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It has been put to me by the British Psychological Society that we should on no account rule out the possibility of psychologists, with the appropriate training and experience, acting as the responsible clinician and being able to decide on their own account whether the person under examination meets the criteria for continued detention. In other words, the society does not accept that a doctor always needs to be involved. It would appear from the Government’s amendments that they do not now agree with that proposition even though they have argued for it in the past. But the issue raised by the BPS in turn begs the question of the competencies that would be required of anyone carrying the job title of responsible clinician or approved clinician. The Minister spoke about these at some length in Committee. One of the competencies will be,

Can the Minister clarify that point? Will the competencies required of responsible or approved clinicians amount to an ability to meet the ECHR criteria for objective medical expertise? Was that what she was trying to say? If so, in what way will those competencies be evidenced and proven? Notwithstanding their amendments tabled here and the opinion of the Joint Committee, do the Government envisage a time when psychologists might be granted sole responsibility for determining a renewal decision?

I welcome the fact that the Government have moved in the direction urged by many of us in Committee. However, some important questions have

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been left dangling and I am a little worried that if the government amendments are accepted as they stand, we will be left with some important uncertainties.

7 pm

Baroness Meacher: My Lords, I am grateful to the Minister for his amendment which definitely goes part of the way to achieving what a number of us discussed with him outside this Chamber. I want to focus on one point. As the government amendment stands, there is the rather ludicrous possibility that an occupational therapist or nurse, for example, as the responsible clinician, could consult a psychiatrist, with 13 years of training and experience. That psychiatrist might conclude that a renewal would not be appropriate, but as I understand the proposed amendment the occupational therapist or nurse could overrule that conclusion and could simply renew the detention. Alternatively, a highly experienced psychiatrist could conclude that a patient would be a danger to themselves or others if the detention was not renewed at that time and they were discharged. However, a slightly ideological occupational therapist or nurse might nevertheless say, “Why not? We’ll discharge this patient”. I cannot believe that the Government really want the serious possibility of that state of affairs on the statute book. Therefore I seek an assurance from the Minister that he will feel able to put that right and ensure that the medical opinion is in line with that of the responsible clinician before decisions not only on a renewal but also on a raft of other key aspects under the Mental Health Act 1983 and envisaged in this Bill are made.

Lord Patel of Bradford: My Lords, I shall be brief. This debate centres on the legal requirement that detention under the mental health powers must be based on objective medical evidence. That is the test established in the European Court of Human Rights and it is the matter addressed with such clarity by the Joint Committee on Human Rights. The Government’s view that objective medical evidence need not be provided by a doctor had been—here I choose my words carefully—a minority view among legal commentators and stakeholders debating the Bill. I see that the Joint Committee on Human Rights also does not agree with the Government’s definition of objective medical expertise and that it found the Government’s arguments on this matter in the context of renewal unconvincing. It therefore seems likely that convention compliance requires a doctor’s involvement in the renewal of detention and that such a renewal should be based on objective medical evidence. I do not believe that the government amendments provide sufficient involvement for the simple reason that the law would require only that a doctor is consulted in the renewal process. There are no requirements on the specific nature of such consultation—it could be a brief telephone conversation—and the renewing professional would not appear to be bound only to renew the detention if the consultation supported that action.

By contrast I have no hesitation in supporting the amendment moved by the noble Lord, Lord Carlile, which would make it a requirement that a doctor

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examines the patient and concurs that the conditions for detention continue to be met. That is what is and should be required of our legislation.

Baroness Royall of Blaisdon: My Lords, Amendments Nos. 5, 18, 19, 34, 37, 38, 41A, 42, 42A, 45A, 46A, 48, 49 and 50 concern key decisions about a patient’s case and the professionals who should be involved in making those decisions. Of course we agree that renewing a person’s detention is an extremely important step. The Bill places the responsibility for renewing a patient’s detention and for extending or revoking their community treatment order with the patient’s responsible clinician and an approved mental health professional must also agree before such an order can be revoked. In many cases the responsible clinician will be a doctor. However, in some cases where it is appropriate to the patient’s needs, the responsible clinician may be an approved person from another profession.

In Committee and again today we have debated who should be responsible for renewing detention, and I note that Amendment No. 5 differs from the one tabled in Committee. However, the Government still cannot support this amendment, nor can they support the amendments about extending or revoking a patient’s community treatment order because they undermine the role of the responsible clinician and the policy on expanding professional roles in line with new ways of working.

We have heard arguments relating mainly to the importance of psychiatrists or medical doctors in making key decisions about patients. However, other views have not yet been heard which take a different perspective on the matter. We have received letters opposing any amendment that would put in the Bill a requirement for a doctor to be involved in the decisions taken by a responsible clinician. They suggest that even the compromise proposed by our amendment is unnecessary. Letters expressing this view have been received from the British Psychological Society, the Royal College of Nursing, the College of Occupational Therapists, Dr Christine Vize, consultant psychiatrist at Tees and North-East Yorkshire Mental Health Trust, Dr Stephen Humphries, consultant psychiatrist at Avon and Wiltshire Mental Health Partnership Trust and Geraldine Strathdee, consultant psychiatrist and director of clinical services at Oxleas Foundation Trust. These individuals and professional bodies strongly believe that it is wrong for the psychiatrist’s involvement in key decisions to be paramount to the exclusion of other members of the multidisciplinary team. They believe that to do so would undermine the expertise of the responsible clinician and the important contribution made by other members of the multidisciplinary team. We agree with this point of view, but we feel that a compromise may be needed.

Currently, key functions must be allocated along strict professional boundaries, but we do not believe that this is the most effective or efficient way of operating. It is the Government’s aim that key functions should be performed by the most appropriate professional. All responsible clinicians in England will be approved as approved clinicians by strategic health authorities. They must have demonstrated high levels of skill and experience in mental health and have undergone specific training in order to be approved. The competencies

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that must be demonstrated before a person can be approved have been agreed with a wide range of stakeholders, including the Royal College of Psychiatrists, and will be in directions that have the force of law.

There are clearly strong feelings on this issue from both sides of the debate. We are therefore prepared to offer a compromise by amending the Bill to ensure that a responsible clinician who is not a doctor consults a doctor before making key decisions. Government Amendments Nos. 18, 19, 34, 37, 38, 42, 48, 49 and 50 would require a responsible clinician who is not a doctor to consult a doctor who has been professionally concerned with the patient’s medical treatment or who is an approved clinician who has examined the patient before furnishing the report renewing a patient’s detention before initiating, extending or revoking a community treatment order and before furnishing the report redetaining a patient who has been absent without leave for more than 28 days. Naturally, we would expect a responsible clinician to consult the multidisciplinary team, including a doctor, as a matter of good practice, but the amendments would place the requirement to consult a doctor into law.

The amendments will ensure that the expertise of a doctor will inform key decisions about a patient’s case without fundamentally undermining the Government’s policy that a patient’s responsible clinician, who has been selected because he or she has the expertise best suited to the patient’s needs and who has the broadest knowledge of the patient’s case, should have the final say in such decisions. To require the responsible clinician to gain the agreement of a doctor before they can renew the patient’s detention or extend or revoke the patient’s community treatment order, as Amendment No. 5 would require, implies that a doctor’s opinion is always the most important one in making these decisions. Of course the responsible clinician should take account of the views of the whole multidisciplinary team.

The noble Earl, Lord Howe, and the noble Baroness, Lady Meacher, asked what would happen if a doctor who is consulted disagrees with the responsible clinician. It is right that the responsible clinician should have the final say, because they have overall responsibility for the patient’s case and therefore the best knowledge about the patient’s current condition. They have been selected because they have the expertise most suited to the patient’s needs. They will also have access to the range of professionals from the patient’s multidisciplinary team and will weigh up all views in coming to a decision about the patient.

We expect that in most cases, the responsible clinician and the doctor should negotiate to come to a mutually acceptable decision. If there is a fundamental difference of opinion that cannot be resolved, there are several routes through which a psychiatrist can have the view of the responsible clinician reviewed. They can ask the hospital managers to consider whether the patient should be discharged; they can suggest to the nearest relative that they may want to consider using their powers to discharge the patient; they can suggest to the patient that they may want to seek a tribunal hearing; and they can request that the Secretary of State refers the patient’s case to the tribunal.

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Lord Alderdice: My Lords, if a responsible medical officer, be it a consultant psychiatrist or the patient’s general practitioner, disagreed with the clinician, would they be required to continue prescribing medication for the patient in a context which they believed to be clinically unsuitable, because a non-medical practitioner would not be in a position to prescribe the medication? From what the Minister has said, it seems that a doctor would be required to continue to prescribe medication for a patient in a context which he or she felt was inappropriate.

Baroness Royall of Blaisdon: My Lords, I will seek clarification on that point from people more expert than I. However, it seems to me that the medical doctor or the psychiatrist would have to exercise her or his clinical judgment about whether to prescribe whatever medication was being taken.

Lord Soley: My Lords, the reverse of that is that if the doctor said that the patient must be readmitted and the psychologist disagreed, the psychologist might have to continue treatment that he thought inappropriate. In other words, we do not resolve things in this way; ultimately, it is the team approach that matters.

7.15 pm

Lord Alderdice: My Lords, perhaps I might clarify this for the Minister. None of the psychological techniques in use is unavailable to psychiatrists, but a psychologist is not in a position to prescribe medication. That is the point.

Baroness Royall of Blaisdon: My Lords, I am grateful for that clarification. However, I fully agree that the team approach is the best one.

The noble Earl, Lord Howe, and the noble Lord, Lord Patel, asked whether we thought that the legislation was human rights-compliant. Yes, we do. The Winterwerp judgment of the European Court of Human Rights decreed that except in an emergency, a person should not be deprived of their liberty unless they have been reliably shown to be of unsound mind, which must be established by objective medical expertise. We fundamentally disagree with the view that only psychiatrists can provide this objective medical expertise. We do not believe that the European Court of Human Rights was seeking to require that only the medical expertise of a psychiatrist would be acceptable. Instead, we believe that the judgment can be interpreted more broadly as referring to relevant medical expertise which may be from mental health professionals with qualifications in disciplines other than psychiatry.

Lord Lester of Herne Hill: My Lords, I am on the Joint Committee on Human Rights which wrote the report on that matter. Is the Minister able to support what she has just said with any decision made by the European Court of Human Rights, because what she said surprised me?

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Baroness Royall of Blaisdon: My Lords, I will have to write to the noble Lord on that issue; I will do so gladly and with expediency, and will put a copy of my letter in the Library.

We understand the concerns that have been expressed today. Our policy has always been that the decisions of the responsible clinician must be founded on consultation with the multidisciplinary team. However, we feel that the responsible clinician must retain the final say in those decisions, as the person with overall responsibility for the patient’s case. We have offered a compromise so that we can place what is already good practice in statute.

The amendment in the names of the noble Lord, Lord Carlile, the noble Earl, Lord Howe, and the noble Baroness, Lady Meacher, concerning the procedure for extending a community treatment order also requires an AMHP to agree that the conditions for extension are met. We fully agree that the extension of a community treatment order deserves very careful consideration, which is why the Bill provides a robust process for that decision. The responsible clinician must examine the patient and consult another person who has been professionally concerned with the patient’s medical treatment. If the responsible clinician is not a doctor, then the person consulted must be a doctor, or if the doctor has not been involved in the patient’s treatment, then a doctor who is an approved clinician who has examined the patient must be consulted. The responsible clinician must then submit a report to the hospital managers with the outcome of that consultation. On receipt of the report, the hospital managers may hold a hearing to consider whether they wish to exercise their power of discharge. Where the hospital managers are not satisfied that a patient should remain on the community treatment order, they have the power, under Section 23 of the Act, to discharge the patient.

There are other safeguards to ensure that a patient does not remain subject to a community treatment order inappropriately or indefinitely. Given these safeguards, and the rigorous procedure for extension, we do not believe that it is necessary to put an additional step in the process for extending a community treatment order by requiring the agreement of an AMHP. It would mean a different process from that for the renewal of detention. That does not seem logical, particularly if the process already requires consultation with other professionals involved in patient care.

I commend Amendments Nos. 18, 19, 34, 37, 38, 42, 48, 49 and 50 to the House and invite the noble Lord, Lord Carlile of Berriew, to withdraw the amendment.

Lord Carlile of Berriew: My Lords, I am very grateful to everyone who has spoken in this short debate, which was on an extremely important issue of principle. The Minister’s full exegesis of the background to the Government’s view and their current position has been extremely helpful to all of us who have listened to the debate. I listened with great care to her very full presentation to try to ascertain whether there had been any movement at all by the Government on this issue; I am afraid that I have come to the conclusion that there has not.

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The Minister’s responses to the point about the European Convention on Human Rights, the intervention by my noble friend Lord Lester of Herne Hill and the earlier intervention by the noble Lord, Lord Patel, have left me drawing this conclusion about the ECHR issue; the law is against the Government. The Joint Committee on Human Rights was right. The advice that, I take it, the noble Lord, Lord Patel, has received from the Mental Health Act Commission, which he chairs, seems right. The Government have provided absolutely no case law, no legal opinion and no background that is in any way credible to show that their view is right. As a Member of this House, a lawyer and, I hope, a conscientious legislator, I am simply not prepared to allow a clause to pass when it seems so contrary to a fundamental aspect of the law—namely, the Human Rights Act—that all legislation going through this House must comply with.

On the subject very helpfully raised by my noble friend Lord Alderdice, we had the response fed to the noble Baroness by the noble Lord, Lord Soley, that teamwork is the right approach. That, I presume, assumes that teamwork was not going to be involved in any event. The notion that psychiatrists and other clinicians do not work together with social workers, families and all other interested parties in these critical cases is of course absurd. I am sure that the noble Baroness did not mean to imply that. Of course I will give way.

Baroness Royall of Blaisdon: My Lords, I certainly did not mean to imply that teamwork was not taking place at present. The whole premise of what we are doing in this mental health legislation to do with the approved clinicians is based on the notion of teamwork. The noble Lord said that I was fed the answer; I am very grateful to my noble friend for providing me with that answer. Throughout the response that I gave to the amendment I focused on teamwork, and I apologise to all professionals concerned if I did not recognise that it already exists. We are placing greater emphasis on teamwork.

Lord Carlile of Berriew: My Lords, the noble Baroness has absolutely no need to apologise to the House. She made her position and that of the Government completely clear at all stages of her speech. However, this is about the part that should be played in the team by the fully medically qualified practitioner. As my noble friend said, only the doctor has all the kit, as I put it earlier, and all the qualifications to make a full assessment, including the pharmacological effect of the drugs that he may well have to prescribe after the decision has been made.

Lord Soley: My Lords, we ought to look at this again. Psychiatrists are involved in two very important areas. One is the pharmacological area; the other is to identify whether the behaviour is a result of a physical condition rather than a mental one. It is important to note that, when teams go out to readmit people or to do other things of that nature, they may have the doctor’s knowledge but they often work without doctors. That is no bad thing; it is teamwork.

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Lord Carlile of Berriew: My Lords, I agree entirely with the noble Lord that these clinical teams involve many other people. We are talking about whether people should be readmitted to a hospital, where they may spend many years, or whether there should be a renewal of a community treatment order. My view, and the view of all of us who have been involved in the creation of this simple set of amendments, is that it is essential that the fully qualified medical practitioner, with the full kit, should be a key part of that decision.

The Government’s proposed amendments do not achieve that. I regret that very much, because it seemed to me, when these amendments were drafted, likely that the Government would go the extra yards to accept the amendments. However, given what appears to me to be an unwillingness to move, I feel that I have no option, even at this late hour, other than to test the opinion of the House.

7.25 pm

On Question, Whether the said amendment (No. 5) shall be agreed to?

Their Lordships divided: Contents, 147; Not-Contents, 108.

Division No. 3


Addington, L.
Alderdice, L.
Alliance, L.
Anelay of St Johns, B.
Ashdown of Norton-sub-Hamdon, L.
Astor of Hever, L.
Avebury, L.
Baker of Dorking, L.
Barker, B.
Blaker, L.
Bonham-Carter of Yarnbury, B.
Boothroyd, B.
Bottomley of Nettlestone, B.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Burnett, L.
Carlile of Berriew, L.
Carnegy of Lour, B.
Chidgey, L.
Clement-Jones, L.
Colville of Culross, V.
Colwyn, L.
Cope of Berkeley, L.
Cotter, L.
Craig of Radley, L.
Craigavon, V.
Darcy de Knayth, B.
De Mauley, L.
Denham, L.
Dholakia, L.
D'Souza, B.
Dykes, L.
Falkland, V.
Fearn, L.
Ferrers, E.
Fookes, B.
Fowler, L.
Fraser of Carmyllie, L.
Freeman, L.
Garden, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
Glentoran, L.
Goodhart, L.
Greaves, L.
Greengross, B.
Greenway, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Harris of Richmond, B.
Henley, L.
Hodgson of Astley Abbotts, L.
Hogg, B.
Hooson, L.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Hylton, L.
Inglewood, L.
Jenkin of Roding, L.
Jones of Cheltenham, L.
Kingsland, L.
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