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Clause 29 [Authority to treat]:

Lord Hunt of Kings Heath moved Amendment No. 58:

On Question, amendment agreed to.

[Amendment No. 58A not moved.]

Clause 30 [Repeal of provisions for after-care under supervision]:

Earl Howe moved Amendment No. 59:

On Question, amendment agreed to.

9 pm

Earl Howe moved Amendment No. 60:

(a) the patient lacks capacity to decide whether to make such an application; and (b) there is any good reason why such an application should not be made.

The noble Earl said: My Lords, the Minister will remember that in Committee I tabled a very similar amendment to this one. The point at issue is whether there should be an extra degree of protection in the Act for those mental health patients who lack capacity and who therefore do not exercise their right to appeal to the mental health review tribunal.

Every year there are about 45,000 detentions under Sections 2 and 3 of the Mental Health Act, which are the sections that enable a patient to make an immediate application to the mental health review tribunal. Yet it is extremely unlikely that any but a small minority of patients so detained have the capacity to make a tribunal application. For example, some of these patients will have learning difficulties that will have prevented them from understanding the

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nature and purpose of the tribunal. Others, by reason of their mental illness, will not have the capacity to apply for a tribunal because their depressive symptoms make them feel that there is no point in applying, or their delusional symptoms make them suspicious of the tribunal’s motives.

Just taking Section 2 detentions, we know that in 2004-05 Section 2 was used more than 21,000 times and there were just over 6,000 tribunal applications. Therefore, about 15,000 people detained under Section 2 did not apply for a tribunal. We cannot tell how many of those 15,000 lacked the mental ability or legal capacity to take a decision on whether to apply, but even if only 10 per cent fell into that category—and that has to be a modest assumption—1,500 referrals still could have taken place, and almost certainly should have taken place, but did not. Hospital managers have a legal duty to ensure that suitable cases, where patients lack capacity, are referred to the tribunal. It is clear that many are not properly complying with that obligation. That is a very serious situation.

When I raised this issue in Committee, the Minister said that she understood the point at issue, but she rejected the amendment on several grounds. In the first place, she reminded us that Section 68 already places a duty on hospital managers to refer a case to a tribunal where no application has been made in the first six months. Following this, adult patients are referred every three years, and children every year. She also pointed out that the Bill introduces the option to reduce these periods when resources allow. Her fear was that the amendment would lead to an immediate increase in tribunal referrals which may or may not be wanted by the patients concerned, and that it would force managers to assess capacity indiscriminately.

The Minister will see that I have changed the amendment so as to place a duty on hospital managers to make appropriate referrals not to the tribunal direct but to the Secretary of State, who can exercise her power under Section 67 to refer the case to the tribunal. I say to her that this formulation is not designed to change the law; it is designed to help NHS trusts not to fall foul of the law. The case of R(MH) v Secretary of State (2004) clearly showed that hospital managers have a duty to refer appropriate cases to the Secretary of State with a request that it be referred to the tribunal. The noble and learned Baroness, Lady Hale, concluded the case by saying that,

to appeal to the MHRT,

The duty under Section 68 to refer all cases for a tribunal hearing where no application has been made after six months really is not a sufficient safeguard for this particular group of vulnerable patients. That certainly is the conclusion one can legitimately draw from the judgment in the MH case. Yes, it is indeed likely that the amendment may lead to an increase in tribunal hearings. But why is that? It is because these

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patients are currently being denied access to the tribunal. That hardly places the Minister’s position on the moral high ground.

I agree with the Minister that hospital managers in general have no system to identify those detained patients who are incapable of applying to a tribunal; that is true. But the result of that is that many people are being denied the right to have their cases heard by a mental health review tribunal. There has been absolutely no guidance on this point from the Department of Health.

It would be very good if the Minister were able to take this problem on board and think about how it might be put right if an amendment such as this is not acceptable to her. I beg to move.

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): My Lords, I am very grateful to the noble Earl for introducing his amendment. My background briefing says that this is a very clever amendment, so I pay tribute to him for that. I, too, was struck by what the noble and learned Baroness, Lady Hale, said in responding to this. The critical part of what she said was about being practical and effective in what we did in terms of the amendment. I thought very carefully about the issue that the noble Earl has rightly raised. I reiterate what I said in Committee: I have no difficulty with the principle behind what the noble Earl is seeking to achieve; the discussion between us is how we get there.

There is a difficulty in placing this in the Bill, because we run into two possible problems. One is the inflexibility that primary legislation can offer us sometimes, which could be a difficulty. Secondly, I hope that the amendment is unnecessary, for two reasons. First, in the draft code of practice we have been very clear. It states:

That raises my second point, which is that under either the ECHR or the Human Rights Act we have very clear guidance and understanding in the public bodies that they have a right and a duty to comply with the Human Rights Act.

I am happy to commit to look again at the code of practice to see whether we can strengthen this aspect of it to address the reasonable concerns expressed by the noble Earl to make sure that this actually happens when it should happen. I hope that in so doing, although I am not committing to putting this in the Bill, I will be able to demonstrate as the Bill passes to another place that I have addressed the concern that is reasonably raised in the amendment. To do so would make sure that the combination of ECHR/Human Rights Act compliance and the requirements under the code of practice addresses the concerns that the noble Earl raises. On that basis, I hope that he is able to withdraw his amendment.

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Earl Howe: My Lords, I am very grateful to the Minister for that helpful and positive reply, and I accept her offer with gratitude. I am grateful to her for giving such serious thought to the proposals that I put forward. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 33 [Cross-border arrangements]:

Lord Hunt of Kings Heath moved Amendment No. 61:

(a) in force in Scotland, Northern Ireland, any of the Channel Islands or the Isle of Man; and (b) corresponding to subsection (1) above.

On Question, amendment agreed to.

Schedule 5 [Cross-border arrangements]:

Lord Hunt of Kings Heath moved Amendments Nos. 62 to 66:

(a) the words “to Scotland or Northern Ireland”, (b) paragraph (a), and (c) in paragraph (b), the words “in Northern Ireland,”

On Question, amendments agreed to.

Lord Hunt of Kings Heath moved Amendment No. 67:

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(a) the reference to a patient who has capacity is to be read in accordance with the Mental Capacity Act 2005; and (b) “parental responsibility” has the same meaning as in the Children Act 1989.””

The noble Lord said: My Lords, in my response to the amendment on consent to treatment for 16 and 17 year-olds, tabled by the noble Earl, Lord Howe, I said that in view of what I had heard in Committee I would take it back and see whether the Government should table an amendment in this area. Amendments Nos. 67 and 94 are the result of the Government’s deliberations.

The amendments clarify the position of 16 and 17 year-olds who require treatment for mental disorder being admitted informally. Section 131(2) of the Mental Health Act 1983 at present provides that a 16 or 17 year-old who is capable of expressing his wishes may consent to being admitted even though there are persons with parental responsibility for him. The intention of the amendment is to make it clear that a 16 or 17 year-old may decide whether to be admitted, regardless of the fact that there is a person with parental responsibility for him. That builds on the approach taken in Section 131(2) of the 1983 Act and is consistent with the age range dealt with in the Family Law Reform Act 1969, which in Section 8 deals with consent by persons over 16 to surgical, medical and dental treatment. It is also consistent with the approach taken in the Mental Capacity Act 2005, which in general applies only to people of 16 years and over.

The amendment amends Section 131, so that patients aged 16 or 17 who have the capacity to consent to their admittance to a hospital or registered establishment for treatment for mental disorder can consent or not consent to such arrangements. If the patient consents to the making of arrangements, they can be informally admitted to hospital, and their consent cannot be over-ridden by a person with parental responsibility for them. If the patient does not consent to the making of the arrangements, they cannot be informally admitted on the basis of consent from a person with parental responsibility for them.

Practitioners must, of course, satisfy themselves that, where the patient appears to be consenting, he understands what he is consenting to and the consequences of that consent. Where the practitioner is not content that the consent is sound, they may not use the consent of a person with parental responsibility. The patient can be admitted to hospital for treatment under the Mental Health Act 1983 if they meet the relevant criteria. There is also, of course, the possibility of applying to the court for authority, but we would not expect that route to be used often where there is the statutory alternative of the Mental Health Act.

The repeal of a sub-paragraph in a schedule to the Children Act is pure housekeeping. The sub-paragraph inserted new text into the current Section 131(2) of the

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1983 Act and requires repeal. The other amendment in my name in this group replaces that text.

In conclusion, I thought that the debate in Committee was very good. I was convinced by the arguments and have, therefore, brought forward these amendments. I beg to move.

Earl Howe: My Lords, perhaps I may say how very much I welcome the amendment tabled by the Government, which undoubtedly goes a long way to address some of the concerns voiced in Committee about consent to treatment for minors.

Unfortunately, and at the risk of appearing to be a latter-day Oliver Twist asking for more, I wonder whether the amendment goes far enough. It could be said that it sets up an anomaly. If the amendment is made to the Bill in the form in which it has been tabled, the rights of a 16 or 17 year-old are protected, but those of a Gillick-competent child are not. That discrepancy is unsatisfactory and potentially confusing. Amendment No. 71, which stands in my name and that of other noble Lords, would provide an explicit statutory provision that those with parental responsibility could not over-ride the competent refusal of a child or young person for treatment for a mental disorder.

Perhaps I could briefly set out why this is an issue. It has commonly been accepted that the refusal of a Gillick-competent child or a mentally capable 16 or 17 year-old to accept medical treatment can be over-ridden by a person with parental responsibility for that child or young person. That principle was established in a 1992 case, In Re W. In the area of mental health, this led to uncertainty: should a professional rely on parental consent in the face of the child or young person refusing, or should he use the powers of compulsion under the Mental Health Act 1983? That uncertainty typically causes delay in making appropriate arrangements for the child or young person, which is highly unsatisfactory.

The Department of Health initially cited case law as giving greater autonomy to children and young people; the Minister referred to that in Committee. However, the case law in question, the Axon case, is not conclusive. It relates to the duty of confidentiality. It considered how medical professionals should deal with young people who are Gillick competent and want advice on sexual matters but who cannot be persuaded to inform their parents or to permit the medical professionals to inform their parents. It does not, therefore, address the issue of a competent child’s refusal of medical treatment. Indeed, the case of In Re W is not mentioned in Axon.

In Committee, the Minister referred to changes to the code of practice. In fact, the draft illustrative code of practice removes references to the refusal of a Gillick-competent child or a capable 16 or 17 year-old being over-ridden by a person with parental responsibility. However, it cites no case law to support that view, nor is there any explanation for the change in approach.

There is confusion here. The department’s 2001 guidance, Reference Guide to Consent for Examination or Treatment, refers to parental consent over-riding

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the refusal of a competent child or young person and suggests that this power should be used only rarely. But the guidance then states that,

So the cause for concern is not simply that there is a need for guidance in the form of a code of practice, or whatever, to resolve the confusion among practitioners; the amendment is needed because the current law is unclear. I believe that it can be made unambiguous only by including a provision on the face of the Bill. I hope that the Minister will agree to look at this issue very carefully.

9.15 pm

Baroness Walmsley: My Lords, I support the noble Earl, Lord Howe, and thank the Minister for his letter to me explaining the position that he took at that time and for his change of heart. We very much welcome the amendment, although it does not quite go far enough. The concept of the Gillick-competent child is quite well understood. It works very well in relation to sexual advice. If you were dealing with a large number of children—in a school, for example—it might be practically difficult to use the concept of a Gillick-competent child in making decisions. The cases we are talking about involve individual children whom the professionals have had every opportunity to get to know and to assess whether they are competent to make the decision. In that situation, I suggest to the Minister that, practically speaking, it is very reasonable to ask the Government to include not just 16 and 17 year-olds but also those children who can demonstrate their competence to decide on these matters.

Lord Hunt of Kings Heath: My Lords, I am grateful for the noble Baroness’s helpful comments. This is clearly a complex area.

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