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Baroness Barker: After that excellent exposition by the noble Lord, Lord Carter, there is not a great deal more that one would wish to say. But there are one or two points. I talked about the Bournewood chasm. That was as a result of work that we have been doing on the mental health scrutiny committee. The number of mental health patients who are, or could be, in this position is huge. The number of people detained in significant ways and at different times is far greater than has been suggested.
The second point is that a number of noble Lords talked about hospitalisation. I do not think that that is the right word to use because, if one thinks about this in detail, there are many people who lack capacity. Many elderly people are not in hospitals, but in care homes. Given their lack of capacity, they could equally be described as being in this gap.
That is why the noble Lord, Lord Carter, is right to talk about the Government's three options. He is also right that the Government do not have time. There are now many people who have not only looked at the European Court judgment but who also grapple with the Department of Health's confusing guidance on continuing care, and have done so for a long time. There is a groundswell of people who are beginning to see that this is potentially a route to addressing a question that has been left undecided by the Department of Health for far too long. It is in the Government's interest, apart from anything else, to come forward, not with a solution but, if I can characterise the speech of the noble Lord, Lord Carter, with a statement about what the vehicle for the solution will be.
The noble Lord, Lord Carter, was quite right that the Bill will not be enacted until 2007. There are real questions about when, if at all, the new mental health legislation will emerge. He is also right that this matter needs to be addressed. All things considered, and not least because it is clear that detention is taking place on a large scale that has hitherto been unrecognised, it is in the Government's best interest—I shall be an advocate for the Government tonight—to look at the three options outlined by the noble Lord, Lord Carter. I think that his suggestion of a small, stand-alone Bill in the autumn is the way. The sooner the Government arrive at that conclusion about that being the route, the better for all concerned.
Baroness Ashton of Upholland: I am grateful to my noble friend for raising that issue, but I was hoping that he would provide a solution. I am always pleased when the noble Baroness, Lady Barker, is working in our best interest too.
Perhaps I may take Members of the Committee through those issues reasonably briefly and explain where we are, which I hope will help them to understand the issues properly. For the benefit of any Member of
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the Committee who does not know about the "Bournewood" judgment, this was a judgment by the European Court of Human Rights that involved the case of a "Mr L", who was a compliant, incapacitated patient admitted for treatment to Bournewood hospital—hence, the word, "Bournewood"—following an acute episode of self-harm.
I shall not go through all the details, although if any Member of the Committee is interested, I can supply them. This judgment was deemed by the European Court of Human Rights to have unlawfully deprived "Mr L" of his liberty under Article 5 of the European Convention on Human Rights. We have said very clearly that we need to carry out a full consultation on that very complex case, which the Department of Health plans to launch as soon as possible. I shall keep Members of the Committee updated on that.
I recognise that the timing of the judgment and the consultation is not great. Many concerns have been expressed that we should take the opportunity of this Bill to take the powers necessary to deal with the Bournewood issue. I appreciate that my noble friend is trying to be helpful by casting much of the new clause in terms of a regulation-making power, so that not all the detail needs to be settled in advance of consultation. However, even those provisions would preclude the consultation necessary on certain fundamental issues.
As my noble friend has said, the approach is similar to the 2002 version of the draft Mental Health Bill. But where my noble friend is not quite right is that that, of course, addressed the Bournewood problem as we understood it at the time. It does not address particular issues that were raised by the judgment of the European Court of Human Rights, which are fundamentally about the procedures of admission and detention. In a sense, we cannot go back to the 2002 draft Mental Health Bill and look for solutions in that. We will have to explore much more thoroughly in our consultation what we need to do.
I could spend time going through the technical problems with my noble friend's amendment, but I know perfectly well why my noble friend has tabled this; that is, for us to have this initial discussion about those issues. One particular point that I would raise with my noble friend is that the amendments appear to establish a power for decision-makers to deprive mentally incapacitated people of their liberty through Clause 6. I want to be clear that Clause 6 is about restriction not deprivation of liberty. The powers ensure a person is not liable for criminal or civil proceedings as long as the proper procedures have been followed. But they do not provide a proper framework for deprivation of liberty.
To use classic examples, it applies to situations such as holding someone's hand when crossing a busy road if you know that the person has a habit of disregarding traffic, providing headgear to someone who bangs his head against the wall when getting distressed in a classroom and so on. It is not about an appropriate vehicle to establish a power to deprive liberty.
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Of course my noble friend has indicated some very detailed proposals in his amendments. At this point, we are not trying to say precisely which sort of cases would be covered. Noble Lords will not be surprised that I cannot indicate the numbers, which vary quite a lot depending on the interpretations that we need to think about from the European Court of Human Rights.
Before consulting widely, we cannot make an assumption that the same detailed procedures would be either appropriate or proportionate in all cases. As the noble Baroness, Lady Barker, said, we are talking about a range of different people, some of whom may be in care homes, perhaps suffering from dementia, through to those who find themselves in mental health establishments for very serious treatment. We need to think carefully about what we will do about that.
So the issues that we are seeking to resolve in our consultation are: first, identifying relevant cases where there is a deprivation of liberty. There is no clear legal definition that will resolve the issue. We shall have to consider carefully the facts of a range of potential situations. Secondly, as my noble friend said, we are determining the appropriate safeguards. We need to seek safeguards that will avoid an unnecessary increase in the number of people being detained under the Mental Health Act and which will be appropriate to people's circumstances.
We need to resolve, thirdly, the proper role of third parties—family, friends and advocates; and, fourthly, the strategies we need to prepare to implement the changes that we want to make. We cannot move as quickly as we would like on those areas, particularly on this Bill. I do not want to rush the consultation and, more importantly, the Department of Health does not want to, because these are significant matters.
As my noble friend said, I have raised the issue with the Delegated Powers and Regulatory Reform Committee. I sent a letter today to the noble Lord, Lord Dahrendorf, and I have had an informal discussion with him about whether we might be in a position to take a regulation-making power. Noble Lords have indicated the three options available to us.
I have to say that the power would be exceptionally broad: I simply leave that on the table. I recognise that it would also include Henry VIII powers, with which noble Lords are fully familiar. There is the issue of a free-standing piece of legislation, which is the area for which I felt there was greatest support. As my noble friend said, there is also the potential of the Mental Health Act.
I shall feed back comments to colleagues in the Department of Health: also the comments about the interim guidance that has been produced. There are copies in the Library should any Member wish to look at them. On the basis of what I have said about the process in which I am now engaged, and our desire to seek an appropriate speedy "yes", but having carried out the consultation properly, and having worked out
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precisely what the judgment is inviting us to do, I hope that my noble friend will feel able to withdraw his amendment.
Lord Carter: I am extremely grateful to the Minister for that reply. Obviously, I shall not take up the Committee's time now. However, I believe that in December 2004 there was a case that was also on the lines of HL v UK. If we are not careful there could be a large number of such cases. I understand that the
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Government are between a rock and a hard place, but I am not sure that they will not have to try to do something in the Bill, at least to hold their position, until they can bring forward a Bill, perhaps in the autumn. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 24 to 27 not moved.]
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