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Lord Carter: I am grateful to the Minister for an extremely full explanation. Obviously, I shall want to read it and then consider what to do.
The Minister remarked that she wanted the courts in certain areas—I believe she mentioned sterilisation and organ donation—to continue to make the law under the common law. I was struck when she said that by the quotation I gave at Second Reading from the noble and learned Lord, Lord Browne-Wilkinson, on the Bland judgment:
"I have no doubt that it is for Parliament, not the courts, to decide the broader issues which this case raises . . . it seems to me imperative that the moral, social and legal issues raised by this case should be considered by Parliament".—[Official Report, 10/1/05; col. 45.]
It was put in even stronger terms by the noble and learned Lord, Lord Mustill.
Baroness Ashton of Upholland: I am grateful to my noble friend. I referred to cases of artificial nutrition and hydration in areas concerning a vegetative state, and to sterilisation. I did not say organ donation. In fact, I said the opposite: that I did not think that those cases should always end up in the courts. I would maintain that what was meant by the remarks of the judge in that particular context is met by the Bill.
Lord Carter: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 21 and 22 not moved.]
On Question, Whether Clause 5 shall stand part of the Bill?
Earl Howe: I should like to spend a brief time on this Question to raise what I consider to be quite a major matter bearing upon the clause.
Clauses 5 and 6 provide powers to restrain incapacitated patients provided that such restraining actions fulfil certain conditions, which I shall not
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enumerate. It is therefore clear that the Bill can be used as authority to override physical non-compliance and objections to treatment by incapacitated patients.
Under present law, outside of Mental Health Act powers, authority for imposing treatment upon non-compliant incapacitated patients may be had under common law principles of necessity. The Bill appears to extend such powers of restraint to allow detention in hospital. Here, it comes into contention with the existing statutory powers of the Mental Health Act 1983, and how the two legislative structures are to co-exist needs to be determined.
Clause 28 provides the explicit link with the 1983 Act. Without reading out Clause 28, several things become apparent from it. Where an incapacitated patient is detained under a section of the 1983 Act to which Part IV of that Act applies, the powers and safeguards provided by the Act in respect of the treatment of their classified mental disorder may not be overridden by any power provided by the Mental Capacity Bill. But the Bill may be used as the authority to provide treatment for physical disorders or for mental disorders outside those classified in the Mental Health Act detention documentation, the exception being neurosurgery, which is covered by Section 57 of the 1983 Act.
Where an incapacitated patient is subject to a section of the 1983 Act to which Part IV of that Act does not apply, the powers of restraint in this Bill must be relied upon as the authority to provide treatment for mental or physical disorders.
In so far as the Bill only codifies common law justifications for restraint and coercive treatment, the overall effect of it as set out in Clause 28 is similar to the current position in law. However, as the Bill's powers may also extend to authorising detention in hospital and similar deprivation of liberty, there would appear to be contention between the Bill and the 1983 Act in relation to what authority may be appropriately used or available for extended deprivation of liberty that may amount to detention.
The Bill is explicit over the relation between its powers and those of the 1983 Act only where a patient is already subject to the treatment powers of the 1983 Act when treatment is proposed. As such, the Bill fails to indicate how medical professionals are to choose between the two statutory frameworks where a mentally incapacitated patient is subject to neither the Mental Capacity Bill nor the Mental Health Act 1983 when treatment is proposed. The problem is, therefore, to determine how to identify the circumstances in which each statutory framework would be most appropriate.
The criteria for detention under the 1983 Act are relatively more exacting than those for the Mental Capacity Bill. For the former, detention must be justifiable as necessary for assessment or treatment and so on; whereas for the latter anyone who lacks mental capacity to make decisions is a qualifying patient for the application of powers.
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Powers of treatment are also subject to stricter conditions in the 1983 Act than under the Bill. It might be assumed generally, therefore, that the Bill as a codification of the common law will always present the less restrictive option than formal detention under the Mental Health Act.
Under Clause 5 the range of interventions that can be described as care and treatment, and which might amount to deprivation of liberty, extends from the most commonplace actions to serious psychiatric interventions. This makes it difficult to see how a solution to the problem of the relationship between the Bill and the 1983 Act might fall to a question of which treatments might be reserved to one statutory framework or the other. If we were to try to exclude some types of intervention from the scope of the Bill, we would find that the equivalent of common law powers were no longer sufficient authority to give life-saving electro-convulsive therapy, for example, without valid consent, or to administer even routine and relatively non-invasive courses of psychotropic medication to incapacitated patients. This would be likely to increase the use of formal detention in hospitals where the only justification for such detention would be the imposition of treatment that could previously be given on an outpatient or community basis.
At present the Bill appears to trump the 1983 Act as the route for legal authority to treat any patient who is incapacitated by their illness, whereas the Mental Health Act will remain the only option for coercive treatment of mental health patients who retain mental capacity to make decisions. I hope that I am correct in saying that. That raises two important points. Clauses 5 and 6 appear to stretch the common law and go beyond the 1983 Act powers. One has to question whether the Bill as drafted includes sufficient procedural safeguards such as review and appeal: that is, safeguards against misuse of the powers.
Perhaps I may ask the Minister this question. If the effect of Clauses 5 and 6 are to be such that an incapacitated patient may be detained under its powers, when, if ever, might it still be appropriate to use the Mental Health Act for such a patient? Is a distinction to be made between compliant and non-compliant patients and, if so, what is it that the patient should be compliant or non-compliant with that makes that distinction?
Baroness Masham of Ilton: Will other supportive accommodation include prisons and detention centres? I have today been to the prison group and we have heard of the suicides in prison and the enormous number of mentally ill people who are detained in prison. The suicide rate of women is appalling. Will the Bill include prisons?
Lord Goodhart: I draw the Committee's attention to the report of the Joint Committee on Human Rights published yesterday. In discussing this issue, paragraph 4.8 states:
"The Government states that the Bill's provisions about restraint 'do not permit deprivations of liberty within the meaning of Article 5 ECHR. Restraint is defined as including restriction of
- liberty. The Government has never intended this to include actions which would amount to a deprivation of liberty for Article 5 purposes'. This makes clear that the power to restrain is not intended to be interpreted as authorising deprivation of liberty and therefore engaging Article 5".
"The Government's response meets our substantive concerns in relation to involuntary placement. This should be made clear on the face of the Bill, bearing in mind that what is at stake is the liberty of the person. We therefore invite the Government to consider amending the Bill to make clear, for the avoidance of doubt, that "restraint" in the Act does not include deprivations of liberty".
Therefore, while what the Government has said goes some way to meeting the concerns that have been rightly and properly expressed by the noble Earl, Lord Howe, the Joint Committee felt, again rightly, that it would be desirable for the Government to put on the face of the Bill that "restraint" does not include a deprivation of liberty. That would go some way to solving this problem, because it is certainly not obvious on the face of the Bill, as it now stands, that Clause 5 could not apply to a deprivation of liberty.
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