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Baroness Ashton of Upholland: I am grateful to the noble Earl, Lord Howe, for raising the issue of the interface between the Bill and the Mental Health Act 1983, and also to the noble Lord, Lord Goodhart, for reading precisely the same extract that I had intended to read out from the report of the Joint Committee on Human Rights.
In response to that, having only had that report for 24 hours, I am not in a position to say precisely what we will do, but I shall look carefully at the committee's recommendations. In a sense, we are almost pre-empting subsequent groups of amendments, which examine the issue of the Bournewood gap or "chasm", as it was referred to by a noble Lord during Second Reading. I am also conscious of the time, regarding the subsequent groups. Perhaps I may place on record again that we are looking at the recommendations of the Joint Committee on Human Rights and endorse the extract read out by the noble Lord, Lord Goodhart, about its concerns and the reassurance that it believes has been given by the Government around the issues of restraint and deprivation of liberty.
I will read with great care the detailed set of issues raised by the noble Earl, but I wish to deal with the principle matter, as I saw it, regarding whether the Mental Capacity Bill trumps the Mental Health Act. The short answer is no, it does not. I shall explore that a little more and go some way towards addressing the concerns without straying too much into the issues of the Bournewood gap.
The Mental Health Act 1983 provides the power for patients with a mental disorder to be detained when it is necessary for their own interests or the protection of others. Once detained, they can be treated for that
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mental disorder without their consent, subject to various safeguards. Clauses 5 and 6, in contrast, provide a defence, as we have discussed, for acts in connection with care or treatment which would otherwise be unlawful. Most medical interventions would be caught by the tort of battery, if undertaken without consent. Acts which involve restraint are covered by the Clause 5 protection if the strict criteria in Clause 6 are met.
Clause 6(4) defines restraint as including a restriction of "liberty of movement". However, the Clause 5 defence would not apply to an act that deprived a person of his liberty, for the purposes of Article 5 of the European Convention of Human Rights. Nothing in Clause 5 or 6 allows anyone to be detained. Therefore, there is no question of these clauses trumping the Mental Health Act in such cases.
I wish to say a little about Bournewood to complete my answer to that specific point. We recognise that in the light of the Bournewood judgment there is a group of patients who have not been detained in the past under the Mental Health Act and who do not need to be subject to that Act, but who must now be considered to be deprived of their liberty and will, therefore, fall outside the scope of Clauses 5 and 6. As the noble Earl knows, and as we shall discuss, we are looking to bring forward proposals for new procedural safeguards for that group and to provide an appropriate legal basis for their care and treatment.
I hope that goes some way to tackling that interface question. Combined with my commitment to look at the issues raised by the Joint Committee on Human Rights and to follow up on further points made by the noble Earl, Lord Howe, I hope he feels able, at this stage at least, to allow Clause 5 to stand part.
Earl Howe: I am grateful to the noble Lord, Lord Goodhart, for his remarks, and also to the Minister whose reply I found extremely helpful. As she recognised, the issues I addressed were only tangential to the Bournewood issue because they focus on non-compliant individuals rather than compliant ones. However, she is right that there is perhaps a double-interface here with the next group of amendments. I am grateful that she will give further consideration to the points I have raised and in the mean time I do not propose to obstruct the passage of the clause.
Clause 6 [Section 5 acts: limitations]:
Lord Carter moved Amendment No. 23:
Page 4, line 15, after second "is" insert ", at that time and in relation to the circumstances of that time,"
The noble Lord said: This amendment and those grouped with it—Amendments Nos. 24 to 28, 53, 54, 78 and 79—all have my name on them and are to deal with the Bournewood gap. I will do my best to be brief, but it is a big subject.
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During the progress of the Bournewood case through the English courts in the late 1990s, the governing evidence included estimations of the numbers potentially affected by the lack of safeguards for people lacking capacity who were given psychiatric treatment without their consent and whose personal liberties were put in question. Figures given during a hearing in 1998—they are likely to be lower now—were drawn from information provided by the Mental Health Act Commission and the Department of Health. If in-patients who lacked capacity and who were treated informally were brought within the provisions of the Mental Health Act, this evidence stated that an additional 22,000 people had come under formal statutory provision. There are 14,000 patients detained under the Mental Health Act on any one day. The statistics speak for themselves.
Understandably, the driving force in the Government's case was to contain the burden on hospital administration by denying, as they did, statutory safeguards in the Mental Health Act to such patients. It was accepted by all concerned that placing Bournewood patients under the formal provisions of the current Mental Health Act was not the only or best means of ensuring that important safeguards were extended to them. The Government recognised that a different and more appropriate set of safeguards would meet the requirements of the European Convention when they drafted the 2002 version of the draft Mental Health Bill. That Bill included a special part containing a detailed safeguard for people lacking mental capacity. These provisions were in fact cited by the European Court of Human Rights in the course of the Bournewood judgment, with a clear inference that they were effective proposals for legislation.
As we know, these provisions have been left out of the 2004 draft Mental Health Bill, and the Government have subsequently completed on a different provision within this Bill for independent consultation on certain important decisions affecting changes in accommodation for a minority of people who lack capacity—that is, the independent consultee. These provisions have been the subject of extensive debate, and the Government no longer argue that the independent consultee provision meets the case for safeguards against unlawful detention for medical treatment. This is interesting. I will come to this point later about whether it is possible to do something about Bournewood in this Bill, but in the draft mental health legislation there were provisions which the European Court said were acceptable if they were brought into law.
I am afraid the Government do not have the luxury of time to delay on this matter. The judgments have authoritatively stated a range of safeguards that should apply. They are living law, under which numerous applications will start to flow on behalf of those whose relatives and representatives can access the legal process. As we know, the Mental Capacity Bill as it is presently drafted is not consistent with the judgment in Bournewood. If the Bill becomes law without amendment, it will automatically become open to challenge.
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In Clause 6, the Bill allows for the proportionate use of force and the restriction of liberty to prevent harm to a person who lacks capacity. This amounts to a bare statement of the current common law doctrine of necessity. The European Court of Human Rights explicitly rejected the legality of relying on the doctrine of necessity. There are no safeguards attaching to the provision as it appears in the Bill. Those providing and receiving care under restraint, restriction of liberty or force must continue to rely on common law decisions, and the courts have already spoken.
We know that the Department of Health has issued guidance on the matter, and I believe that it has already met a certain amount of criticism. It relates entirely to detention. It makes the point that the courts stated that deprivation of liberty must be considered in relation to a particular case, taking into account the type, duration, effects and manner of implementation. The guidance states that the distinction between the deprivation of and restriction on liberty is merely one of degree or intensity and not one of nature or substance.
In clinical practice, we know that patients are commonly given medical treatment while incapacitous but compliant; for example, prior to Bournewood, patients who were either in a home or admitted to hospital informally, who lacked capacity but who were compliant, who then required a course of electro-convulsive therapy (ECT) would be detained under the Mental Health Act. This in turn would require an independent second medical opinion under Section 58 of that Act to confirm the need for the treatment, in addition to giving the patient or relatives the right of appeal. Since Bournewood, such cases are treated under common law on the doctrine of the patients' best interests.
As I understand the position, the Mental Capacity Bill would not change the situation. Furthermore, proposals in the draft Mental Health Bill, which we are now considering in the Joint Select Committee, make it clear that a new Mental Health Act can be used only if there is no other lawful way to give the treatment. There continue to be real concerns about the lack of statutory second medical opinions related to specified treatment or groups of treatments. This role is different from that of advocate or independent consultee, and it relates to the medical need for the medical intervention.
I have a few final word on costs, which is the major problem for the Government. I understand and sympathise, as there could be a substantial resource implication. It occurred to me that we should be looking at the marginal costs. Many of the patients will already have costs attached to them, and it would be wrong to double-count the costs by including in the costs of Bournewood the costs which already apply.
Concerns about the costs of introducing procedural safeguards for Bournewood patients have centred on comparisons made with Mental Health Act procedures at the time of the House of Lords appeal in 1998. This is
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no longer the only or the best base of comparison. The financial costs of safeguards may exceed, equal or be outweighed by the benefits. Such analyses are unavoidable at the margins—that is, as between the alternative systems of safeguards—but the need for safeguards is not negotiable. There must be safeguards against the institutional unlawful detention of vulnerable people.
The costs will apply to the additional procedures for administration; the professional certification, assessment review and care planning; the giving of evidence to the Court of Protection; the wider range of bodies which will be liable to implement procedures; the possible increase in sectioned patients; and the Government's review on resourcing safeguards for people potentially affected by the Mental Health Bill. It is not at all clear what is the Government's latest view of the numbers of people who may be involved. A figure of up to 50,000 has been mentioned.
The impact of the procedures will be reduced by applying the current good practice in health and social care; by social services reducing the weight given to risk in assessments in favour of retaining more choice for service users; and controlling the number of people who are placed under conditions of detention. The costs of unlawful or unregulated detention can be high.
I sum up the problem as I see it and the routes the Government might take. I have already said that there is an example in the draft Mental Health Bill that was produced in 2002. Those provisions met the requirements of the European Court, and I ask the Minister to consider that. She need not reply to me today, but perhaps she will reflect on it to see whether there might be a way forward. There appear to be three possibilities for the Government. The first is the suggestion I made at Second Reading, which is to put in the Bill the criteria that will deal with this and then to take order-making powers to implement the detail when the time comes and when the Government have completed their consultation and calculations. I understand that my noble friend has had some discussions about this and it might not be possible if the order-making power is much too wide and if the criteria cannot be specified. But, of course, the criteria are in these amendments and could be teased out of them.
The other possibility is a small Bill, perhaps in the autumn when there is time, or the new mental health Act, which might not be available until 2007. If the Government do not deal with Bournewood in this Bill, after it receives Royal Assent and becomes law, which I am sure it will in the spring, perhaps in March, it will not be available in all its component parts until 2007. We will have the Mental Health Act 1983, which we know does not meet Bournewood, the Mental Capacity Act 2005, which, as drafted, does not meet Bournewood and which will not be fully operational until 2007, and the chance of a new mental health Act
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in 2007. It is a real problem for the Government. I do not have any solutions; I can only describe the problem. I beg to move.
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