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The Bill as it stands extends to other professionals the role of responsible clinician for a wide range of decisions. The amendment applies simply to one. In particular, I would be very concerned about a
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Baroness Murphy: There is one occasion in the 1983 Act, in Section 141, where you can have the renewal of detention at the say-so only of two specially chosen doctors, appointed by the president of the Royal College of Psychiatrists. That is the renewal of detention of Members of Parliament. I find it very interesting that when they were considering this issue in 1982, Members of Parliament singled themselves out to have their renewal of detention by specially appointed doctors chosen by the president of the Royal College of Psychiatrists. Would that we were all so lucky.
In supporting this amendment, I want you to feel for a moment what a patient feels like after six months of detention. Remember that when you were admitted, it would have been a very frightening and difficult to remember experience. You would probably remember the GP, the police and the journey, but everything else would be a bit hazy. Now you have had six months of treatment, probably still have symptoms—not as terrifying as they were six months ago—but are feeling a bit better clinically. However, you may still feel very resentful about being detained. The symptoms are abating, but you are now more concerned about getting out, having somewhere to go and resuming life, getting back to where you started. You are frustrated that, just as you begin to feel a bit more normal, you are under threat of continuing detention. The clinical team has a much greater dilemma than when first faced with the overtly ill person. It is not an easy decision whether to continue with the compulsory treatment in detention. It is a matter of weighing up all those clinical symptoms and assessing compliance and likely co-operation with rehabilitation care plans. Many of us feel that that is when a second opinion is valuable. Determining whether a patient can be discharged requires careful handling of risks and benefits to others.
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The 2004 Bill was an improvement on the 1983 Act, as has already been noted, because the renewal was overseen by the tribunal, with access to a panel of experts. That safeguard has, sadly, been lost. The amendment provides an alternative, with a similar requirement for more than one medical opinion. The noble Baroness, Lady Meacher, pointed out that it is possible for a patient to be detained for up to a year or so on the say-so of a responsible clinician who is not a doctor—one nurse, one psychologist or one occupational therapist.
I ask the Minister and noble Lords whether they would be happy at the prospect of themselves personally,
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Although I would like team members to be consulted, I would like the responsible clinician to be a psychiatrist, and a second doctor to be involved, to give equivalent rights to someone who is being detained.
The Countess of Mar: I heartily endorse what previous speakers have said. I am sorry that I have intervened so late in the debates on this Bill, but circumstances have precluded me from taking part previously.
I was recently asked to intervene in the case of a lady who had been labelled by her local social services department as having Munchausen syndrome by proxy. She expressed severe concern about the safety and welfare of her children against threats that were later proven to be correct. But the social services department decided that she was paranoid and a danger to herself and other people. She was sectioned under Section 2 of the Mental Health Act. When that diagnosis was challenged, the psychiatrist, a locum at the Central Middlesex Hospital, changed the diagnosis to schizophrenia. I had known the lady for some time and—although I am not medically qualified, but have contact with psychiatrists through my other activities—was fortunate enough to find a psychiatrist who was prepared to examine this lady on a pro bono basis. He travelled all the way up from the west of England and found that there was nothing wrong with her, apart from the fact that she could perhaps be described as an overanxious mother. This lady was threatened with being forcibly medicated, the strong-arm boys were actually brought in and a court order had to be obtained to prevent that forcible medication. The situation was so Kafkaesque that one could not believe that it was happening in this day and age. But it did happen and, thank goodness, when the case came before the mental health tribunal, the woman was discharged with no labels attached to her name.
That was fortunate but she might not have had that benefit if someone who cared about her had not intervened. It is very important that suitably qualified people sit on those tribunals.
Baroness Finlay of Llandaff: This issue was put to me very simply by a psychiatrist when we were discussing some of the ongoing problems with patients. When somebody first presents and the acute crisis occurs, and several healthcare professionals have to be involved, it is pretty obvious that that person is very seriously
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If somebody is retained under compulsion because of a disturbance of his mind, it is absolutely crucial that after six months the diagnostic processes are gone through again. Medical training and the training of the psychiatrist incorporate complex diagnostic training. The other disciplines that will be able to be involved have not received that complex physical diagnostic training. Indeed, nurses may have trained purely in mental health—that is not to denigrate their skills, it is simply that they have come up through another path. It is terribly important that we remember that the subtlety of diagnosis on review may be much more difficult than the initial barn-door presentation.
Baroness Royall of Blaisdon: Amendment No. 8 concerns patients whose period of compulsory treatment under the Act has come up for renewal. A renewal requires a report to be submitted. The amendment first requires that the renewal report to the hospital managers includes a recommendation from two doctors that the patient continues to meet the conditions for compulsion.
Under existing legislation the renewal report is based on the recommendation of one professional, the patient’s responsible medical officer, who is the doctor in charge of the patient’s treatment. We believe that to require the recommendation of two doctors is unnecessary. Of course we recognise that renewal is not an easy process. Good practice requires an ongoing assessment of the needs of a patient and the input of a multi-disciplinary team together with the patient. That is reflected in the code of practice, and will be included in future editions. So the report submitted will be the result of a continued dialogue between several professionals and the patient.
We must remember that a renewal report also triggers the hospital managers’ consideration of whether a patient should be discharged. Hospital managers’ hearings can take account of evidence from all the professionals directly involved in the patient’s care; for example, his social worker and his named nurse. Relatives and carers are also invited to contribute and the patient can have representation. It is therefore not the case, nor shall it be, that a patient’s continuing compulsion is based on the views of one professional.
The amendment would also allow doctors to provide the recommendations in the renewal report. That undermines the policy that professionals should not be prevented from carrying out functions that they are competent to perform. To do so would not be in the best interests of patients and would not contribute to the modernised, flexible workforce that currently exists and with which we are trying to bring this legislation in line.
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All responsible clinicians will be highly skilled professionals and will provide the necessary rigour. Unlike responsible medical officers, responsible clinicians will be trained and approved for that specific role. The minimum approval criteria, including the competencies required, will be set out in directions. A draft of these has been made available to your Lordships for information. One of the competencies is the ability to identify the presence or absence of mental disorder and the severity of the disorder.
From this pool of skilled, trained and approved professionals, a patient’s responsible clinician will be selected because they have the skills and expertise that best meet the particular patient’s treatment needs. In many cases this will be a doctor, because a doctor’s skills will best meet the patient’s needs, but there will be cases where treatments which only a doctor can provide are not the most significant part of a patient’s care package. For example, in the case of a patient who is receiving mostly psychological intervention, the patient may be best served by a responsible clinician who is a psychologist.
A patient’s responsible clinician will have overall responsibility for their case. Not only will they be the clinician with the skills most appropriate to the patient’s needs, but they will be the professional with the most comprehensive knowledge of the patient’s current overall condition. It therefore makes sense for this person to provide the renewal report. It is not appropriate to require a doctor who is not the patient’s responsible clinician to draft the renewal report. This is inefficient and not in the best interests of patients.
The amendment would require the renewal report to include the reasons for recommending that the conditions for compulsion are met, whether there are alternatives to compulsion, and the reasons why these alternatives are inappropriate. As the Committee will be aware, the renewal report, which is a statutory form, already requires the responsible clinician to set out the alternatives to detention and why treatment cannot be provided without compulsion. The code of practice also requires the hospital manager to consider all evidence as to whether the conditions for compulsion under the Act are met. This includes a written report from the responsible clinician covering the patient’s care and treatment, his care plan and all risk assessments. The responsible clinician is required, under the Act, to consult one or more other professionals involved in the patient’s care before submitting the renewal report. A report of this consultation is also considered as part of the hospital managers’ hearing.
The arrangements in the Bill for considering whether a patient’s compulsion under the Act should be renewed are thorough, robust and sufficient to protect patients against continued compulsion, unless absolutely necessary to prevent them coming to harm, or harming others. I therefore urge the noble Lord to withdraw this amendment.
The Earl of Onslow: Did the noble Baroness alter a single word of her brief from what was written down for her before the debate started, or did she just
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Baroness Royall of Blaisdon: Indeed, in the House of Lords we have the most distinguished people available in many areas, including the very important area of mental health. I listened with care to exactly what noble Lords were saying and varied my brief. This Government have considered these issues carefully and I reflected what they believe. That does not mean that I was not listening with the utmost care to what noble Lords were saying, and taking what was said into consideration. We will continue to do so.
Baroness Masham of Ilton: If the patient does not agree with his or her treatment, do they have a right of appeal or the right to a second opinion from a qualified doctor? That is to say, do they have those rights now?
Baroness Royall of Blaisdon: I regret that I do not have that information. I will write to the noble Baroness and place a copy of my letter in the Library.
The Countess of Mar: The noble Baroness described the situation for a patient under ideal circumstances. In my experience—and I have had quite a lot to do with mental hospitals during my lifetime—this is the poor relation of the hospital service. Very rarely do you get a continuation of doctors, let alone nurses or supporting staff, on wards. What would happen in a case like the one I illustrated, where most of the staff could hardly speak English? A few could, but most could not. The consultant, although probably very good, was not an English national. What happens in those situations? It cannot be satisfactory when the full staff are not there, and there is no one to note continuity in the patient’s records or behaviour.
Lord Hylton: I speak as a complete layman in these matters, but in view of the strength and quality of the six speeches supporting the amendment, will the Government at least say that they will take this matter away to consider it further before the next stage?
Baroness Murphy: Before the Minister responds further, it may be helpful through the Committee to inform the noble Baroness, Lady Masham, that there is provision at several junctures during the detention for treatment, at which a patient will have a second opinion through a formal system involving appointed doctors under Clause 58. That, I think, responds to her concerns.
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Baroness Royall of Blaisdon: In response to the specific case raised by the noble Countess, and her fears, which I entirely understand, that a patient will not be looked after and listened to by one person throughout their care, that is one reason behind what the Government are doing: to ensure that the responsible clinician can take those decisions. That person will have been responsible for the patient throughout, will best know the person and will have their confidence.
The Countess of Mar: The point that I was making was that in fact they will not be responsible for the person throughout because of the state of staffing in the health service.
Baroness Royall of Blaisdon: I understand that that is the point that the noble Countess was making, but we are talking about best practice. We must ensure that best practice is adhered to; it cannot be written down in statute, but we must encourage it.
Lord Carlile of Berriew: I am grateful to those who have taken part in what has become an interesting and lively debate. I cannot aspire to the dash, style and pizzazz of the noble Earl, Lord Onslow, but, if he will allow me to say so, I may be slightly more gallant than him this afternoon in thanking the Minister for speaking in such detail in answer to the amendment. I listened to her every word with care and I must say that my conclusion is that the Government are approaching the issue with eye-watering complacency, which causes me deep regret. The noble Baroness has listened to a number of speakers in this debate, of whom the majority—I do not include myself in this—are real experts in the field about which we are talking. They have had their hands—literally, their healing hands—on the patients of whom we are speaking.
When a Government change their mind, one always looks for reasons. The Government have changed their mind on this issue. It is absolutely clear from the Government's attitude to the 2004 draft Bill that they believed at that time that additional safeguards were needed. That is presumably why they included those safeguards in the draft Bill and it is for exactly those reasons that the committee, which I chaired, shared their concern that those additional safeguards were needed. The Government have now withdrawn from those safeguards to a position in which they are saying that the 1983 Act provides perfectly well for renewal. No cogent reasons have been given, other than—if it be a reason—that the 1983 Act works reasonably well so there is no reason to change it.
The noble Baroness spoke about competencies. I urge the Committee to beware of the word “competencies”, which arises in all forms of qualification approval in the public sector these days, not least in the legal profession and in the appointment of judges. It usually involves self-assessment or, at best, rudimentary assessment by others. Competencies are no substitute for recognised
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The Joint Committee on Human Rights was troubled about this part of the law and asked the Government to explain why they thought that the current situation under the 1983 Act was compatible with the Human Rights Act and the convention. The Bill as a whole has been certified as compliant with the convention, but it would be of great assistance if the Minister could respond on this point—I apologise for not raising it earlier. We can then be clear on whether the Government are right.
It would not be appropriate to divide the Committee on this matter today, but it is currently my intention—and possibly that of others—to return to the issue. With that in mind, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Murphy moved Amendment No. 9:
(a) in subsection (1) after the words “to a hospital”; and (b) in subsection (2) after “a patient”, insert “who has been admitted to hospital for assessment under section 2”.”The noble Baroness said: There were some good things in the 2004 Bill which have sadly been omitted from this Bill. One was to set up a single gateway into compulsory powers under which every patient had a 28-day assessment period before being either discharged or placed on a compulsory treatment order by a tribunal. Under the 1983 Act the assessment period under Section 2 may be bypassed, and some patients placed immediately on a treatment order under Section 3, which enables clinicians to bypass an early application to the tribunal. There is a right of access to the tribunal to challenge each order. The purpose of this amendment is to provide a single gateway into the system for the exercise of compulsory powers, similar to that in the 2004 Mental Health Bill, to ensure that any individual who is potentially to be detained and treated against his or her will in hospital always undergoes a period of assessment before that occurs. This approach was also recommended by Ginevra Richardson’s expert committee, and adopted for the 2004 Bill.
The merit in that is that circumstances change clinically, the nature of the disorder may change, and it is always a mistake to assume that because somebody has had it before, this is another episode of the same. I have seen many such mistakes made when people are readmitted, harking back to what was said by the noble Baroness, Lady Finlay of Llandaff, in her response to the previous amendment. Something seriously amiss has happened in the patient’s life to
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