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We do not think it right for the Act to force clinicians to discharge such patients and wait for some of them inevitably to decide to discontinue
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I also listened with great interest to the comments about the research published by Professor George Szmukler, dean of the Institute of Psychiatry at King’s College, London. The noble Baroness, Lady Murphy, was right to point out that the research was into capacity rather than the terms of the amendment before us. The question is whether more or fewer people would be detained under a capacity or impaired decision-making test and whether there will then be a gap. Obviously none of us can forecast exactly what the effect will be, but we think that the intention behind the amendment is that some people who would be covered now may be excluded; and that is probably the most likely outcome. It may well be that it concerns only a small number of people, but I do not believe that the proponents of the amendment are in a position to reassure us that their approach would not lead to an unacceptable gap.
I agree with the noble Earl, Lord Howe, that detention should be a last resort, but that is the whole purpose of the 1983 legislation and this Bill. It remains a fundamental tenet of our philosophy. But I would ask him and other noble Lords how it promotes a person’s autonomy if, because they cannot be treated, they seriously harm or even kill themselves or commit a crime they would never otherwise have carried out? An Act based on need and risk is not about intervening to deny people autonomy or to strip them of their rights, rather it is to intervene to help them to recover from serious mental disorder or learn to cope with it better so that they can enjoy that autonomy and be able to exercise those rights.
The noble Lord, Lord Owen, and other noble Lords pointed out that the Scottish Parliament has taken a different view. It is perfectly entitled to do so. I agree that part of the blessing of devolution is that we can see how different approaches operate in practice, and in time approaches in practice can be modified as a result. But that does not mean that Scotland will always be right, and clearly the Government in Westminster must reserve the right to make their own judgments. It is interesting to read Professor Richardson’s original review of the Mental Health Act. She made it clear that the review committee was aware of powerfully held views on both sides which the report stated are “effectively irreconcilable”. The report states:
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“We believe they reflect a difference in fundamental philosophy which can only be resolved by according preference to one approach over the other. We have set out the alternative views as best we can and invite politicians to make the moral choice between them”.
I would guess that that is what we are going to do this afternoon. I am not going to debate with the noble Baroness the proportion of psychiatrists who feel one way or the other. However, to say that only a small handful of psychiatrists support the Government’s proposals may be something of an underestimate. But what I do think the Richardson report shows is that there is a fundamental difference and that those views are powerfully held on both sides.
5 pm
Let me turn to the question of discrimination which, in a sense, is the test that the noble Earl, Lord Howe, set me at the beginning of this examination. The Government believe that it is right to bring people under formal powers even though they are legally competent to refuse treatment. We believe it is possible to distinguish between treatments for physical disorder and mental disorder and that we ought to do so. Far more often in cases of mental disorder, one effect of the treatment may be to change the patient’s views about the value of the treatment. For example, as their disorder is treated they may become less sceptical about the need for or benefits of treatment. As I have said, people’s capacity fluctuates over time. A key tenet of the Government’s proposals in the Bill is to avoid creating a new class of revolving-door patients whose treatment stops each time they regain capacity, only to start anew when they deteriorate and lose capacity again.
I understand the question of stigma and discrimination. While I by no means claim to be an expert in the field of mental health, noble Lords will know of my association with a number of mental health organisations and my long-standing concern about stigma. But I think “discrimination” is a strange word to use if it means non-intervention in relation to people at risk of suicide or of causing harm to others. Is that really discrimination? I doubt the general public would think so.
The noble Earl, Lord Howe, went on to say that one might be able to distinguish a patient’s potential to do harm to others from their potential to do harm to themselves. He suggested, as did the right reverend Prelate at Second Reading, that a case of a person potentially doing harm to others should be dealt with in the criminal justice system. As a lay person I can see that, apart from the clear difficulties involved in a clinician making such judgments, there is also a problem in saying that we should wait until someone has fallen into the criminal justice system—and maybe caused harm to others—before they can be appropriately treated.
Earl Howe: Perhaps I may invite the Minister to consider this example. Why should a person with mental health problems who knows what he is doing be detained because of a potential risk of harm to others more readily than, say, someone who is
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Lord Hunt of Kings Heath: Noble Lords could put forward any number of hypothetical cases, but within the context of mental health legislation we are concerned that a number of people would fall through the net if the amendment were passed by the House. That is why we do not accept the amendment put forward by the noble Earl. Surely he would accept in the public interest that there must be in mental health legislation the safeguard that I have proposed.
Earl Howe: In that case, I wonder whether we could get back to the point ably made by the noble Lord, Lord Owen, about mental capacity. The Government seem to be leading themselves up a path where they will find that the law in one area is inconsistent with the law in another. A patient with schizophrenia who is not objecting to his or her treatment may be detained under the Bournewood provisions only if they lack capacity, but detained under the Mental Health Act irrespective of capacity. In other words, the test that is deemed important to deprive a person of his liberty under one law is irrelevant in deciding whether to do so under another law.
Lord Hunt of Kings Heath: In the context of this amendment, we are talking about a situation where if the test the noble Earl wishes to see placed on the statute book has to be undertaken—we are not talking about capacity here, but about a lower test—there can be instances where some people would not be allowed to be treated, and there could be serious risk of harm to them and, potentially, to members of the public.
This has been a splendid debate. I hope that at the very least I have explained the Government’s thinking. I hope the noble Earl, on reflection and on hearing the Government’s thinking, will consider his position.
Baroness Carnegy of Lour: I have a question for the Minister, following what has been said about the comparison between the Scottish Act, which I have in front of me, and the Bill. The Explanatory Note to Chapter 6 of the Bill, which is about cross-Border transfers, states:
It then explains what a transfer might be: someone would be moved from over the Border because he would be nearer his family when he was detained.
It may well be, as I see it, that a Scottish patient will have been admitted because his ability to make decisions about the provision of medical treatment is significantly impaired. That is one of the conditions that the doctors must fulfil before that person is
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After listening to this debate, it is clear to me that there is a major difference between the two sides of the Border. If the Minister cannot answer that question now, will he look into it? It seems that this will happen. I may be wrong, but I have been listening carefully, and the more I hear, the more the two pieces of legislation sound different—as will be the justice which people receive. That Scottish patient might be released in England, whereas in Scotland it was thought that he should be detained.
Lord Hunt of Kings Heath: Inspiration has confirmed what I suspected, but I will set this out in detail and write to the noble Baroness and copy it to the Library. If you are moving from one country to another, the laws of the new country must be applied, because that is the jurisdiction in which the person is now living. Devolution will inevitably lead to different approaches being adopted. That is one of the beauties of devolution. I thought that noble Lords opposite now agreed with devolution; perhaps I am wrong. There will inevitably be differences, and the law of the country the person is currently in must apply.
Baroness Carnegy of Lour: Will the Minister not continue to use the extraordinary argument that this is a glory of devolution? It is one of the disadvantages of devolution which we must be vigilant in trying to prevent. I look forward to receiving the noble Lord’s letter and reading exactly what the implications of the different ways of dealing with this very important matter on either side of the border will be for patients and the public.
Lord Hunt of Kings Heath: I was a Whip during the passage of the relevant Scottish Bill. I believe that Scottish and Welsh devolution have brought many advances. Of course, I shall set out the detailed criteria. I have given the noble Baroness what I believe is a general and broad interpretation.
Baroness Barker: I thank all Members of the Committee who participated in this illuminating debate. I ask the noble Baroness, Lady Murphy, to convey the Committee’s best wishes to the noble Lord, Lord Rix, whose contribution was missed. I also thank the noble Lord, Lord Owen, who enabled us to put the question into a wider legislative context. That was extremely helpful, as were the descriptions of the noble Baroness, Lady Murphy, and of my noble friend Lord Alderdice of what it is like to be a practitioner implementing such legislation and decision-making on a regular basis, sometimes in emergencies.
The noble Lord, Lord Hunt, said that one of the core purposes of the Bill was to enhance services. In their response to the joint scrutiny committee, the
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Lord Hunt of Kings Heath: No doubt we shall read in Hansard whether I said what I thought I did, but I thought I said that we were all concerned with improving services. The Bill before the Committee will provide a very effective framework in which we will continue to make the improvements to services that we have seen in the past few years.
Baroness Barker: I am happy to accept the noble Lord’s position but he must agree with his colleague in another place, the Minister, Rosie Winterton, who has said repeatedly that the Bill is about the circumstances in which people can be brought under compulsory treatment.
Lord Hunt of Kings Heath: I apologise to the Committee for bobbing up and down, but I must be clear. Of course, I do not disagree with my right honourable friend. I said that the Bill, when enacted, will provide a better framework for practitioners to deliver mental health services.
Baroness Barker: I accept that that is what the noble Lord believes but we are none the less dealing with the legislation in front of us. It is clear that the central issue concerns the conditions under which people can be subjected to compulsion. That is why Members on this side of the Committee looked carefully at issues of capacity and impaired decision-making and drew a distinction between them. It is why we looked at the condition of mental health patients and compared it to those who are subject to all other forms of healthcare treatment, as the noble Earl, Lord Howe, made clear. It is why we thought very carefully about practitioners in the mental health field and the parallels and distinctions between them and people in other parts of the medical profession who have to follow the doctrine of “first do no harm”, even when they may administer medication which they know to be harmful. However, the patients of all other medical practitioners have a right of refusal; these patients do not.
I remind the Committee that the provisions in the amendment relate only to people who would be detained under Part II of the 1983 Act. We are not talking about people who would be detained under Part III—that is, those who have been through the criminal justice system and are at more risk.
I return to a point that I made earlier. I believe that the impact of the provisions in the amendment will be to force practitioners to concentrate and focus on the ability of people to make decisions about care and treatment. That is something which they must do within the context of the implementation of the Mental Capacity Act from April of next year. I believe that the provisions in this amendment are of a lower standard than the capacity test and thus that we are giving practitioners a greater scope to make those much more difficult judgments that they must make about people whose decision-making ability is impaired because of mental disorder.
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The Minister indicated in his response that he disagrees with us on a fundamental point, which is where we believe that our provision would make services less threatening to patients. Therefore patients would be more likely to come forward to seek treatment—and at an earlier stage in their illness, before they become dangerous. The Minister does not agree that our measure actually has the interests of public safety and patients at heart. We believe that it does. It is of fundamental importance. I therefore wish to test the opinion of the Committee.
5.16 pm
On Question, Whether the said amendment (No. 6) shall be agreed to?
Their Lordships divided: Contents, 225; Not-Contents, 119.
Addington, L.
Alderdice, L.
Alton of Liverpool, L.
Anelay of St Johns, B.
Arran, E.
Astor of Hever, L.
Avebury, L.
Barker, B.
Beaumont of Whitley, L.
Bell, L.
Best, L.
Blaker, L.
Bledisloe, V.
Bonham-Carter of Yarnbury, B.
Bowness, L.
Bradshaw, L.
Bragg, L.
Bridgeman, V.
Brittan of Spennithorne, L.
Broers, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Bruce-Lockhart, L.
Burnett, L.
Campbell of Alloway, L.
Carlile of Berriew, L.
Carnegy of Lour, B.
Cavendish of Furness, L.
Chadlington, L.
Chidgey, L.
Clement-Jones, L.
Colville of Culross, V.
Colwyn, L.
Cope of Berkeley, L.
Cotter, L.
Courtown, E.
Craigavon, V.
Crickhowell, L.
Currie of Marylebone, L.
Darcy de Knayth, B.
De Mauley, L.
Dear, L.
Dholakia, L.
Dixon-Smith, L.
D'Souza, B.
Dundee, E.
Dykes, L.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Exeter, Bp.
Falkland, V.
Falkner of Margravine, B.
Ferrers, E.
Finlay of Llandaff, B.
Flather, B.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Fraser of Carmyllie, L.
Freeman, L.
Garden, L.
Gardner of Parkes, B.
Geddes, L.
Glentoran, L.
Goodhart, L.
Goodlad, L.
Greengross, B.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Hanningfield, L.
Harris of Richmond, B.
Hayhoe, L.
Henley, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Hooper, B.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Hurd of Westwell, L.
Hylton, L.
Inglewood, L.
James of Blackheath, L.
James of Holland Park, B.
Jay of Ewelme, L.
Jenkin of Roding, L.
Jones of Cheltenham, L.
Jopling, L.
Kalms, L.
Kilclooney, L.
Kimball, L.
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Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Laidlaw, L.
Laird, L.
Lang of Monkton, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Lindsay, E.
Linklater of Butterstone, B.
Listowel, E.
Lucas, L.
Luce, L.
Ludford, B.
Luke, L.
Lyell of Markyate, L.
McAlpine of West Green, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
MacLaurin of Knebworth, L.
Maclennan of Rogart, L.
Maddock, B.
Mar, C.
Mar and Kellie, E.
Marlesford, L.
Masham of Ilton, B.
Meacher, B.
Methuen, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Monson, L.
Montagu of Beaulieu, L.
Montrose, D.
Morris of Bolton, B.
Murphy, B.
Murton of Lindisfarne, L.
Naseby, L.
Neuberger, B.
Newby, L.
Nickson, L.
Noakes, B.
Northover, B.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Owen, L.
Palmer, L.
Palumbo, L.
Park of Monmouth, B.
Parkinson, L.
Patel, L.
Patel of Bradford, L.
Patten, L.
Patten of Barnes, L.
Perry of Southwark, B.
Pilkington of Oxenford, L.
Platt of Writtle, B.
Plumb, L.
Plummer of St. Marylebone, L.
Powell of Bayswater, L.
Quinton, L.
Ramsbotham, L.
Razzall, L.
Reay, L.
Redesdale, L.
Renton of Mount Harry, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Roper, L.
Russell-Johnston, L.
Saatchi, L.
St. John of Bletso, L.
St John of Fawsley, L.
Saltoun of Abernethy, Ly.
Sanderson of Bowden, L.
Sandwich, E.
Scott of Needham Market, B.
Seccombe, B. [Teller]
Selsdon, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Shephard of Northwold, B.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
Southwark, Bp.
Southwell and Nottingham, Bp.
Steel of Aikwood, L.
Steinberg, L.
Stern, B.
Stevens of Kirkwhelpington, L.
Stewartby, L.
Stoddart of Swindon, L.
Strathclyde, L.
Taylor of Holbeach, L.
Taylor of Warwick, L.
Tenby, V.
Teverson, L.
Thatcher, B.
Thomas of Gresford, L.
Thomas of Winchester, B.
Tonge, B.
Tope, L.
Tordoff, L.
Trenchard, V.
Trimble, L.
Tugendhat, L.
Tyler, L.
Verma, B.
Wakeham, L.
Wallace of Saltaire, L.
Walmsley, B.
Walton of Detchant, L.
Wedderburn of Charlton, L.
Wilkins, B.
Williams of Crosby, B.
Williamson of Horton, L.
Windlesham, L.
Winston, L.
Wolfson, L.
Worcester, Bp.
Young of Hornsey, B.
Acton, L.
Adams of Craigielea, B.
Adonis, L.
Ahmed, L.
Amos, B. [Lord President.]
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Billingham, B.
Bilston, L.
Borrie, L.
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Boyd of Duncansby, L.
Bradley, L.
Brennan, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Campbell-Savours, L.
Carter of Coles, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Crawley, B.
Cunningham of Felling, L.
David, B.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Donoughue, L.
Drayson, L.
Dubs, L.
Elder, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. [Lord Chancellor.]
Falkender, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Foulkes of Cumnock, L.
Fyfe of Fairfield, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haworth, L.
Henig, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jay of Paddington, B.
Jones, L.
Jones of Whitchurch, B.
King of West Bromwich, L.
Lea of Crondall, L.
Lipsey, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Maxton, L.
Mitchell, L.
Moonie, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
O'Neill of Clackmannan, L.
Parekh, L.
Pendry, L.
Prosser, B.
Quin, B.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Rooker, L.
Rosser, L.
Royall of Blaisdon, B.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Sheldon, L.
Simon, V.
Smith of Gilmorehill, B.
Soley, L.
Symons of Vernham Dean, B.
Tomlinson, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turner of Camden, B.
Uddin, B.
Wall of New Barnet, B.
Warner, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Whitaker, B.
Whitty, L.
Woolmer of Leeds, L.
Young of Norwood Green, L.
Resolved in the affirmative, and amendment agreed to accordingly.
Lord Grocott: I beg to move that the House do now resume.
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