical opinion
procedure for medication beyond three months and for ECT, and it seems
iniquitous that the same safeguards should not be given to people
treated under the Bournewood provisions. I find it hard to believe that
the Minister can justify that group of people not receiving the same
protections.
The
second-opinion doctor should be a specialist in the field of medicine
proposed. I know that the Government believe that that is unnecessary,
as the person’s representative or an IMHA advocate will be able
to request a second opinion on serious medical treatment if they
consider it necessary, but I do not think that that gives the surety
that such people will be knowledgeable enough in that area of medicine
to know when a second opinion should be sought. Whether they go out of
their way to seek that second opinion will be pretty hit and miss if it
is not in the Bill. They might not have the skills to recognise when a
second opinion is needed.
We are considering some serious
inequalities between a group of people treated under the Bournewood
rules and the Mental Capacity Act and those subject both to the Mental
Health Act and to what is sometimes normal medical practice in a
serious situation. I hope that the Government will be amenable to
considering those groups of people again. Before the Minister jumps up
or the hon. Member for Rhondda asks me if I have costed my proposal,
let me say that I do not think that there will be huge resource
implications, but in the interests of the patient without the right to
a second opinion—and of the medical staff taking responsibility
for them in complex and serious situations—I ask the Minister
seriously to consider accepting the
amendment.
Mr.
Boswell:
I echo my hon. Friend’s remarks. These are
serious matters in substance, and there are concerns about anomalies
between the treatment of Mental Capacity Act or Bournewood patients and
those detained under the Mental Health Act. I understand that it may
not be possible to produce an identity of treatment, but I am sure that
we all want safeguards in
order to get as near to that as we can. I should like to add two points
to the mix for the Minister to
consider.
The
first—I am not sure whether something was said about it while I
was detained outside the Committee this morning—is the question
of the status under the Human Rights Act 1998 of any resident of an
independent care home. It is a matter of some concern in the wider
context whether the protections of that Act are available as they would
be to a resident of a public
hospital.
The
second point, which has only recently come to my attention—I am
worried that another interpretation may even be possible—arises
from the fact that the Government are considering corporate
manslaughter legislation. One would like to feel that the safeguards of
such legislation will be available to patients equally, whether they
are detained under the Mental Health Act or the Mental Capacity
Act—that is one test—and whether they are resident in a
private sector care home or hospital, or in public provision.
Nobody is saying that we can
produce an ideal and perfect solution, but it is important to reduce
the anomalies to a bare minimum. It is also important to remember that
such matters involve extremely serious decisions—by definition,
life-or-death and related important decisions—and we owe it to
those vulnerable people to ensure that they are treated properly and
given all the rights available to their counterparts under the
law.
Ms
Winterton:
I hope that I shall be able to give some
reassurance. I understand the desire to ensure that all the proper
safeguards are in place, but a deprivation of liberty authorisation
deals only with the deprivation of liberty. It does not authorise any
course of treatment. The provision of treatment to a person who lacks
capacity to consent must be in accordance with the arrangements and
safeguards in the Mental Capacity Act. The authorisation is entirely
different; it is simply about the deprivation of
liberty.
Where the
primary reason for the deprivation of liberty is to allow treatment to
take place, the benefits of treatment would be considered as part of
the best interests assessment. That does not replace but is in addition
to the requirement to comply with the Mental Capacity Act. We are
talking about two entirely different things: deprivation of liberty and
the provision of medical treatment, which reverts back to the Mental
Capacity Act. For that reason, I urge the hon. Lady to withdraw the
amendment.
Angela
Browning:
Will the Minister clarify the position regarding
a second medical opinion being sought when serious medical treatment is
being considered?
Ms
Winterton:
If a second medical opinion is required under
the Mental Capacity Act, the requirement would come into effect at that
time. However, that is to do with treatment issues under the Mental
Capacity Act. Under the Mental Health Act, which is entirely different,
a second medical opinion is sought, first, before admission to hospital
and, secondly, if there is a compulsory treatment order concerning,
say, medication. Treatment under the Mental Health Act is an entirely
different
issue. The Mental Capacity Act kicks in, as it were, in relation to
treatment, but the schedule is about the deprivation of liberty that
arises from Bournewood. The authorisation for such a deprivation is
different—it does not bring about
treatment.
Mr.
Boswell:
I think that the Minister is helping us. As I see
it, the measure will effectively establish a defence for a clinician
against an accusation of depriving a person of their liberty under
Bournewood terms; it is about determining whether they have committed
an offence by detaining somebody against their will, which is
important.
The
Minister then said that all of the safeguards available under the
Mental Capacity Act will continue in relation to treatment, which I
understand. However, if the distinction that she is making is
complicated and only just intelligible to the Committee, it is
important that clinicians are properly trained on the interaction of
the two provisions and that their clinical decisions are carefully
recorded in terms of what powers they are using and when. In a real
world situation, the decision to detain and the decision to treat are
not quite as discrete as they appear in the tidy minds of the
draftsmen; they might be consecutive or contemporaneous.
Having spent some time briefing
people on how the Mental Capacity Act works, I can see that there will
be serious difficulties in explaining even to sophisticated clinicians
exactly what the critical path of decision making would be. That is not
to disagree with the Minister, because she has made a fair distinction.
The distinction, however, needs to be conveyed in simple but
sufficiently comprehensive terms to those who will be making the
clinical decisions.
Ms
Winterton:
I certainly take on board the fact that we need
to communicate simply and clearly. The hon. Gentleman referred to
clinicians, but they might not be the people who decide on the
deprivation of liberty. The measure is most likely to be used in
respect of someone in a care home; it is not about medical treatment.
We need to be clear that we are not necessarily talking about decisions
that would be made by clinicians. With that, I hope that the hon. Lady
withdraws the amendment.
Angela
Browning:
I have to say to the Minister that I would like
to go away and study the matter and to come back on Thursday, but I do
not have such an opportunity. I will go away and study and come back on
Report because I am not totally convinced about the Minister praying in
aid the Mental Capacity Act and the best interests provisions. I am not
clear whether she is relying on the best interests measure in that Act
to determine the issue. If that is the case, I have ongoing
reservations. I think that the principle of a right to a second opinion
should apply, whether or not best interests determine the decision on
serious treatment. However, I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Question
proposed, That this schedule, as amended, be the Sixth schedule to
the Bill.
5.30
pm
Angela
Browning:
I want to speak to schedule 6 because it
is the principal part of the Bill that involves the Bournewood
determination and the way in which the Minister intends to put it into
legislation. In the debate on the amendments, I flagged up a very clear
differentiation in treatment between people who are detained under the
Mental Health Act and those detained under the Mental Capacity Act.
That is not to say that I withdraw my support for the Minister in
enshrining the Bournewood outcomes into the Mental Capacity Act rather
than the Mental Health Act. We are all agreed on that, but as I said at
the beginning, we need to get this right. The Minister’s
rejection of some of the amendments tabled in this Committee and in the
other place was clearly based on resource implications. We all
understand that for the Government, those implications are material and
have to be taken into account.
However, when
the Minister considers how to implement the schedule I should like her
to look again at the advice that she herself issued when the Bournewood
judgment was published. The Department immediately sent out interim
guidelines to PCTs, social services departments and so on. In that
advice, the Minister flagged up something that I have been alluding to
in our discussions of the amendments to schedule 6. We can see the
differentiation very clearly. In the guidelines, the Minister alluded
to the fact that there was a choice between detaining people under the
Mental Health Act, which was all that the Government had at the time,
or detaining people but not under the Mental Health Act. She alerted
professionals in the field to the fact that
a significant increase in the use of the
Mental Health Act will inevitably put considerable further pressure on
local authority approved social workers, the availability of second
opinion appointed doctors
(SOADs)”—
whom we
discussed this
morning—
“and on
the operation of Mental Health Review Tribunals
(MHRT).”
I must say to
the Minister that, when it comes to getting the response to the
Bournewood judgment right and enshrining it in statute, I still have
reservations that her concerns about resources and funding are
influencing her to reject amendments that have been tabled not only in
this Committee but in another place. I have no doubt that we will
return to those on Report and in another
place.
Question put
and agreed
to.
Schedule 6,
as amended, agreed
to.
The
Chairman:
I must make an announcement. Hon. Members are
unquestionably sending text messages or responding to them. The
Chairman’s Panel has specifically disapproved of such a
practice. Therefore, I am appealing to all hon. Members on their honour
to desist forthwith. If there is a need to send or respond to a text
message, it can always be done outside the Room and outside my
sight.
Schedule 7
agreed to.
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