I beg to move amendment No. 1, page 4, line 16, leave out

‘In section 145(1) of the 1983 Act (interpretation)’

and insert—

‘(1) Section 145 of the 1983 Act (interpretation) is amended as follows.

(2) In subsection (1)’.

With this it will be convenient to discuss the following amendments:

No. 2, page 4, line 18, after ‘care’ insert—

‘(but see also subsection (4) below)’.

No. 3, page 4, line 18, at end insert—

‘(3) After subsection (3) insert—

“(4) Any reference in this Act to medical treatment, in relation to mental disorder, shall be construed as a reference to medical treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations.”.’.

The amendments are in my name and that of all the Back-Bench Labour members of the Committee—I hope the Minister is aware of that—and some Conservative and Liberal Democrat Members. The three amendments tie together rather oddly, so for clarity I should explain that they would have the effect of rendering section 145(1) of the Mental Health Act 1983 as:

“‘medical treatment’ includes nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care (but see also subsection (4) below).

(4) Any reference in this Act to medical treatment, in relation to mental disorder, shall be construed as a reference to medical treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations.”

The British Medical Association has written to all Members of the House, I think, to say:

“This is the central clinical and ethical issue in relation to the legislation…the BMA strongly advocates the inclusion of a requirement that the use of the legislation must provide therapeutic benefit and could support the amendment subject to firm assurances that ‘manifestations’ referred to are clearly linked to underlying clinical conditions.”

The BMA is not the only organisation that is urging the Government to accept the amendment. Mind, the mental health charity, for which I ran the marathon earlier this year, has written to say:

“We also welcome the amendment tabled by Chris Bryant MP”

and other Members

“which would re-introduce a requirement to the 1983 Act that compulsory treatment must be of therapeutic benefit.”

Likewise, Hafal, the mental charity in Wales, has also supported the three amendments. The Mental Health Coalition, the new combination of organisations including Unite, which is my trade union, Unison, the Royal College of Nursing, the College of Occupational Therapists, the British Psychological Society and the British Association of Occupational Therapists, has also written to say:

“We are supportive of this amendment and have made this clear to the Minister, we are urging her to accept it and would encourage MPs to support the amendment.”

Finally, the Mental Health Alliance has written to say that it welcomes the amendment, although it has some concerns about the concept of manifestations and would want ministerial assurances that what it refers to is clearly part of the mental disorder.

It is perhaps important to stress some of the context in which the amendment comes before us. Ever since 1324, we have had in statute some provision to detain people solely by virtue of their mental ill health, although I apologise for the terms in which the legislation was couched in 1324, when the royal prerogative asserted that the king had jurisdiction over the persons and property of “idiots” and those who happened to “fail of” their “Wit”. Obviously, legislation moved substantially, and in the Vagrancy Act 1714, we had the first articulation of how we should be able to detain somebody purely by virtue of their mental ill health. That subsequently translated into the Mental Health Act 1959 and then the 1983 Act, which made clear the requirement for a therapeutic environment.

The principles that I feel are important in this issue are pretty straightforward. First, no psychiatric unit can be a prison by another name; it must be a therapeutic environment. Secondly, any person, whatever their mental condition, whether or not it is a condition that we currently believe is curable, must have the right to appropriate treatment and we cannot simply wash our hands of them.

Will my hon. Friend confirm that the amendment would certainly enable people with personality disorders to be treated in a therapeutic environment? My concern is that people with such disorders have in the past been refused treatment on the grounds that they are untreatable according to a very rigid interpretation of the terms “alleviate”, “likely to alleviate” or “not worsening” symptoms.

I believe that there have been instances since 1983, and that there were certainly instances before, in which people believed that the treatability test was actually a curability test, and that because one could not cure somebody of a personality disorder, one should not therefore bother to treat them. That view is certainly not held now among most psychiatrists, most consultants working in hospitals and most of those working in mental health services today. I hope that, in future, as science advances in this area, we will be able to provide many more treatments. Who knows? Perhaps in the distant future, we will be able to get closer to curing some of these personality disorders.

Will my hon. Friend comment on the situation of one of my constituents, who murdered a man? The murderer, my constituent, had been in and out of Homerton hospital in my constituency for two years to be treated for schizophrenia prior to the day release on which the murder took place. He was sent immediately to Broadmoor, where he spent 10 months being assessed. At the point of conviction, in trial, the judge was told that he could not send the man to Broadmoor under sentence and could send him only to a mainstream prison, because under current mental health legislation, he could not be treated. Does my hon. Friend believe that the amendment will capture such situations, and will he join me in urging the Government to take note of what is being laid down today?

I am grateful to my hon. Friend, who has made a valid point. We should consider not only people who might commit a homicide, but, far more significantly, those who might be considering suicide. As last year’s report on avoidable deaths by the university of Manchester pointed out, some 1,300 people who had been through mental health services committed suicide last year in the United Kingdom compared with some 30 homicides. It may be that when some people’s minds are very disturbed, the dividing line between homicide and suicide is not as clear as it might be for others. We should consider the rights and needs of the patient, which is an important principle.

I am a little concerned by something that the hon. Gentleman has said. Will he accept—I declare an interest as a member of the BMA medical ethics committee—that treatment is more than just intervention? Treatment is something that has a chance and that has been shown to be effective in having a chance, although not in every case, of alleviating the condition in some way. That is different from intervening or placing someone in a therapeutic environment. If the concern is to protect the public, it should not be done under a notion of treatability when it simply involves intervention or detention. Will the hon. Gentleman give me that assurance about his amendment?

I return to the first principle that I articulated, namely that no psychiatric unit should be a prison by another name. However pleasantly it might be arranged, we cannot detain people just for the purpose of detaining them, and there must be some kind of therapeutic benefit. That is the purpose of the amendment.

We also need to adhere to two other important principles. First, the public have a right to protection. Historically, mental health legislation has always allowed for the protection of the public. Originally, the legislation addressed the protection of the King, but it was subsequently extended to cover all members of the public.

I know from personal experience in my family that families, friends and carers of those who have significant mental health problems sometimes want mental health services to have the right to detain and sometimes feel that mental health services were too hesitant in detaining somebody, because they consequently saw that person travel further and further down the route towards significant mental ill health in a way that they think is irretrievable.

Having said that, it is important to bear in mind that I do not believe that the Bill will balance the rights of the patient, the rights of the public and the rights of families and friends on the security of society and the rights and freedoms of the individual without some kind of treatability test. The treatability test in section 3(2)(b) of the 1983 Act specifies that

“in the case of psychopathic disorder or mental impairment, such treatment is likely to alleviate or prevent a deterioration of his condition”.

That is clear, but it refers only to those with a psychopathic disorder or mental impairment and not to those with other mental disorders. Because of the way in which we are changing the 1983 Act, any treatability test that we introduce tonight will apply to not only the historical definition of “psychopathic disorder”, but anybody who might be detained for any mental disorder.

As I am sure that all hon. Members know, the Lords insisted that there should be a treatability test and inserted one almost identical to that in the 1983 Act, before the Commons Committee—I see that most of its members are here this afternoon—removed it. However, I believe that there is a need to insert a form of treatability test if we are to get the balance right. The Lords version of the treatability test sets too high a hurdle because it insists on the word “likely ”, as in a treatment being

“likely to alleviate or prevent a deterioration in his condition.”

Likelihood is a very high hurdle. Is it more than 50 per cent. likely—that is what “likely” means in most dictionary definitions—that the treatment will produce one of those two outcomes? That is difficult to argue. It is also difficult to argue at the beginning of an individual’s treatment under detention that their condition will be alleviated or will not deteriorate further, because the process of detention or of starting treatment may itself bring about a deterioration in the condition.

I support the general direction in which the hon. Gentleman is going but remain a little concerned. Sometimes people are treated with a small chance of success because they are consenting autonomously and are not being forced into it. Moreover, they are able to carry out a risk-benefit calculation that may well fall on the side of benefit even if the treatment is not likely to be effective. In this case, we are talking about depriving someone of their liberty, so there is good reason for the hurdle to be high. I hope that the hon. Gentleman accepts that, and I am interested to hear him develop his point.

I will go on to articulate more about why the concept of purpose embodies an element of likelihood. It would be wrong to say that we should provide treatment where we know that there is no likelihood of any alleviation or prevention of deterioration in the condition; that would be unethical, wrong and counter-logical. However, the Lords phrased the amendment in such a way as to create a very high hurdle.

The hon. Gentleman is making a powerful case. Does he agree—I think that this is helpful to his argument—that the concept of purpose in relation to medical procedures was imported at a late stage into the Mental Capacity Bill in the context of making it clear that euthanasia was not acceptable, and that that was done for precisely the reason that he is adducing—as part of the scope of the doctor’s considerations in making the intervention?

As is so often the case, the hon. Gentleman is absolutely right. It is a simple matter of logic that if someone says that they intend or propose to do something, and then set about doing it in a way that one could reasonably expect to have no likelihood of success, they cannot genuinely have intended or proposed to do it. Therefore, if the purpose of the treatment is

“to alleviate or prevent a deterioration in his condition”

one must believe that there is some likelihood of success. That is why I suggest to the hon. Member for Oxford, West and Abingdon (Dr. Harris) that the hurdle is not as low as he may fear.

During the debate in the House of Lords, Earl Howe spoke against a compromise amendment that was remarkably similar to the one that I proposed but spoke of symptoms and effects instead of symptoms and manifestations. He said:

“The effect of someone’s mental disorder may consist of alarm or affront on the part of the public because his behaviour has been violent and disruptive. Treatment that has the purpose of alleviating that effect—and no more than that—could consist of nothing more than locking the person up in a therapeutic surrounding away from the public view.”—[Official Report, House of Lords, 19 February 2007; Vol. 689, c. 928.]

I believe that he was stretching a point and deliberately misconstruing what the word “effect” might mean, but let us be generous to him and say that there was some ambiguity in the word. Clearly, it is not right to detain somebody solely to prevent somebody else from being fearful of that person’s mental condition. I do not believe that that is what “effect” meant, and that it referred to the condition itself. However, that is why I have suggested “manifestation” instead of “effect”.

I also believe that Lord Carlile was wrong when he said in the debate in the House of Lords that somebody could be detained purely to treat that person’s Tourette’s syndrome. He appeared to ignore the fact that not only one but three tests must be fulfilled to detain someone because of their mental disorder. We should add a fourth, namely the availability of treatment. It is important that detention cannot happen unless the person is suffering from a mental disorder of a nature or to an extent that warrants that. On top of that, he should be detained in the interests of his health and safety or with a view to the protection of other persons. Given that all those tests must be met, Lord Carlile’s concerns about detention to treat Tourette’s syndrome are not valid arguments.

I have insisted on the phrase “symptoms and manifestations” in amendment No. 3 because I believe that the manifestation of an element of a mental disorder must have a direct relationship with that disorder. The relationship cannot be indirect; the manifestation must, by definition, be an element of the condition. The reason for the word “manifestation” is that it has a direct route into the mental disorder. Let me give an example. Somebody who is schizophrenic might suffer and be extremely angry because he has just split up with his partner. He might be furious with her. However, we should not be allowed to detain somebody solely to treat that anger unless the perhaps violent anger is a direct manifestation of the mental disorder from which he suffers. That is important.

Why did the hon. Gentleman use “manifestation” instead of “sign”, which is commonly used in the medical field?

I am grateful to the hon. Lady because she has enticed me into my next paragraph. I know that many clinicians say that it is standard clinical practice to differentiate symptoms and signs. Using that term in the Bill therefore appears nice and clear. A symptom is something that patients can articulate or feel to be part of the condition. A sign is what the clinician can objectively perceive. Those definitions are generally accepted, although some clinicians use “sign” differently, to mean either what a clinician can perceive through understanding of the clinical condition or what any person could perceive. That introduces an element of ambiguity.

More significantly, the word “sign” may have a clinical meaning but it has no clear legal meaning and consequently confuses the issue. The word “manifestation”, which has no clinical meaning, provides much greater clarity in the Bill because there must be a direct relationship between the manifestation and the condition.

On that basis, I hope that my right hon. Friend the Minister will share my understanding of “manifestation” and make that clear. All the organisations that have written to me and to her, asked for meetings with her and lobbied her as ferociously as me—our last meeting was this afternoon; I hope that we never have to discuss the Bill again after today, much as I like her—support that. I hope that she can put on record her precise understanding of “manifestation” and that she will say that the Government are prepared—perhaps uniquely—to accept an amendment from a Government Back Bencher.

I end by saying that we cannot always prevent suicide. I know from my own family and my constituents that there are cases in which it feels like suicide is likely to be the almost inevitable outcome of someone’s mental disorder. However, we should not wash our hands of people in that situation. Neither should we encourage the culture of blame, which all too often attends mental health services when somebody takes either their own or somebody else’s life. All too often when that happens, the newspapers will demand, “Let’s find the psychiatrist who let this person out.” We cannot completely eliminate risk and we have to be cautious about both detaining and releasing people. Furthermore, we should not give up seeking treatment for those who have personality disorders just because we have believed that the treatment was not very effective in the past.

A compromise is available here—a compromise between the extremely high hurdle that the Lords insisted on, which made no reference to symptoms or manifestations of the condition and stressed the likelihood of the treatment having a particular effect, and the version that the Government originally wanted. It is undoubtedly a compromise, but when the Minister rises to her feet, I hope that she will not just accept the amendment grudgingly. I hope that she will not feel that she is simply backing down. I hope, rather, that she will ardently embrace the amendment, because it will leave her with a better Bill.

I will speak briefly, because I want the Minister to have the opportunity of explaining why she is backing the amendment—ungrudgingly, as I am sure she will. We are very pleased, as are the vast majority of those who served on the Committee, to support the amendments tabled by the hon. Member for Rhondda (Chris Bryant). He made a forceful, intelligent and well balanced case this evening, as he did in Committee, which is why we said we were strangely endeared to his proposals. We thought then that they had a scintilla—or chinchilla, as I believe he reinterpreted it in Committee—of therapeutic benefit, which we believe is so crucial to the whole Bill and the whole principle of mental health. Throughout the Bill’s stages in the Lords and in this House we have tried to reinsert such a provision. Without it, a mental health Bill becomes a mental disorder Bill, as it threatened to do.

I shall repeat again the comments of those who were responsible for the Mental Health Act 1983: at its core was the point that it was essential that people should not be admitted to detention for treatment in hospital if their condition was not treatable. To do so, as the hon. Member for Rhondda said, is to make hospitals prisons by another name. We know that the number of people who have been subject to sectioning has gone up considerably, so there does not appear to be a problem under the treatability test at the moment. We need to retain some form of that treatability test. To remove the treatability requirement, whatever the Government’s intentions, is to permit indefinite preventive detention and to change the law from a health measure to one of social control, of which we have been fearful all along.

Does my hon. Friend agree that ensuring the adequacy and attention of therapeutic treatments and intervention is, in fact, the best way of securing the safety of the public in almost all cases, and that the approach should be grounded in that and not focused at the control end of the spectrum?

Absolutely. Various members of the Committee have acknowledged time and again that the relationship between a mental health practitioner and a patient is a particularly sensitive one, which relies on trust perhaps more than in any other part of the national health service where people seek treatment.

If the Government back the amendment, as I hope they will, they will have moved substantially towards reintroducing a form of the therapeutic benefit treatability test, which is to be greatly welcomed. I very much welcome the language used by the hon. Member for Rhondda. I entirely agree with him that a treatability test is not a curability test; it is about being able to provide some therapeutic benefit, some alleviation of conditions or whatever for the person concerned. The hon. Gentleman made that quite clear when he first proposed a version of the amendment in Committee. We wholeheartedly support the amendment.

The hon. Gentleman might recall that, in Committee, I originally suggested that we use the word “intent” rather than “purpose”. As I understand it, in law, the word “purpose” is much stronger in insisting on an element of likelihood than “intent” would have been, which is why I used it.

I follow the hon. Gentleman’s argument about a more than 50 per cent. likelihood. I simply want the Minister to acknowledge at the Dispatch Box that this is the right understanding of the wording. On that basis, we shall be happy to add our support to the amendment. I hope that the Minister will, ungrudgingly, say that this is a sensible compromise and congratulate the hon. Member for Rhondda on introducing it into this important part of the Bill. This is an important principle underlying mental health law.

The House owes the hon. Member for Rhondda (Chris Bryant) a deep debt of gratitude for providing a solution to the core problem of the Bill. It is an ethical principle of medicine that its objective is to benefit patients, although it does not always do so. Detention by the NHS, as opposed to detention by Her Majesty’s prisons, has—save in rare cases of epidemic control—the goal of doing some real good to the patient. Indeed, the 1983 Act allows for the detention of seriously ill and at-risk patients, provided that there is a treatment likely to alleviate or prevent deterioration of their condition. That is the treatability test that, as the hon. Gentleman pointed out, applied to no one other than psychopaths and the mentally impaired. The treatability test left us with the problem of those with an untreatable personality disorder, which was dealt with without conclusion by the Joint Committee, and for which our Committee did not find a solution either. Some said that such people should be released, and I think that the hon. Member for Daventry (Mr. Boswell) said that they should be interned.

In Committee, the Government made some entirely reasonable points. One was that existing legislation could be used to ignore and duck hard-to-treat personality disorder cases. I accept that that is a problem. They also pointed out that a consistent and deliberate refusal of treatment by an aggressive psychopath, for example, could engineer his dismissal by establishing, quite reasonably, that he was not treatable. The Government therefore initially favoured the definition of treatability that stated that appropriate medical treatment was available. They pointed out, quite reasonably, that not all medical treatment goes beyond palliative treatment, and that chronic conditions are often dealt with by the management of symptoms rather than by an outright cure. The Lords, fearing that the proposals involved simple imprisonment under another name, defined “appropriate available treatment” in the old way, as treatment that was likely to alleviate or prevent deterioration of the condition, and we were back to square one.

The Rhondda amendment, if I can call it that, is an attempt to bridge the gap. It removes the word “likely”, and defines “medical treatment” as having the purpose of alleviating, or preventing the worsening of, mental disorder and its manifestations. It recognises that psychiatry is a relatively young science, and that remedies are not sureties or even always probabilities.

Even if it will not always prove successful, detaining desperately and seriously ill people who are at risk—which, as the hon. Member for Rhondda explained, is what we are talking about—with a therapeutic purpose seems to me to be generally justifiable, subject to the normal rules on advocacy, appeals, tribunals and so on. I believe that the amendment can and should be supported, provided that the Government and those who tabled it make it clear that by “manifestation” they mean symptoms rather than the public impact made by a person’s behaviour. Mental provision should not be about hiding people away and ignoring their conditions.

I rise only to express my delight and amazement that the impassioned speech I had prepared to support this vital amendment is not necessary, and to try to allay the anxiety about the word “sign”. The full description is “physical sign”, meaning that which is found on physical examination of the patient. I am afraid I know very few psychiatrists who still possess stethoscopes, and I rather doubt that many of them actually examine patients. I entirely agree that “manifestation” is far the most sensible word.

I congratulate my hon. Friend the Member for Rhondda (Chris Bryant) on assembling such a powerful coalition against me. There is not a grudge in sight.

My hon. Friend set out very clearly all the ways in which he had tried to address this difficult issue. Let me remind the House what the Government hoped to achieve by removing the treatability test in the 1983 Act and replacing it with an “appropriate medical treatment” test. I am sure that Members, especially those who served on the Committee, will know that—as I think everyone has now acknowledged—the treatability test did more harm than good. As my hon. Friend said, it required clinicians to predict that treatment would be likely to work before certain patients could be detained. As he also said, on occasion it has been misinterpreted as meaning that patients could be detained only if they could be cured, rather than treated. That led to a culture in which, too often, patients with personality disorders were turned away from services on the grounds that they were supposedly untreatable. My hon. Friend the Member for Hackney, South and Shoreditch (Meg Hillier) gave the example of a particularly disturbing incident in her constituency.

That culture was bad not only for public safety reasons but because of the trauma that it caused to patients, their families and their carers. It also held back the development of services for people with personality disorders, despite the clinical advances being made. I believe that as a result of our removal of the treatability test, such development will be enabled rather than frustrated by legislation.

The wording of the test has given some patients a perverse incentive to refuse to engage with treatment, in the hope of arguing that they cannot be detained because the treatment is not likely to work. I have been told of disturbing cases in high-security hospitals where patients have been advised by lawyers not to engage with treatment because it would lead to release. I know that all members of the Committee were concerned about that.

The new “appropriate medical treatment” test requires a patient’s medical treatment to be

“appropriate in his case, taking into account the nature and degree of the mental disorder from which he is suffering and all other circumstances of his case.”

That is much more than the treatability test currently requires. Nothing in that test requires medical treatment to be appropriate to the patient as an individual, and, unlike the treatability test, this test applies regardless of diagnosis.

Accusations were made that the new test would require detention without proper treatment. That is not the case, and is not what was intended. As my hon. Friend said, an amendment made in the other place would effectively have reinstated the treatability test, and in some cases would have made it worse by extending it to all areas of mental disorder. We removed that amendment in Committee because of the problems that it would have created.

I accept that there have been doubts and concerns about the effect of the new test. Genuine worries have been expressed by a number of organisations. That was raised by my hon. Friend when he tabled his amendment in Committee. I agreed to consider it then, but in the meantime my hon. Friend discussed it with a number of organisations, clinicians and others.

The amendment that we are discussing today has considerable support from Members in all parts of the House. I have given it serious consideration, and have met representatives of several organisations. I recently met members of the British Medical Association, who urged me to support the amendment provided that it was clear that “manifestations” were linked to an underlying mental disorder. My hon. Friend rightly explained that manifestations of a mental disorder were the way in which the disorder was manifested. Clearly a disorder can manifest itself only in the thoughts and actions of the person who has the disorder, not in the reactions of others. The crucial difference is that this amendment describes the purpose of the medical treatment; it does not turn on the likelihood of treatments achieving that purpose.

The hon. Member for East Worthing and Shoreham (Tim Loughton) asked about the difference between signs and manifestations, as did the hon. Members for Southport (Dr. Pugh) and for Wyre Forest (Dr. Taylor). We believe that “manifestations” is better than “signs” because the latter can be interpreted more restrictively as only the things that clinicians observe in a clinical setting. The hon. Member for Wyre Forest was getting at that with his stethoscope point. Some clinicians use “signs” to mean only what a clinician can observe through examination at a specific time, which would exclude, for example, reports by third parties of self-harm or suicide attempts. The examination would, therefore, be confined to what was happening there and then. That is why we believe that “manifestations” is a better word to use than “signs”.

I beg to move, That the clause be read a Second time.

My speech will take a little longer than the Minister just took in eventually forcing herself to say that she supported the last amendment we discussed. I hope that she will take a little less time to reach the same denouement on new clause 12. It should come as no surprise to her, as it mirrors amendments tabled in the Lords which she promptly savaged in Committee on very poor grounds. I hope that she has reconsidered and consulted experts, and will admit the error of her ways by now agreeing to restore this rightful amendment to the Bill, whose provisions were originally added to it in the Lords.

New clause 12 represents a basic principle of mental health law: that patients should be involved in, and informed about, their treatment. People with mental illness are unpredictable. That is not something that just happens and goes away; it can come back, and people might live with many episodes of mental illness over many years. As a result, many people with mental illness develop a great knowledge of what works best for them when the illness flairs up; they develop coping mechanisms. They will therefore have their own views on the long-term use of what are powerful and potentially harmful drugs. Such drugs might be deeply unpalatable for some; we have addressed side effects in the past, such as weight gain, diabetes and disabling, embarrassing and at times painful movement disorders.

It is essential that patients are involved in, and informed about, their treatment, and where they retain capacity, as many do, their wishes should be respected. The principle that compulsion should be the last resort underlies our approach to the Bill. For people with a mental illness, the best forms of therapy involve the trust of the clinician, who has the power to prescribe powerful—mind-altering or physical feature-altering—drugs. More than for any physical illness, it is essential that there is a position of trust between the patient and the clinician.

We must respect the autonomy, personal integrity and personal responsibility of the patient. That is a basic human right. In the Bill in its current form—without the impaired decision-making amendments, as added in the Lords—there are inconsistencies compared with how we treat physical illness. The Bill is also still stigmatising, so we have reinserted the amendment that gives an impaired decision-making test, acknowledging that if someone suffers from a mental disorder, it does not automatically mean that they are not fully able to make decisions. That should help to reduce stigma and enhance personal autonomy and responsibility. I would hope that the Minister—along with all the other people and organisations who are interested in mental health—supports that.

The addition of the impaired decision-making provision also makes the grounds for non-consensual medical interventions for people with a mental disorder similar to those for people with a physical disorder, thereby helping to reduce stigma and discrimination. I think that all Members agree that far too much stigma is still attached to mental illness. We have a lot more to do to reach a position where somebody going for treatment for a mental illness is viewed no differently from somebody going to a hospital for treatment for an illness such as cancer or heart disease. We are still a long way from achieving that. At the basis of our perceptions on this subject and how we can change them is the way we configure our laws on how people with mental illness are treated. That is why an impaired decision-making test is essential.

There is something I do not understand. We are talking about a situation in which two clinicians have already established that a person is suffering from a mental disorder and needs to be compulsorily admitted for treatment. Part and parcel of such a mental disorder is some degree of thought disorder—in a sense, that is the manifestation of the disorder. How does the hon. Gentleman’s extra condition of judgment being “significantly impaired” help the clinician who has already made the judgment that that person has a serious mental disorder?

The hon. Lady debated that with us in Committee, and I shall respond to her points later. However, it is important to recognise that many people with mental illness retain capacity and should therefore have the right to influence their treatment.

Does my hon. Friend agree that when we think about people who are detained, we may forget the spectrum of conditions for which people are sectioned? Some are voluntary admissions but many are in crisis, and it is often the sections made under crisis that we think about. However, I have known many cases in which people being sectioned were calm and rational through the admission process, so there is a spectrum of conditions.

That is absolutely right and reflects the point that I was making. It is an unpredictable process, and people go through highs and lows. Of the 47,000 sections last year, some 20,000 occurred after voluntary admission. Surely we want to encourage more people to engage with mental health services as early as possible, so that their condition is treated before it becomes more extreme and they have to have more extreme treatment, and might then be subject to compulsory sectioning. We are trying to encourage best practice and trust in the clinician, and to encourage people voluntarily to engage with mental health services.

I congratulate the hon. Gentleman on the point that he is making and the way in which he is making it. Does he accept that part of the stigma associated with mental illness is the presumption—the caricature, almost—that it inevitably involves total and enduring lack of capacity? That is simply not the case. It is a far more mixed bag, and I point out through the hon. Gentleman to the hon. Member for Stockport (Ann Coffey) that it is not inevitable that lack of capacity occurs, as recent case law confirms.

The hon. Gentleman, who has great experience of these matters through his own medical background, is right. We need to appreciate, respect and publicise, as part of the image and stigma problems—

Will the hon. Gentleman give way?

Hold on. I am trying to answer the hon. Member for Oxford, West and Abingdon (Dr. Harris). Of course I will give way generously, as I always try to do, to the hon. Lady, if I may first finish my sentence—which I have now forgotten, so I give way.

I thank the hon. Gentleman very much. I was simply going to point something out, through him, to the hon. Member for Oxford, West and Abingdon (Dr. Harris). He is talking about capacity, but my point is, what will the phrase “significantly impaired” add to a clinician’s judgment? “Capacity” is a readily understandable term.

In order to make some progress, perhaps the hon. Lady and the hon. Member for Oxford, West and Abingdon would like to go outside and talk about this issue, or both contribute to this debate—if there is any time left after I have made my opening comments—rather than our holding this three-way conversation.

It is important to remember that if a patient with depression has a potentially fatal physical illness such as heart disease or cancer, they may be treated for it only if they give capacitor’s consent, or if they lack capacity and such treatment is in their best interests. In other words, the law permits that patient, if they retain decision-making capacity, to refuse treatment for an illness such as heart disease, but not for an illness such as depression. That is surely inconsistent and wholly illogical, and we are trying to achieve some consistency in the way that this legislation is framed. I make no apologies for returning to this very important principle in the Bill.

The General Medical Council said the following in response to the Government’s criticisms of our approach:

“We do not share the Government’s concerns that people who pose a risk to themselves or others could be excluded from the provisions of the Act because of this amendment. In determining whether a person is able to make a decision about medical treatment for their mental disorder, doctors would need to follow a process which assesses whether:

a. the person is able to understand that they have a mental disorder, what treatment is proposed and why the doctor believes it is necessary

b. they can retain and weigh up this information and make a reasoned decision whether to accept or refuse the treatment

c. their understanding or reasoning is distorted or impaired by their mental disorder.

We envisage that following this process would lead, in practice, to the conclusion that although a person who is suicidal or poses a risk to others may still have some capacity to make decisions, their ability to make decisions about medical treatment for their mental disorder is impaired and they are, therefore, able to be detained under the Mental Health Act, provided the other conditions under the Act are met.”

That counters the point that the Minister has made before in arguing that our proposals would in some way put at risk a large body of people.

Does not the Mental Health (Care and Treatment) (Scotland) Act 2003 include a proposal such as this new clause, which applies to assessment as well as treatment? There have been no reports so far from clinicians or social workers that the measure is not working within that Act.

My hon. Friend is right on both counts, and I will touch on that issue briefly in a minute. As the Minister is always keen to refer to that Act when it suits her, perhaps she will acknowledge that point now—when it suits us, for a change—so that we can draw on that experience, limited in time scale though it is so far.

Genevra Richardson’s expert committee on the 1983 Act recommended an approach to compulsion based on capacity. In her submission to the Public Bill Committee, she said:

“Patients should not be subjected to compulsory treatment against their capable wishes simply in the interests of their own health or for the avoidance of annoyance to others. To do so would be to discriminate unjustifiably against mental, as opposed to physical, ill health…I would therefore urge the retention of clause 4”—

on impaired decision making, which we are trying to restore—

“in its amended form. The presence of impaired decision making as a condition for the use of compulsory powers is essential if we are to apply the recognised principles of health care equally across mental and physical disorder. It will help significantly to reduce both the discrimination reflected in the Mental Health Act 1983 and the stigma which feeds on it. In the years since the publication of our Report our understanding of the nature and extent of the stigma attaching to those with mental disorder has greatly improved…and it is clear that the retention of the impaired decision making amendment would mark a significant step in the battle to combat it. Far from seeking to deny treatment to those who need it, the impaired decision making condition would place mental and physical disorder on an equal footing and would begin to break down those barriers which deter people from seeking the help they need.”

The hon. Gentleman is arguing a fine line. The plain fact remains that many families have lost loved ones who committed suicide; they clearly needed to be treated, but were turned away and did not get that treatment. If the new clause is accepted, the number of such people might increase, and I cannot vote for the hon. Gentleman’s new clause knowing that that might be the case. What does he have to say to the families who have lost loved ones through suicide who did not get the mental health service treatment that they should have received?

I would say to them that it is a tragedy, and that if suitable services had been available for their loved ones, some of those suicides—never all—might have been avoided. I would also say that is not the job of legislation to make up for the poor availability of services or for inappropriate services. Moreover, there is no evidence that the inclusion of an impaired decision-making clause would reduce or increase the number of people under compulsory treatment in any case. The hon. Gentleman must also consider how the legislation is currently framed, and the fear that patients who retain some capacity might have in presenting to services if they think that they are then much more likely to be subject to sectioning and to have their own wishes, knowledge and experience overridden. They might not present to those services at all, and would therefore not get any help from them. Their condition might fester under the clinical radar and, as a result, they could be even more likely to commit suicide or to commit some harm against members of the public.

The hon. Gentleman has no evidence to back up the prognosis he is putting forward—[Interruption]—just as I have no evidence otherwise, as the Minister rightly says. It is a fine line, but surely the point is that it is better to encourage and entice people to engage with those services. Offering a framework that respects their integrity and their wishes when they retain the capacity to have sensible wishes is surely more desirable than saying that their wishes will be overridden, simply because the legislation does not accommodate them.

Will the hon. Gentleman also accept that it is all very well to say that the person should engage with the services on a voluntary basis, but the trouble is that in practice the services are often not available at the moment of crisis, such as in the middle of the night or at the weekend?

If the services are not available at the moment of crisis, having a piece of legislation that says that the person’s wishes can be overridden will not make any difference. It is the services that make the difference, and the person may think that it is not worth engaging with the services, or they may be deterred from or frightened of doing so—perhaps because they have had long experience of mental health services or bad reactions to drugs that were forced on them against their better judgment. They might decide that they would rather suffer than run the risk of being dictated to by a psychiatrist who might be acting in their best interests, but who overrides their wishes even if they retain their capacity. The danger of those people slipping under the clinical radar is as dangerous, if not more dangerous, than the scenario the hon. Gentleman suggests.

If the scenario is a crisis in the middle of the night, at which point help is being sought from the medical profession, the chances are that the decision making of the person involved is impaired.

That is the point that I have tried to make. If somebody has reached such a traumatic point in their life that they are contemplating suicide, they will, in most cases, have impaired decision-making capability and, therefore, the system and the legislation could pick them up. We covered that point in Committee, and if the hon. Member for Bolton, South-East (Dr. Iddon) will not acknowledge that, we will have to agree to disagree. He does not have empirical evidence for his view, as I do not, so I am siding with giving some credence to the decision-making capacity of the patient.

rose—

If the hon. Gentleman will forgive me, I wish to make some progress. We could get very hung up on this point, and it has taken some time already.

There is clear recognition of the importance of an impaired judgment standard in statements from the Joint Committee on Human Rights, whose Chairman is not in his place at the moment, although I am sure he will join us later, and in international standards. They include statements by the World Psychiatric Association, the World Health Organisation, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and the UN General Assembly.

The Joint Scrutiny Committee, of which I was a member, said in its report:

“A large proportion of the evidence received by our Committee favoured a capacity-based approach as the starting point for a new Act, although some proposals were more radical than others. We believe that compulsory powers should only ever be used as a last resort when people are very seriously ill, and we do not agree that a person will become too seriously ill before an impaired decision-making criterion is met.”

Many professional bodies in the alliance have publicly supported that test, including the British Psychological Society, which the Minister has been praying in aid more than any other organisation to try to counter arguments being made in Committee. As has been said, the mental health legislation in Scotland has the same criteria as this new clause, albeit for the assessment stage as well as the treatment order. Anecdotal evidence from psychiatrists and social workers in Scotland suggests that it is not causing dilemmas for clinicians. The principle has been recommended for Northern Ireland, and it is a criterion for admission in other jurisdictions, including Ireland, New South Wales, North Carolina—where the famous Dr. Swartz hails from—Israel and Saskatchewan.

As the hon. Gentleman knows, I have much sympathy with the amendment and I agree with the argument that he is making. How would the new clause deal with the problem of fluctuating capacity?

That is a fair point, because people’s conditions do fluctuate. That point was addressed in Committee and in some of the submissions made to it. The new clause would not remove the discretion of clinicians to make a judgment on how someone’s condition varies.

The General Medical Council also said:

“The requirement that a person’s decision-making ability must be significantly impaired before they can be detained and treated without their consent is consistent with the guidance the GMC issues to doctors, in which we make clear that doctors are expected to respect the wishes of patients who have capacity to make their own decision about treatment or care or disclosures of confidential information, and to act in the best interests of patients who lack such capacity. Those are fundamental principles of good medical practice which we would expect to see applied to decisions involving patients with mental disorders in the same way as those suffering from physical disorders.”

This is not some hare-brained scheme plucked out of the air. This principle, wording and concept are used in other countries and jurisdictions and are backed by a raft of respectable medical professional bodies.

My hon. Friend has not yet referred to the Disability Rights Commission. Has he met representatives of that organisation? It supports new clause 12 because it says that if the new clause is not accepted, the Bill will be highly discriminatory. If the Minister is unwise and does not accept the new clause, does my hon. Friend feel that that decision will be subject to legal challenge?

I have not met the commission recently, but I have read its submission. Its members have every reason to be concerned if the new clause is not accepted, because they feel that if their views are overridden—

Will the hon. Gentleman give way?

The hon. Lady is very keen. I will give way to her in a moment, when I have finished replying to the previous intervention. The commission’s members are concerned that if their judgment and decisions are overridden, they will be deterred from engaging with mental health services in the first place.

The hon. Gentleman still has not addressed the point that I made earlier. Other parts of the Bill refer to the “capacity” of patients to make decisions. The new clause talks about the ability to make decisions being “significantly impaired”. I have asked him to explain how that extra test will add to the ability of the clinician to make a judgment about whether someone should be compulsorily detained. Is he applying a different test to mental capacity? If so, is it a higher test that the mental capacity test or a lower one? [Interruption.] If it is the same test, why does he not talk about capacity, instead of significant impairment of judgment? He has said that it is not our job to make clinicians’ decisions, but it is our job to put comprehensible legislation on the statute book.

Game show like, my colleagues shout, “Lower”, because it is a lower test—[Interruption.] You don’t get anything for a pair on this show, either. That is the answer—[Interruption.] Well, the civil servants are usually in the Box—

Order. I remind hon. Members that there should be no reference to Strangers in any of the Galleries.

Thank you, Madam Deputy Speaker. I have lost my place, but I will try to plough on.

I hope to be helpful to my hon. Friend by pointing out that within the context of mental health legislation, clinicians regularly work with two tests that are interrelated. For example, they regularly work with the concept of capacity to consent to treatment as well as notions of insight into illness. That is not unusual, and that is probably what the hon. Member for Stockport (Ann Coffey) is alluding to when she says that there are two tests. That is true, and it is not unique.

I am grateful to my hon. Friend. Rather than going through that conversation again, I shall give way to my hon. Friend the Member for Rochford and Southend, East (James Duddridge).

The proposed test is a lower one, but my understanding is that the word “capacity” is used to refer to brain damage, which can be physical as well as mental. In contrast, an “impairment” is purely mental. Does my hon. Friend agree that the word “capacity” extends to people who have suffered a physical disruption to the brain in road traffic accidents?

That could be part of it, but the matter is not so straightforward.

I am trying to understand the point made by the hon. Member for Stockport (Ann Coffey). I was not a member of the Committee, although I accept that she was and that she has explored the matter in detail. She said that the existing legislation contains a clear capacity test, but I do not think that it does. Essentially, a doctor or an appropriate clinician judges that a person is suffering from a mental disorder and should be detained. That is not a blatant capacity test, so it is appropriate to introduce an impaired judgment test to capture the point that the hon. Member for East Worthing and Shoreham (Tim Loughton) has made.

rose—

I shall not give way for a while, as several conversations seem to be going on at the same time. Those hon. Members who want to make a contribution to the debate should do so before the Minister accepts the new clause.

The breadth of the law as its stands contrasts with the provisions in most countries, where the seriousness of a condition, or the harm that might be caused, are essential criteria for detention. We consider that the criterion of impaired decision making provides a preferable alternative to the seriousness criterion in the 2004 Bill, because it is more specific and directs the clinician to the correct issue of patient choice and autonomy.

The vast majority of people with a mental illness, like those with a physical illness, retain in full their ability to make their own decisions throughout. They are treated by GPs or psychiatrists without being detained. Of those who are detained under the Mental Health Act 1983 some, as I have said, will also retain their capacity. A recent study found that 15 per cent. of detained patients, especially those who had been detained on a previous occasion, retained their capacity.

The authors of that report also found that a capacity test worked with a high level of reliability, which answers part of the point raised by the hon. Member for Stockport (Ann Coffey). The IDM test imposes a lower threshold, and does not apply to section 2 patients. If it were passed into law, I believe it would lower the percentage of detained patients who retain their capacity.

What are the consequences of failing to take account of decisions taken by a person who has insight into his condition and is fully capable of making a choice? I think that there are four. First, patients with full capacity come to resent their psychiatrists. As I said earlier, they tend to avoid their services for fear of being forced to have treatment that they do not want and which they believe may be harmful to them physically. That in turn can lead to them becoming more ill, with some slipping below the clinical radar or being deterred from presenting in the first place.

Secondly, patient outcomes may be damaged if personal decisions are not taken into account. Thirdly, patients may be harmed by treatment that may be unnecessary, and fourthly—and most importantly—stigma is increased. Failing to take account of vulnerable people’s decisions can, and does, destroy their trust in the medical profession, on whose members they rely for mental and physical health.

Inevitably, detention in hospital is a major disruption to a person’s life. In the context of the blame culture, in which every tragedy caused by a patient can potentially be attributed to misjudgments by a psychiatrist, psychiatrists often feel required to section patients against their better judgement or the best interests of those patients.

The predictable consequence of the present law is that people with full capacity can stay away from the psychiatrist because they can justify an irrational fear of being detained. In that sense, the law is totally counter-productive: as I have said before, we need patients to engage early.

Tony Zigmond, vice-president of the Royal College of Psychiatrists, has followed our proceedings very closely and I am sure that he is doing so at the moment. He has said:

“Enabling people to feel able to seek help early, to talk about their fears and difficulties, without fearing scorn, humiliation or loss of status, freedom, job and friends is the best way to bring about improvement in their health”.

As in other areas of medicine, the best outcomes are achieved when patients engage early, take a full and active role in their treatment and have trust in their psychiatrist or other professional. In that connection, the NICE guidelines on anxiety state:

“involving individuals in an effective partnership with healthcare professionals, with all decision making being shared, improves outcomes”.

Another aspect of the problem is the stigma felt by members of the black and minority ethnic community. They strongly support the new clause, and feel deeply stigmatised by the present law. The figures for the disproportionate detention and sectioning of people from the BME community bear out those fears.

Will the hon. Gentleman give way?

If the hon. Lady does not mind, I was going to end there. I wanted to make a number of other points but am conscious of the time, and I am also aware that she wants to make some comments of her own in support of the new clause. To ensure that she is not squeezed out, I shall finish my remarks now, save to say that the new clause should be added to the Bill as it is fundamental to our view of mental health legislation and to the need to respect people with a mental illness who retain capacity. I very much hope that the Minister will have a last-minute conversion and accept it.

I want to expand a little on the point I was making earlier, as I do not think I got a very satisfactory response.

I did not get a chance.

I gave the hon. Gentleman every chance: he just did not manage a satisfactory response.

The second set of provisions in chapter 3 is entitled “Consent to treatment”. Clause 27 deals with electroconvulsive therapy, for example, which can be administered only if an “approved clinician” has

“certified in writing…that the patient is not capable of understanding the nature, purpose and likely effects of the treatment”.

It is important that the same tests are applied in all parts of the Bill. The new clause would insert the new test

“that because of his”—

that is, the patient’s—

“mental disorder, his ability to make decisions about the provision of medical treatment is significantly impaired.”

That is different from the test used elsewhere in the Bill, which is based on the phrase “capable of understanding”. When challenged about whether the new test was the same or different, higher or lower, the hon. Member for East Worthing and Shoreham (Tim Loughton)—having being prompted by his colleagues in the Gallery—explained that it was a lower test.

That is not very satisfactory. The proposed additional test would be applied at a very important and significant moment in a patient’s life, and in the lives of his friends and carers. As a result of it, the patient would be compulsorily admitted to hospital for treatment of an underlying mental disorder that might be putting him or others at risk. It is not satisfactory for the hon. Member for East Worthing and Shoreham to be unable to say whether the test was higher or lower—

I said it was lower.

I am sorry, the hon. Gentleman did say that the test was lower. Will he say, then, by how much it is lower? How is it different from the test used elsewhere in the Bill? It is no use him looking at the Gallery, as I do not think that the people there will help.

Perhaps I can help my hon. Friend. The proposed test is different, as the term “capacity” relates to cognitive ability. The Scottish legislation deals with the matter adequately, holding that the concept of impaired decision making is separate from incapacity. The further factors that should be taken into account are set out in the Scottish provisions, with a patient’s impairment being measured, for example, by his ability to retain information concerning care and treatment, and to make decisions accordingly.

I thank my hon. Friend for that intervention, but the Scottish provisions are as yet untested. When the hon. Member for East Worthing and Shoreham introduced his proposal, he said that he had no evidence about whether it would work. Parliament has a responsibility to put good legislation on to the statute book, so I simply point out that his proposal is messy because there is no satisfactory explanation to show that it would operate any differently from tests in other parts of the mental health legislation.

In that case, why did the hon. Lady support community treatment orders yesterday? There is no evidence for their efficacy. She needs to be consistent.

The hon. Gentleman is proposing the new clause so it is his responsibility to explain what it means, instead of referring to some other aspect of the legislation.

I pointed out that a number of states already have an impaired decision-making test that has worked perfectly satisfactorily. There is no evidence that a capacity criterion would reduce the number of people under compulsory treatment, as the Minister claims it would. The Government object that the new clause might leave out people who need treatment. That might be true, but it is alarming to think that the state has reached the point that everyone deemed to need treatment should be detained if they disagree, which is what the Minister is trying to say.

I am sorry, but other countries have other mental health legislation; I am talking about the hon. Gentleman’s new clause. He has given no explanation of exactly what the test is and how it differs from the capability test in other parts of the legislation. Why should we adopt one test to judge whether a patient is capable of understanding the nature and purpose of the likely effects of electroconvulsive therapy, but an entirely different one when they are to be admitted to hospital under a compulsory order? It is the hon. Gentleman’s responsibility to explain that but he has not done so satisfactorily, so he does not deserve support for the new clause.

Unlike the hon. Member for Stockport (Ann Coffey), I support new clause 12, which is well reasoned. In previous debates in Committee, I would have been minded to support the Minister’s arguments if mental health problems were indeed static for a period of time. I know that the Minister holds in great respect Patrick Geoghegan, the chief executive of my local mental health partnership. He told me about a schizophrenic patient who could hold a rational discussion at one meeting but at the next would be kicking and screaming and making a mess of the office. It was deemed that the patient could make decisions about her future treatment and she voluntarily accepted treatment. As it was recognised that she had capacity to make decisions because she allowed herself to be admitted to hospital for treatment, logically she should be allowed to decide which treatment she did not want. She might know her own needs and her own body—for example, that a drug did not work well—much better than the clinician.

That is exactly the point. The patient the hon. Gentleman describes had allowed herself to be admitted to hospital. She had decision-making capacity even though she was very ill, and she entered hospital voluntarily. The problem would be if a person with the same medical condition, who had retained capacity and decided that they did not want to be treated, posed a danger to themselves or other people. Under the proposal the hon. Gentleman supports, that person could not receive treatment.

I understand the Minister’s point, but if a mental health patient has a different view about the effects of treatment and says that they do not want ECT or a particular type of drug—even if at a later stage a doctor or a second doctor says they should have such treatment—they should be treated exactly the same as someone with a more medical problem.

The hon. Gentleman needs to differentiate a patient’s ability to contribute towards decisions about their treatment, which they can still do under compulsion. We have made it clear that we want the Act to work in that way, but in the case he describes the person could not be detained under the Act and receive treatment because they would have retained their decision-making ability. They would not have impaired judgment, so they could not be detained under the Act to receive treatment. That is exactly the problem.

If the patient subsequently lost the ability to make a judgment, would doctors have to take their original decisions—made when they had full capacity—into account, even if they did not feel the decisions were in the patient’s best interests? Perhaps the Minister will clarify that point in her comments.

In an intervention on my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) I mentioned the Disability Rights Commission, which strongly supports the new clause and believes that if it is not accepted the Bill will be “highly discriminatory”. Has the Minister taken advice about the likelihood of legal challenges that the Bill is discriminatory?

We are talking about the status quo. Does the hon. Gentleman know of any cases brought by the DRC against existing legislation?

I was not able to meet the commission, which is why I asked other Members whether they had done so, and I do not have that information. However, the DRC says that the Bill is highly discriminatory. Those are strong words, which concern me, and I shall be further concerned if the Minister has not taken legal advice or discussed whether there is likely to be a legal challenge.

Finally, the British Psychological Society’s code of ethics and conduct requires psychologists to respect people’s right to self-determination. What will happen if the legislation requires health professionals to override the valid choice of a person with capacity? There is clearly a conflict of interest between the BPS code and the law we are trying to enact.

This is a serious issue. My hon. Friend the Member for Stockport (Ann Coffey) is concerned that we should have good legislation, but all the professionals who will have to implement the measure support the new clause. In fact, they would go further. The proposal applies only to section 3, not section 2, which covers initial admission for assessment. To some extent, I would prefer that the new clause applied to both sections.

All the professionals are familiar with the concepts involved, including fluctuation. Dr. George Szmukler’s memorandum to the Committee refers to the sustained resumption of capacity. One could envisage a scenario where someone who may have lost decision-making ability is admitted to hospital, gets well and recovers a degree of capacity. All those things can be taken into account, but the state of impaired decision making must not fluctuate. Similar provisions are in the Scottish measure, so I see no reason why they cannot work perfectly well, although I realise that there are issues relating to suicide, patient safety and public protection, which I shall address later in my speech.

Does my hon. Friend agree with the hon. Member for East Worthing and Shoreham (Tim Loughton) that this is a lower test than the test that is in the consent to treatment?

In one sense it is different, because if a person lacks capacity, it is a more or less permanent condition—such as in the case of a person with learning difficulties—whereas a person who may have a mental health condition can fluctuate between having impaired judgment to understanding and full capacity. It will be for medical professionals to make that judgment. They are well able to do so, and are willing and want to be able to apply this test.

I have listened to the explanations given by my hon. Friend and the hon. Member for East Worthing and Shoreham (Tim Loughton), and I am still very confused about the differences between the test of capability and this new test of impaired decision making. Even having heard my hon. Friend, I am still unsure. Does she agree that there would be quite a lot of confusion if two different tests were introduced, which might be tested in courts of law?

The professionals involved do not think that there is confusion, and there are briefings that explain it perfectly reasonably. I cannot find the exact page; I suppose I could read it out, but my hon. Friend has access to the briefings from the professionals involved, and I think that they are right. They are very comfortable with the new clause and the consequences that would flow from it.

As I am sure the Minister will argue in rejecting the new clause, if this test is introduced many of the people who are at risk of harming themselves or others may not receive the treatments they need. The original proposal came from the expert group, chaired by Genevra Richardson. We have her evidence to the Public Bill Committee, which the hon. Member for East Worthing and Shoreham read out. All this arose because the expert committee recommended a much wider definition of mental disorder, which we shall discuss later. One quid pro quo was that, while we had a wide definition, it would be narrowed in terms of invoking the concept of capacity—the concept of impaired decision making. That was the basis of Genevra Richardson’s recommendation. It was a fundamental principle that was crucial in relation to the stigmatisation of people with mental health problems, so before I return to the issue of protection of the individual or the public, I want to spend a few moments considering that.

Stigma against people with mental health problems is so endemic in our society that people are ashamed of admitting that they might have a mental health problem. I have recently been involved with the all-party group on ME, and people will bend over backwards to avoid any idea that they could have a condition that might have a psychiatric element, because of the stigma associated with it. The social exclusion unit pointed out that six out of 10 employers would not employ someone who had a mental health problem.

The stigma is endemic in our society. I know, because my father suffered from schizophrenia, and when I was growing up it was something that one was ashamed of. I could never tell my friends that my father had schizophrenia. I could not take people home, because of his behaviour. People will not talk about mental illness. The situation is getting better, but the stigma is still endemic in our society.

We have been talking about public protection, and about preventing people from committing suicide. The most important thing that could be done to help us achieve public protection and protection of the individual would be to remove the stigma associated with mental ill health, which prevents people from coming forward because they do not want to admit their feeling that they may have a mental health problem. That, to me, is a crucial aspect of the Bill. A lot of the discrimination that would appear to be in the system, and the greater use of compulsion for people from black minority ethnic backgrounds, can be attributed to the fact that the stigma is even greater in some of our ethnic communities. In fact, when relatives do eventually refer a family member for help, they usually refer them to the police rather than to mental health services, such is the stigma associated with mental ill health. Genevra Richardson put it much more effectively than I can when she explained why she recommended that a judgment should be made about impaired decision making.

The Minister has given examples where she thinks that people who are suicidal may be deemed not to have impaired judgment, and therefore may not receive the compulsory treatment that they need—for example, if they are very seriously depressed. There is some difference amongst clinicians. Some clinicians say that as a result of the impaired decision-making requirement a very few people may not receive treatment; but the General Medical Council says that although a person who is suicidal may have capacity to make decisions, their ability to make decisions about medical treatment for their mental disorder is impaired because of their express desire to commit suicide, or the concern that they may do so.

I have to disagree with my right hon. Friend the Minister. In my opinion, someone who is suicidal because of a mental health problem—not perhaps someone who wants to commit suicide because they are terminally ill; I would distinguish between the two—does display seriously impaired judgment, and I believe that most clinicians would take the view that such a person had impaired judgment and would require them to have treatment.

The expert committee recommended that an exception be made for people who may be a danger to the community. The Minister correctly points out that that situation is not catered for in the new clause, but I say to her, so crucial is this in relation to the need to combat stigma that I hope she will accept the amendment as currently worded, but seek to make appropriate modifications in another place that could take into account the recommendation of the expert committee.

In most of the cases where homicides have been committed by people with a mental health problem, the issue of impaired judgment would not have made any difference. Some were already subject to treatment; I cannot recall specific names, but there were people who were already under restriction orders, and their risk was inadequately assessed when they were released. The question did not relate to capacity; they were known to be dangerous. In many other cases, the failure of mental health services and the lack of co-ordination between different teams, and between social and health services, in providing for those patients led to the tragedies.

I am going to try to simplify things. The Mental Health Act 1983 laid down two conditions for detention: severe mental illness, and being a danger to oneself or others. Severe mental illness was defined as

“illness severe enough to require hospital treatment”.

That is a slightly unsatisfactory definition because it is culturally relative and in 1983 there were not the same alternatives to hospital treatment as there are now. None the less, the common law understanding and interpretation for more than 34 years has been that sectioning or detention requires a person to be severely mentally ill—no one can seriously doubt that. The second requirement is that one is a risk to oneself—the obvious example is suicide—or a risk to others, up to and including homicide. There is no doubt about that either.

The new clause—following the amendment in the Lords—adds a further criterion: impaired judgment. Initially, that sounds attractive, on the sound legal principle that people without impaired judgment ought not to be detained against their will unless they have done some provable wrong. However, that leaves us with the crunch question: what happens to people who are severely mentally ill, suicidal or homicidal, but who have unimpaired judgment? Several answers have been given. One answer given repeatedly is that there are no such people; it is a null class. Mentally ill people who are suicidal or homicidal necessarily have impaired judgment. That is a good answer, but it renders the new clause entirely redundant, because anyone who meets the original criteria for detention—someone who has a severe mental illness and suicidal or homicidal tendencies—meets the impaired judgment test as well. The new clause would therefore be logically superfluous, if cosmetically attractive.

Is my hon. Friend certain that the criterion is that someone is suicidal or homicidal? He is using shorthand. The threshold is somewhat less than that. He should not presume that all cases will use that criterion, rather than some lesser criterion of potential risk to oneself through neglect, for example.

Yes, but nobody would get sectioned because they did not wash themselves well or something like that. People normally get sectioned only when they face a serious emergency and the physician feels that action must be taken.

I have come to the conclusion that for the case for the new clause to be maintained, we must believe that there are some severely mentally ill people who are a risk to themselves or others, but who have completely unimpaired judgment, or, at any rate, do not have significantly impaired judgment. It might be asked: who are they, how many of them are there, and how easy are they to single out given the lack of a universal or legal understanding of the impaired judgment criterion? Nothing I have heard today has satisfied me that we are using a particularly clear criterion or that we have a general agreement about it.

It also might be reasonably argued that letting people who are suicidal commit suicide if we think that they have unimpaired judgment is a fair price to pay for allowing them to retain the civil rights that we allow to all people who have unimpaired judgment. I call that the heroic civil liberties argument. That argument has been put and I respect and understand it, although I do not share it.

Further reflection has led me in a different direction. While I was trying to figure out who was in the category of mentally disordered, potentially suicidal people with unimpaired judgment, it was suggested to me by one of the measure’s proponents outside the Chamber that a mentally ill person might be suicidal because of unconnected things such as bankruptcy or terminal illness—the kind of things that would make a rational person consider suicide. However, we are talking about people who have a severe mental illness—an illness that haunts the mind, infects every mood, for most people permeates every waking moment, and spreads its dark shadow over all their actions. We are talking about people who are, in general, being ripped apart by their emotions. That is why they get themselves sectioned in the first place. I simply asked myself whether such a person could dispassionately and rationally evaluate the state of their finances or their health prognosis—or anything of that major nature—uncoloured and unimpaired by, and immune from, the emotional storms within them.

To believe in such people seems almost to ignore the depths of suffering and confusion found among people who get themselves sectioned. It fails to recognise what those people are dealing with. Catholics such as me are supposed to believe six impossible things before breakfast, according to Chesterton, but I cannot summon up sufficient credulity to believe in this state of affairs. It defies my imagination and exceeds my current grasp. Even if we accept that a seriously mentally ill person who is a danger to themselves and has unimpaired judgment is a logical possibility, their existence is highly improbable and we are very unlikely to meet any such person.

I thus conclude—this may be a charitable conclusion that pleases everybody—the same thing that Baroness Murphy concluded in the Lords: whether the new clause is passed or rejected will make no real difference to the practice of psychiatry. We can relax.

In supporting the new clause, and following on from the hon. Gentleman’s question about who the people who retain capacity are, I want to put on the record that a study published in The British Journal of Psychiatry in 2005 identified that 15 per cent. of patients detained under the Mental Health Act retained their capacity. That was particularly true of those who had been detained previously. Ignoring that group of people has real consequences. One of them was identified by the hon. Member for Birmingham, Selly Oak (Lynne Jones), who has great expertise in this subject. Stigma will be increased. There is also an effect on the relationship between the patient and clinician. Patients’ outcomes are damaged. All that would be addressed by the new clause.

I want to come on to some of the issues raised by the hon. Member for Stockport (Ann Coffey) a little later. I had real concerns about this aspect of the Bill right at the beginning, not least because of some of the examples that the Minister used on Second Reading and other occasions, and the consequences that have been touched on by other Members tonight, particularly in respect of those who might be potentially suicidal or a danger to others. I was particularly concerned about those who fall into the category of potentially suicidal, because, at one point, the argument appeared to be that, if they had capacity and it was their decision not to be treated, they should be told to go on their way, with the obvious catastrophic consequences. However, I have to tell the Minister that having made a particular effort to satisfy myself on this point, I now believe that that would not be the case because I do not think that any clinician would stand by and allow a person to commit suicide, or to be a danger to others. A person’s wish to die would be a consequence of a mental disorder, so in such circumstances, the clinician—

indicated dissent.

The Minister shakes her head, but surely clinicians must make such decisions every day when dealing with potential suicides. Of course, potential suicides are not only people who are crying out that they wish to end their lives. People who are deadly earnest about taking their lives—I am not putting people who choose to end their lives because of a terminal illness in this category—and are determined to do so often deploy all sorts of devices to try to conceal the decision that they have made. Clinicians have to make judgments today about whether such complicated people are intent on taking their lives. I see no reason to go along with the Minister’s suggestion that new clause 12 would deny clinicians the ability to make a judgment. If a person was considered to be a danger to others because he or she wished to kill someone else, that intent would be a symptom that the person was seriously unwell. The medical profession makes clinical judgments about such matters today, so I do not understand why new clause 12 would affect the situation.

When the Minister objected to such a measure in the past, she prayed in aid the example of an anorexic patient. However, clinicians tell us that someone with anorexia who believes that she is fat clearly has disordered thinking and thus has an impaired decision-making ability. I am satisfied that the concerns about the consequences of such a measure that the Minister outlined on Second Reading have been addressed. Patients in the situations that she described would be sufficiently protected.

This is a difficult area, especially with regard to the terminology used. We have discussed the difference between significantly impaired decision making and capacity or incapacity. The hon. Member for Birmingham, Selly Oak said that that had been outlined succinctly and thus denied herself the opportunity of sharing it with the House. I hope that you will indulge me, Mr. Deputy Speaker, if I share with the House the Scottish Executive’s code of practice on the Mental Health (Care and Treatment) (Scotland) Act 2003, which deals with this exact point. That Act is already in force and is being used every day.

The code of practice states that the concept of “significantly impaired decision-making” is

“separate to that of ‘incapacity’…However, when assessing a person’s decision-making ability, it is likely that similar factors will be considered to those taken into account when assessing incapacity. Such factors could involve consideration of the extent to which the person’s mental disorder might adversely affect their ability to believe, understand and retain information concerning their care and treatment, to make decisions based on that information, and to communicate those decisions to others…One difference between incapacity and significantly impaired decision-making ability”—

the subject of new clause 12—

“arguably is that the latter is primarily a disorder of the mind in which a decision is made…on the basis of reasoning coloured by a mental disorder. Incapacity, by contrast, broadly involves a disorder of brain and cognition which implies actual impairments or deficits which prevent or disrupt the decision-making process”,

which is something that the hon. Member for Birmingham, Selly Oak referred to. These are nuances—some might say that this is dancing on the head of the pin—but I think that the Scottish code of practice sets things out clearly.

Does not the hon. Lady agree that it would be better if the same terminology was used throughout the Bill? She has gone to a lot of trouble to try to explain slight differences between what phrases might mean. However, confusion would be created by accepting a new clause that used an entirely different phrase. That would be important, given that the Bill will be interpreted by the courts.

This is my fifth year of studying the reform of the Mental Health Act 1983. I served on the scrutiny Committee and, like the hon. Lady, on the Public Bill Committee. I and many others have urged the Minister to use the Scottish Act as a blueprint for the legislation for England and Wales. If she had done so, we might not be dealing with such differences today. We could simply have lifted a lot from the Scottish Act and put it into our legislation, including the principles in the Bill. However, for an extraordinary reason that I still do not understand, the Minister and her team rejected that proposal, and the Bill is the poorer for it.

I will take only a few minutes because I understand that the Minister will want time to respond to the debate. However, I want to deal with a couple of points that were raised. I realise that I was not a member of the Public Bill Committee. Many hon. Members who have participated in the debate have taken a great deal of interest in the Bill and have spoken about its details with knowledge. I speak for no one but myself.

The hon. Member for Stockport (Ann Coffey) claims that given that there is a definition relating to capacity in clause 27—she said that that measure related to consent to treatment, but it is actually on electroconvulsive therapy—any other definition in the Bill relating to capacity should use the same wording for the sake of consistency. However, that would be wrong, because it would mean that the test for admission would be the same as the test for ECT. As she probably knows better than me, given that she has followed the Bill’s passage, the architecture of the Bill is such that ECT has a higher threshold of incapacity than mere sectioning because anyone who was sectioned could otherwise have ECT administered to them. Although there might be merit in pure consistency, the example that she cited did not work because her point would undermine the separate threshold for ECT that exists for not only historical reasons, but clinical ones.

Is it the hon. Gentleman’s understanding that the impaired judgment test would use a lower threshold? If that is the case, will he kindly explain how low the threshold is?

The threshold is lower because I do not think that the supporters of new clause 12 would want people sectioned under the Mental Health Act 1983 to qualify automatically for ECT. Although the hon. Lady might not agree with me, I hope that she has received an explanation of her point from this side of the House.

Let me deal with the interesting challenge that the Minister gave the hon. Member for Rochford and Southend, East (James Duddridge). He deflected the challenge somewhat, but I am happy to meet it head on. I think that the hon. Member for Birmingham, Selly Oak (Lynne Jones), who spoke superbly, as she always does on such matters, also would have done so. The matter was dealt with eruditely and logically by my hon. Friend the Member for Southport (Dr. Pugh), who has a PhD in logic.

The point to make is that it is possible to want to end one’s life or to have one’s life ended without necessarily having impaired judgment. It is also possible to have a mental illness as well. I shall describe two scenarios. If someone is terminally ill, they may reject immediately life-saving heroic treatment because they know that they are going to die and they want to exercise their autonomy and be allowed to die, not to have their life saved if they know they are going to die or suffer. Indeed, they may seek something that is unlawful in this country at present—assisted dying, which has never been opposed on the grounds of being irrational. It has been opposed for other reasons, which we cannot discuss now.

That is one scenario. It is possible in that scenario for the person to be depressed as a result of their terminal illness, and/or it is possible for the person to have a serious mental illness anyway, whether or not it is depression. Just because someone rejects non-mental treatment because they wish to die or end their life, which may be considered suicidal, does not mean that they should be sectioned. That is why a test such as the one proposed in the new clause in that small minority of cases would add extra confidence and insurance against what otherwise might be deemed to follow automatically—that is, sectioning—because the person is suffering from a mental illness, which makes it appropriate for them to receive mental treatment in a hospital for that illness, and to protect them from taking actions that might end their life. There is a case that the Minister must address, which the new clause seeks to do.

There is also the case—for reasons of brevity the hon. Member for Birmingham, Selly Oak did not go into it in as much depth as she might have done—about non-discrimination. People who refuse treatment that is life-saving and who are not terminally ill are entitled to do so if they retain capacity to do that. So a patient might, without not having capacity, refuse to have a big operation that a doctor would recommend and that would be life-saving. That does not mean that they are being irrational, that they do not have capacity or that their judgment is impaired. We do not force such physical treatment on them for their physical ailment.

As for people with a mental illness, although we must take care that we act in their best interests and I recognise the difficult judgments to be made, we should not presume—it goes to the stigma—that they have impaired judgment if they are not looking after themselves or have an intention that their life should end sooner rather than later.

It is vital that we ensure that people who have a severe mental illness and as a result of that are suicidal, are able to access treatment. I am satisfied, as I think my hon. Friend the Member for Southport was, that the new clause would not prevent that. It may help cope with stigma and raise doubts in the minds of people who might otherwise automatically seek to impose compulsory treatment on people with mental illness. It represents an extra test that might prevent unnecessary restrictions of liberty where that is not appropriate.

I know plenty of people who have rightly been sectioned, who are not suicidal but who are self-neglecting to the point of infestation and to the point of malnutrition, who have a severe mental illness. I have sought in my medical practice to have them sectioned. A test of suicidal intent is not required. That was the point that I made to my hon. Friend the Member for Southport during his important contribution.

For reasons of addressing stigma and of identifying a group of people who, if the new clause were not in the Bill, might be compulsorily detained for treatment, who need not be detained and for whom it would be inappropriate, and in order to ensure that we as a House recognise the need not to discriminate—discrimination law is changing all the time and the Government have just proposed consultation on discrimination law, and if the Bill goes through unamended in this place that will put the Government on the wrong side of that case—I will support new clause 12 in the Lobby tonight.

With the new clause we are back on familiar territory. An amendment was inserted originally in the other place, which we took out in Committee, and it has been reintroduced today by the Opposition. It will not surprise them to know that I do not agree with the proposal in the new clause. I understand many of the points that have been made during the debate. I know that we are dealing with a sensitive issue. I listened carefully, as always, to my hon. Friend the Member for Birmingham, Selly Oak (Lynne Jones). I shall reiterate what we are trying to achieve through the Act, which is a sensitive piece of legislation because it affects extremely vulnerable people. It deals with their protection and the protection of others.

The primary purpose of the Mental Health Act is to provide an effective, properly safeguarded mechanism by which clinicians can intervene to protect people from the risks of mental disorder, where that is necessary. There are clear criteria for detention under section 3: first, that the patient has a mental disorder which makes medical treatment in hospital appropriate; secondly, that such treatment is necessary for the patient’s own health or safety or the protection of others; thirdly, that detention is the only way to ensure that the patient gets the treatment; and, thanks to the Bill, that appropriate medical treatment is available. We discussed that earlier today when I accepted the compromise amendment.

The new clause would introduce a new test which would subordinate issues of necessity and risk to the question of the patient’s decision-making ability. It builds on provisions that we have been working with since 1983. Detention should be based on whether the patient is at serious risk of harming themselves or others. What the new test would mean is uncertain, as it is unprecedented in English law. [Interruption.] I remind hon. Members that we are in an English jurisdiction.

I understand that the supporters of the new clause argue that if the patient understands that they have a mental disorder which can be treated, and understands the treatment on offer but decides to refuse it, as long as their decision has not been distorted by their mental disorder there can be no compulsory intervention, whatever the risk to the patient or anyone else. We must be clear that that is the intent of the new clause. It has been interesting to hear the debate today about whether that would mean that some people could not be treated. I am clear that some people who are treated now would not be treated under the proposal, because their decision to leave themselves or other people at risk would take precedence.

That is the intention of the new clause. What are the reasons behind that? Let us consider some of the statements that have been made by the Opposition. I shall read into the record what has been said about the new clause. In the other place the Front-Bench spokesperson for the Conservative party said:

“My view is that if the risk they pose is to themselves, the law and the state have no business interfering in their lives; and if the risk they pose is to others, they are or should be the province of the criminal law.”—[Official Report, House of Lords, 10 January 2007; Vol. 688, c. 233.]

That was the view expressed in the other place—that the state has no business to interfere. This goes back to arguments that the hon. Member for Oxford, West and Abingdon (Dr. Harris) made in asking why there is a distinction between what would happen with a physical illness and what would happen with a mental illness. There is a clear distinction. First, the person must have a mental disorder in order to be detained. Secondly, they must be a risk either to themselves or to others. Thirdly, detention has to be necessary and appropriate medical treatment has to be available. That is why there is a difference. We are talking about an individual who is going to commit self-harm or suicide, or harm others.

I have a lot of respect for Earl Howe, but I do not tie myself to what he said. I agree with what the hon. Member for Birmingham, Selly Oak (Lynne Jones) said. It can never be rational to desire to inflict harm on others outside the boxing ring or the battlefield. If the Minister were to agree with the hon. Member for Birmingham, Selly Oak and say that the Government would table an amendment in another place that excluded that side of things from the test, which is otiose in such circumstances, I would accept that position. I ask the Minister please not to label those of us who take such views with words, whether or not they are correctly extracted, from a peer in another place—I can speak only for myself, but I suspect there are others.

So the hon. Gentleman is now saying that he accepts that we should not allow people to harm others, but that we should allow people to harm themselves. That is the obvious logic of what he has just said.

No.

I shall certainly give way to the hon. Gentleman if he can tell me why he feels that it is okay to prevent people from harming others, but not to prevent them from harming themselves.

The reasons are the same as those for which we do not impose physical treatment on patients who have capacity and do not have impaired judgment, but who reject physical treatment, even when it might save their lives. There will be very few patients with mental illness who do not have impaired judgment—I accept that point—but there will be some, and why should they be treated differently? We have to act proportionately, and I think that the proposed arrangement would give a fair balance in the case of self-harm.

Okay, we are now down to saying, “Let’s treat it in the same way as we treat physical illness.” The hon. Gentleman therefore wants a new threshold, and he has now accepted that there will be people who will not be treated if the House agrees to what is proposed. Effectively, we would be saying that we did not want such people to harm others, but that it was fine that they could go away and commit suicide, even though they had a mental disorder and were a risk to themselves. It is sometimes quite difficult to work out whether somebody is a risk to themselves or to others; most clinicians will say that it is difficult to make the distinction. The hon. Gentleman is therefore introducing a difference between two groups, but I would say that that is quite difficult to do. We would be saying that, although appropriate medical treatment was available, a new test meant that people would be excluded from treatment. We need to be clear that that is what the House is now considering and what would be brought about.

The Minister has not identified who those people are. How will she predict who will be a serious risk to themselves or to others? She is not able to do that. In the definitions that I gave yesterday in respect of victims’ rights, the point that I was making absolutely clearly was that we should do everything we can to make sure that people do not get into such a desperate state that they commit ghastly acts to others or themselves. The point of the new clause is to ensure that they are not discouraged from presenting early so that they can get the help voluntarily or compulsorily to ensure that they do not reach that desperate stage.

Once again, the hon. Gentleman needs to look at the amendments that he is tabling. There is nothing in what he proposes that would bring people forward for treatment earlier. I would like to pick him up on that point. I think that the hon. Member for Tiverton and Honiton (Angela Browning) was hoping to avoid future criticism by saying that there would be sufficient protection to ensure that everybody who was covered at the moment would be covered in future.

rose—

If the hon. Lady is not saying that, that is fine; I shall give way to her.

The point that I was making is that these matters come down to judgments on the part of clinicians. They will have those difficulties with or without the proposals. As my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) was saying, the idea of predicting with absolute certainty that, for example, somebody is going to go out and commit a homicide, having not done so before, is not credible. The Minister knows the figures; she has heard them from the Royal College of Psychiatrists. We would have to lock up and detain 5,000 people even to come close to finding one who just might do it.

But the hon. Lady knows that we already detain people.

Not on that scale.

No, not on that test, because the test does not exist at the moment. The hon. Lady would be introducing a new test ensuring that people who get treatment at the moment will not do so in future. She must accept that.

Let me cite what the hon. Member for East Worthing and Shoreham said earlier in this debate. He said that very large numbers would have impaired decision making. He then said that some people would retain capacity, and quoted a study that said that 15 per cent. of people under detention retained capacity. He then said that the IDM test is a lower percentage, so there would be much lower numbers who could not be detained as a result of the proposal. [Interruption.] He said that the IDM test is a lower percentage, so let us look at the percentages. Let us look, say, at what would happen if 10, 5 or 2 per cent. of people could not be detained, and at what we are talking about in figures—real people who would not get treatment in future. There were some 22,500 detentions in England for treatment under section 3 in 2005-06. If 10 per cent. of those were ruled out, 2,250 people would not get treatment; 5 per cent. would be 1,125 people; and 1 per cent. would be 225. Those are real people who would not get treatment under the hon. Gentleman’s proposals.

They are not real people. Those are completely hypothetical figures that the Minister is characteristically using to try to caricature the case that is being put to her. I referred to a lower threshold. I also said that there is no evidence that she can produce that the numbers subject to compulsion will be higher or lower as a result of the proposal. What I did say is that people will be less deterred from presenting to receive the help and support of services, which we want to encourage them to do.

I am afraid that the hon. Gentleman needs to look at the record tomorrow, because he said that the percentage would therefore be lower. The percentage who would qualify under the impaired decision-making test for not being detained is shown in the figures that I have given. He must accept that. [Interruption.] What percentage of people does he think would not be detained? Given that he says that large numbers would have impaired decision making, how many people does he think it acceptable not to give treatment to?

It is about not imposing treatment.

Yes. We are talking about compulsory treatment. That is exactly the point that the hon. Member for East Worthing and Shoreham was making. He believes that if an impaired decision-making test were introduced, some people would not get treatment. In that case, I ask Conservative Members how many people is an acceptable number to be turned away from treatment. Such people would be either suicidal or a danger to others. What number would be acceptable?

That is scaremongering and disingenuous argument of the worst kind. Which bit of the statement “There is no evidence to suggest that the number subject to compulsion would be higher or lower under an impaired decision-making test” does the Minister not understand? On which bit of that statement is she trying to misrepresent me?

Order. The hon. Gentleman should not use such terminology in the House. Perhaps he will withdraw that remark.

I will, of course, withdraw “misrepresent”, but there is still some confusion about what I have said, which I would like the Minister to explain.

I am confused, because the hon. Gentleman has distanced himself from the points made by the Conservative spokesperson in the Lords. If he is distancing himself from what was said in the House of Lords, that is fine, but earlier he said that a very large number would have impaired decision making and therefore admitted that some would not have impaired decision making.

The hon. Gentleman asked about the evidence on whether some people would not be treated.

Will the Minister give way?

I want to address some of the submissions about who would or would not get treatment. As I have said, it is important to admit that there are people who would not get treatment.

I have received a letter, which I know the hon. Gentleman will reject, signed by a number of eminent psychiatrists. It states:

“It is not possible to say that because a patient has a particular condition, they necessarily will (or will not) have impaired decision-making. People differ. Their circumstances differ. Even the fact that two people are diagnosed as having the same mental disorder does not mean they will experience or be affected by it in the same way. While impaired thinking is a common feature of mental disorder, impairment of the ability to make treatment decisions specifically is not, of itself, a criterion for diagnosing mental disorder, or any particular mental disorder. For example:

Patients with a long-standing diagnosis of schizophrenia or severe depression, with a history of detention at times of acute illness resulting in high risk. These patients will usually have impaired decision making when in relapse but as they recover this may no longer be the case. They may, however, not be prepared to accept that they have been ill or to accept the need for treatment. As a result, if we had an impaired judgment test, the psychiatrist would be unable to use Mental Health Act powers to continue treatment—until a further relapse occurred.

Patients with borderline personality disorder who do not have impaired decision-making, but who have a high risk of serious self-harm at certain times, and for whom the psychiatrist may well think that hospitalisation is needed during a crisis. Those patients may well understand the treatment that is being offered and the consequences of refusing it, and they may talk in a clear-headed way about committing suicide. If we had an impaired judgment test, the psychiatrist would be unable to intervene.”

We know that young women with borderline personality disorders who have a history of abuse, whether sexual, physical or emotional, want to commit suicide at times of crisis, but they understand the options. The hon. Gentleman’s new clause means that we, as a society, would say, “We are not going to treat you under the Mental Health Act.” There is absolutely no doubt that that would happen.

The British Psychological Society is in favour of an impaired decision-making test:

“We recognise that this approach may mean that a very small number of people believed to be at risk of self-harm or suicide would be permitted to refuse treatment if their decision-making was not considered to be significantly impaired.”

It has said that the new clause would allow some people to go out and commit suicide, which Labour Members find unacceptable.

rose—

I hope that the hon. Gentleman will tell me how many people whom we treat now it is acceptable not to treat.

Does the Minister think it acceptable that 1,300 people commit suicide now? If it is all so rosy under her proposals, why are 1,300 not being prevented from committing suicide now?

That is a ridiculous argument. The hon. Gentleman has said that we should prevent people from committing suicide, but he has tabled a new clause that would increase the likelihood of its happening. His policy is to accept this Government’s suicide prevention strategy, which includes measures in this Bill to ensure that we can get treatment to people when they need it. He has admitted that the new clause would allow people who are a risk to others to go out into the community in unsafe circumstances, because it does not discriminate between people who are a danger to others or a danger to themselves, as my hon. Friend the Member for Birmingham, Selly Oak has said.

We cannot accept the new clause, because it would lead to more people being allowed to go out and commit suicide, more people not getting treatment and a greater danger to the public, too. I urge my hon. Friends to reject the new clause.

The Minister has used her usual tactics of trying to confuse the Opposition into submission. Why is it that the Royal College of Psychiatrists, the BMA, Dr. Genevra Richardson, the British Psychological Society, the pre-legislative scrutiny committee, black and minority ethnic groups and the Disability Rights Commission are wrong and she is right?

It being two and a half hours after commencement of proceedings on the motion, Mr. Deputy Speaker put forthwith the Question already proposed from the Chair, pursuant to Order [18 June].

Question put, That the clause be read a Second time:—

I beg to move, That the clause be read a Second time.

With this it will be convenient to discuss amendment No. 88, page 39, line 20, in clause 41, at end insert—

‘(4) In section 135(6) for the words from “means” to the end of that subsection substitute—

“(a) (i) residential accommodation provided by a local social services authority under Part III of the National Assistance Act 1948 (c. 29),

(ii) a hospital as defined by this Act,

(iii) an independent hospital or care home for mentally disordered persons,

(iv) any other suitable place the occupier of which is willing temporarily to receive the patient or, if, in the circumstances of the case it is impracticable to use any of these places,

(b) a police station”.

(5) In section 136 (Mentally disordered persons found in public places) of the 1983 Act after subsection (2) insert—

“(3) Where a police station is used as the place of safety the person may not be detained there for a period longer than 24 hours.”’.

We have only a little time left to consider the final groups of amendments, and I am sure hon. Members who wish to participate are especially keen to comment on the exclusions from mental disorder provisions in the second raft of amendments. I shall therefore speak only briefly about the first raft, and mainly about new clause 11. My hon. Friend the Member for Broxbourne (Mr. Walker) is keen to catch your eye, Mr. Deputy Speaker, to discuss amendment No. 88.

The British Association of Social Workers has supported and provided briefing notes for the new clause, which covers warrants to search for and remove patients. It would update the 1983 Act, which is out of date and causes some problems. Section 135 of the 1983 Act allows magistrates, on the application of an approved social worker, to issue a warrant when it is necessary to gain access to private premises to assess someone for possible admission under the Act. Warrants are requested far more often than they were.

In addition, court procedures have been tightened up, and the approved social worker now needs to make a formal application to the court, supported by written evidence. That has served to highlight the shortcomings of section 135, which does not reflect the whole range of circumstances in which warrants are needed and, indeed, issued, forcing approved social workers and magistrates to bend the law to ensure that access can always be gained to someone who is in urgent need of admission to hospital. The reason is that the section basically dates from the Lunacy Act 1890 and the Mental Deficiency Act 1913. It has never been updated to conform with modern needs and circumstances.

The section provides for a warrant to be issued in only two circumstances: when the person lives alone and is unable to care for themselves, and when the person does not live alone but is being

“ill-treated, neglected or kept otherwise than under proper control.”

It covers only whether the person is cared for, not whether that person needs treatment or is a danger to themselves or others. That is because, back in 1890, there was no treatment. If there was a danger to self or others, it was assumed that the police would use common law to gain entry. However, their common law powers are greatly circumscribed by section 17 of the Police and Criminal Evidence Act 1984, which allows them to enter only in dire emergency

“for the purpose of saving life or limb.”

If, therefore, someone who lives alone harbours paranoid beliefs about their neighbours but can still care for themselves, the professionals have no power to gain access to them to assess the need for admission. They must effectively wait until an assault has been committed and that person can then be arrested. By the same token, a warrant cannot be obtained when the person is living with someone else who does not neglect or ill treat them, even if that someone else is a child, infirm or unable to allow access. In some cases, family members, far from ill treating or neglecting the mentally disordered person, are concerned about them and desperate for them to receive treatment but are too frightened of them to let the police and the professionals into the house against their wishes. A high proportion of cases in which access is plainly justified do not fulfil the existing criteria, forcing approved social workers to misrepresent circumstances to obtain a warrant.

We have modified the new clause since it was first debated in the Lords to tackle a valid objection by the Minister in the other place that it deleted an existing power to obtain access to someone who needed care other than for mental disorder. The new clause now retains existing powers but deletes the stigmatising phrase “not under proper control”. As a witness to the Joint Scrutiny Committee put it, inclusion of the phrase made it sound as though we were talking about dogs.

The new clause now provides for access to be gained in any circumstances in which it is necessary for the professional to carry out an assessment for possible admission under the 1983 Act. However, it also imposes a new restriction that a warrant can be granted only when it has not been possible to gain access without one. That is designed to prevent the widespread misuse of the current system whereby the police insist on obtaining a warrant even when access has not been denied or it is not certain that that will be the case.

We believe that the restriction would require the approved mental health professional to demonstrate to the magistrates that all reasonable efforts had already been made to gain access by non-forcible means. It is therefore likely that the new clause would reduce rather than increase the number of warrants issued. Lest there is a concern about increasing the range of circumstances in which the police can enter private property, it should be noted that clause 228 of the 2004 draft Mental Health Bill—may it rest in peace—which the Government abandoned more than a year ago, contained much greater powers for the police to enter private property by force without a warrant, and purely at the request of an AMHP in circumstances in which a person was in urgent need of care and control to prevent him from causing serious harm to himself or others. Even the extension of police powers that the new clause proposes would not extend as far as that, as a case for forcible access would always have to be made in the magistrates court.

The new clause is slightly technical but the law is clearly out of line with current practice and I hope that the Minister will accept it in the constructive and positive way in which I move it.

I rise to move amendment No. 88. I have never moved an amendment in the House before and I cannot think of a better one with which to start. [Interruption.] Am I not speaking about amendment No. 88? Am I not on the right track? I appear to be causing hilarity.

Order. The hon. Gentleman may speak about amendment No. 88, but he is not moving it at this time. At the moment, only new clause 11 is being moved. If and when there is any question of a vote on amendment No. 88, the hon. Gentleman may move it formally.

Thank you, Mr. Deputy Speaker, for your guidance. In my excitement, I was getting ahead of myself. I shall try to stay within the bounds of parliamentary protocol.

Amendment No. 88 is designed to change the definition of a place of safety so that, as far as possible, it is not a police cell. Too often, people who have a mental episode that results in a disturbance or act of violence end up in a police cell. As far as possible, we would like to ensure that a place of safety is actually in a therapeutic environment. If that is not possible, however, we would hope that within 24 hours of someone being placed in a police cell after an episode of mental illness, they would be found a place in a therapeutic environment where they could receive appropriate care.

I believe that the amendment is hugely important because it sends out a message about how we regard mental illness, which is not a crime. In certain cases, it may drive people to commit acts that could be perceived to be criminal or, indeed, are criminal, but mental illness in itself is not a crime.

I have personal experience of being around people who have had extremely violent and aggressive episodes of mental illness, and I have to say that it is very frightening, but I can say now, with hindsight, that a police cell is not what these very ill and sick people need. It really is not. The police are not trained to be the jailers of the mentally ill; it is outside their range of competence. They are not skilled at managing the symptoms. The police are not clinically trained. I would have thought that locking someone up in a police cell could only add to the trauma and make that sick person even sicker.

If we do not progress with the amendment, I hope that the Minister and others will look further into the way that mental illness is approached in the community, particularly by the police, and try to find ways of ensuring that when the police are confronted with a violent mentally ill person, they can recognise the situation and call on the help of clinical experts to help them to manage it—[Interruption.] I suspect that my hon. Friend the Member for Buckingham (John Bercow) is getting agitated, so I shall give way.

Does my hon. Friend agree that warm words, though very welcome if forthcoming from the Minister, will not on this occasion suffice? We need some sort of formal commitment that mentally ill people will speedily be put in a place of safety other than a police cell. Very often, they will not be able to give voice to their own anxieties. They look to this House to protect them—and protect them we must, otherwise there is a real danger of what I would call careless and accidental incarceration or careless cruelty. We have a responsibility to avoid that.

My hon. Friend makes an excellent point in his usual eloquent way. The amendment would allow the House to send a message to people who are mentally ill that we care about their welfare and about alleviating their troubles and that we want to ensure that, in as many cases as possible, they are in places that best meet their needs as ill people—as patients.

I recall describing in Committee something that happened in my constituency, but I shall not go into it in detail again. It concerned a young girl of about 14 who was having a violent episode. I was with the police on that occasion and we were called to the house. It sounded as though there were about 30 people in that house, throwing things, screaming and yelling, but it was actually just one tiny 14-year-old girl. This little girl was walked out in between two policemen. I cannot remember whether she was handcuffed—I hope she was not—but she was put in a police car and taken to a police station. I, a totally untrained observer, could recognise that the girl was mentally ill. What was happening to her was completely and utterly not in her interests. It was a moving experience for me. By accepting this amendment, I hope that we can ensure that such circumstances are kept to the absolute minimum in future.

In providing a therapeutic environment, we must strike the right balance between having beds and community facilities. I know that there is a big move to close beds and move services, particularly day services, into the community, but in many cases we still need beds and secure places for such young people.

Is there not another practical point? We heard from the Ministry of Justice today that police cells are going to be used for criminals because there are not enough places in our prisons. If we have a Ministry of Truth in a few days’ time, perhaps it will be honest enough to admit that there will not be enough room in police cells for this, so we need something better.

I understand where my right hon. Friend is coming from. It is just not right to take people who are mentally ill and put them in police stations and in police cells next to criminals. If we are serious about ending the stigma attached to mental health, this is one practice that we should stop as soon as possible.

Does the hon. Gentleman recognise that the police would have great difficulty if they arrested a drug addict who was also mentally ill? The police would probably see the drug addiction beyond the mental illness. Does that not create a problem for the amendment?

I appreciate that there will be difficulties of interpretation at the margins, but I come back to the 14-year-old girl. It was not difficult to interpret that decision. What happened to her was clearly wrong and could not be justified in any society that claimed to be civilised in its approach to people with mental illness. I accept the hon. Gentleman’s point, but we are here to navigate our way through these difficult issues and I am sure that there is a way forward. I know that the Minister will have something to say about it. Briefly, then, we must ensure that there are facilities and beds within the community.

I was heartened by what the Minister said yesterday about age-appropriate facilities. The most important people we need to look after and remove from police cells are the young. Everyone is important, but Rome was not built in a day. If we could get more age-appropriate facilities in the community, near people’s homes—it does not have to be next door; we accept that there will be resource issues—it would be a fantastic and positive step forward. Thank you, Mr. Deputy Speaker, for allowing me to speak to this important amendment.

May I say that I understand the sentiments behind both these amending provisions, but that for reasons I shall set out, it is difficult to accept them? I intend to set out what we are trying to do in respect of the issues covered by amendment No. 88 and to discuss some changes in the Bill that impinge on them.

New clause 11 is designed to amend section 135(1) of the 1983 Act. Let me explain that the purpose of that subsection is to protect a person who may have a mental disorder from ill treatment, neglect or an inability to care for themselves and to ensure that they receive any care or treatment that they need. Obviously, the use of that subsection is quite a serious step, which can involve considerable interference in the person’s home and family life, so we have to be very careful when we talk about making changes to it.

New clause 11 amends that section so that it would apply to virtually anyone with a mental disorder who might need care or treatment. That brings us back to the concern that the hon. Member for Broxbourne (Mr. Walker) himself raised in pointing out that there had been rather a large presence when the person concerned was a young vulnerable girl.

Social workers have raised the issue of getting a warrant more quickly and easily, but we must try to ensure that every effort is made to gain entry in a voluntary manner before resorting to obtaining a warrant. Obviously this does not always work, as was illustrated by the circumstances that the hon. Gentleman outlined. It is feared that opening up new clause 11 in this way would extend those rather intrusive powers. That is why we have a problem with it, and why it is unacceptable. Concerns have been expressed by social workers about this issue, but we have looked at the matter carefully and want to make improvements to the present arrangements at local level between, for example, mental health workers and the police, without taking the rather intrusive powers proposed in the new clause.

Amendment No. 88 was splendidly moved by the hon. Member for Broxbourne, no doubt building on the experience that he gained in Committee. I recognise that concern has, quite rightly, been expressed about the use of police stations for the detention of mentally disordered people. I have recently met representatives of the Police Federation to discuss their concerns about the issue. We also debated this in Committee, where we went over a number of the arguments. I said that I agreed that a police station was not the ideal place to detain such people, and that a hospital-based facility was more likely to be suitable in almost all circumstances.

That is what we are aiming for, but we need to recognise that there will sometimes be occasions when a police station has to be used; my hon. Friend the Member for Bolton, South-East (Dr. Iddon) outlined an example. There could also be circumstances in remote rural areas in which this might have to happen. I am glad that the amendment goes some way towards recognising that, and that it does not try to limit the circumstances in which a police station may be used.

It is true that 72 hours is a long time for someone with a mental disorder to be detained at a police station. It is important to remember, however, that that is the upper limit. Recent data produced, I think, by the Independent Police Complaints Commission showed that the average length of time spent in police custody under section 36 of the 1983 Act was 10 hours, and that the vast majority of people left within 18 hours. In 2005-06, only about 5 per cent. of the people detained remained in custody for more than 24 hours. That is reassuring, but we still need to do better, because it is also clear from the figures that some people are detained for longer than that. The amendment would make it impossible for such people to be detained, which causes real practical problems in regard to our accepting it.

Would it be possible for the Minister to take away the more sensible words that she has used in the House this evening and ask the draftsmen to incorporate them in a suitable change to the Bill? What she has said is rather better than what is in the Bill.

I have been setting out what is in the Bill at the moment, but amendment No. 88 seeks to change some of that. When this was debated in the other place, where it was also a matter of concern, we tabled amendments to sections 135 and 136 of the 1983 Act to allow people to be transferred from one place of safety to another. That will enable a person who has initially been taken to a police station to be moved to another, more suitable, place of safety when appropriate. That was not possible under the current Bill, so we have changed the legislation so that a person with a mental disorder may be moved from a police cell to another place of safety. That will help to reduce the amount of time that some people spend at a police station.

We are backing up this strategy with money: £42 million has been made available to improve the mental health estate, and £58 million this year. Some of that money will facilitate an increase in hospital-based places of safety, which will also reduce the amount of time that some people spend in police stations. In the new code of practice for England, we also intend to reinforce the aim for police stations to be used as a place of safety only as a last resort—for example, only if nowhere more suitable is available. I am sure that hon. Members will appreciate that the code will have some force, particularly in legal cases.

The Minister has spoken eloquently about the period of time that a person might spend in a prison cell. I have heard anecdotal evidence that there is an additional concern about the same individuals repeatedly being taken to a place of safety, usually a police cell, having been pulled off the street perhaps several times a month. What research has the Department undertaken into people with mental health problems who are repeatedly taken into police cells, even if only for short periods of time?

We have held discussions with representatives of the Police Federation and, if my memory serves me correctly, they produced some figures from a particular area. We said to them that it would be helpful to look at best practice and to determine where the relationship between the health services and the police worked well, with a view to getting people into a hospital-based place of safety as quickly as possible. That is why they were pleased about the changes that we have made in the Bill. We also hope that some of the wider measures that we are taking through our amending Bill, such as introducing supervised community treatment, will prevent the kind of revolving-door syndrome that the hon. Gentleman has described, whereby people are discharged from hospital, become ill and are taken in again.

I cannot agree to the new clause or the amendment, but I must reiterate that I understand some of the feelings behind them. If the hon. Member for Broxbourne would be interested in seeing how we are changing the code of practice, I would be more than happy to engage him in that process. I hope that that will offer him some reassurance that we are determined to improve the situation.

I am grateful for the Minister’s response. I am particularly grateful for her invitation to my hon. Friend the Member for Broxbourne to visit her for coffee and biscuits and a full and frank discussion of the code of conduct, an invitation that my hon. Friend will no doubt accept.

I said I did not want to linger on new clause 11 and amendment No. 88 because we wanted to proceed to the final group of amendments, and our proposals may well be taken up in another place. On that basis, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Clause 3

Changes to exclusions from operation of 1983 Act

I beg to move amendment No. 91, page 2, line 24, leave out from ‘Act)’ to end of line 26 and insert ‘after subsection (2B) insert—

“(2) Nothing in this section shall be construed to cover paedophilia.

(3) For the purposes of subsection (2) above a person shall not be considered to have a mental disorder as defined in this section solely on the grounds of the following—

(a) his substance misuse (including dependence upon, or use of, alcohol or drugs);

(b) his sexual preference or gender identity;

(c) his commission, or likely commission, of illegal or disorderly acts;

(d) his cultural, religious or political beliefs.”.’.

With this it will be convenient to discuss the following amendment:

No. 69, page 2 , leave out lines 25 and 26 and insert—

‘(3) A person shall not be considered to be suffering from a mental disorder for the purposes of this Act solely on the grounds of—

(a) his substance misuse (including dependence on alcohol or drugs);

(b) his sexual orientation or gender reassignment;

(c) his commission or likely commission of illegal or disorderly acts; or

(d) his cultural, religious or political beliefs.’.

I shall try to be brief, because I know that others wish to speak—although the hon. Member for Hendon (Mr. Dismore), Chairman of the Joint Committee on Human Rights, who tabled amendment No. 69, does not appear to be present, so perhaps we have a little more time than we thought.

Let me begin by putting on record something rather distasteful. Apparently, the Sunday Mirror—not a paper that I read regularly—published an article entitled “Tories to block new paedo law”, which claimed

“The MPs want to water down a new Mental Health Bill allowing dangerous patients to be detained and forced to have treatment. At the moment dangerous patients and perverts can walk the streets simply because they have an ‘untreatable’ condition. . . But Tory MPs will claim the Bill breaches human rights in the Commons tomorrow. They want to exempt ‘sexual deviants’, which could lead to paedophiles claiming they are just ‘deviants’ and should not be locked up.”

What an ill-informed, shoddy bit of journalism and scaremongering from someone who is supposed to be the political editor of the Sunday Mirror, not that I think that that amounts to much of a job. If that article is not scaremongering—misinformed scaremongering—I do not know what is.

It is not only shoddy and ill-informed. My hon. Friend is right about that, but he expressed himself with the characteristic understatement for which he is renowned in all parts of the House. It is also a piece of scurrilous, vicious journalism—precisely the kind of journalism that has the effect of making life worse for very vulnerable people. The editor of that newspaper ought to be ashamed.

I entirely agree. There was a slightly watered-down version of the same attack in the Sunday People, which I believe is a sister newspaper. I use the term “newspaper” loosely. It quoted the Minister, who I hope will disassociate herself entirely from that article and the misrepresenting comments contained in it. I should be happy to hand it over to her. It does no one any justice: it certainly does no justice to the newspaper, and—as my hon. Friend rightly and articulately said—it does no justice to the people whom we are here to help and whom the Bill is intended to help. We have spent a great deal of time trying to achieve that.

Amendment No. 91 is an updated version of an amendment that was passed with a heavy majority by members of the House of Lords in all parties. Its purpose is to provide some exclusions from what has now become a much-extended definition of mental disorder. It would replace the exclusion for dependence on alcohol and drugs with a more appropriately worded exclusion to cover a state of acute intoxication falling short of dependence, reinstate the exclusion clause in the 1983 to cover sexual preferences, substitute for the existing exclusion for immoral conduct a more generic clause to prevent mental health law from being used as a form of social control, and respond to the evidence that people from ethic communities, particularly black communities, are disproportionately subjected to the Act by providing a specific exclusion to help address the problem.

When we have discussed this proposal in the past, the Minister has suggested that it would be a lawyers’ charter and that it would not address the issue of paedophilia, which is obviously of serious concern. The fear has been expressed that paedophiles would escape through a loophole. That is why subsection (2) states

“Nothing in this section shall be construed to cover paedophilia.”

We have made the position much clearer than it needs to be in order to explain it in language that is clear to everyone, which even the political editor of the Sunday Mirror—if he bothered to check his facts properly—might comprehend and take on board, perhaps even apologising for his scurrilous claims next Sunday.

In my experience, newspapers apologise only if we force them to do so by means of the law.

Having spoken to every psychiatrist I know—and I now seem to know a great number of them—I think they would say it is extremely rare for paedophilia to enter a psychiatrist’s domain, except through forensic psychiatry. It nearly always enters that domain through the criminal law rather than the Mental Health Act.

I accept the hon. Gentleman’s point, but we do not want to create a loophole that might allow paedophiles to escape.

We have proposed this measure to be helpful by addressing the specific concern that the Minister raised. She also raised the concern that it might be a lawyers’ bonanza. I can tell her that there have been four reported challenges to the current exceptions since 1983; they are all on sexual deviancy. It is not bad going that there have been only four in the past 24 years. In Victoria and New South Wales in Australia there is a long list of exceptions, including on political opinions and religious beliefs. In New South Wales, there have been no challenges to this law since it was introduced in 1990, and in Victoria there have been very few, if any. Therefore, there should be no cause for concern that this measure might be a lawyers’ charter.

The Richardson expert committee and the Joint Committee on the Draft Mental Health Bill agree that the broad definition of mental disorder introduced in the Bill, which we support, must be balanced by a set of exclusions. The Joint Committee, of which I was a member, said:

“We conclude that a broad definition of mental disorder in the draft Bill must be accompanied by explicit and specific exclusions which safeguard against the legislation being used inappropriately as a means of social control.”

The Bill defines mental disorder very broadly as any disorder or disability of the mind. There is now only one exclusion, for dependence on alcohol and drugs. It is instructive to compare the amended 1983 Act with mental health legislation in other common law countries, all of which have narrower definitions of mental disorder and broader exclusions.

Dr. Metcalfe of Justice has said:

“The European Court of Human Rights has given a clear judgment stating that the definition of mental disorder must be very clear in order for exercise of detention powers to be lawful. The use of exclusions is a standard feature of most common law jurisdictions in meeting that requirement. They meet the requirements of legal certainty, of guaranteeing individual autonomy and of ensuring that the powers of detention are used no more than strictly necessary.”

The broad definition has two consequences. First, it covers all the diagnoses listed in the relevant World Health Organisation international classification of diseases, some of which even the Government acknowledge might be inappropriate in respect of compulsory powers. Secondly, it covers almost any significant deviation from a normal condition of the mind, however temporary.

In the view of the Mental Health Alliance, there must be some limits to guard against inappropriate use of a clinician’s powers of detention as a form of social control. The Mental Health Act Commission said in evidence to the Joint Committee:

“For the law to be of value—to patients, State administrators, mental health professionals, the police, the courts or the Tribunal—its meaning cannot rest upon the discretion of those working within its framework. We do not find it difficult to envisage the inappropriate use, however well meant, of mental health legislation for non-medical purposes of social control”.

We need certainty to avoid the field day for lawyers to which the Minister referred. The limits on powers are welcomed by the clinicians, the British Psychological Society—if I can get another plug in for it—the British Association of Social Workers, the Royal College of Nursing and occupational therapists. Many of them have been prayed in aid on many occasions by the Minister—and now I am praying them in aid for us.

The new definition of mental disorder—any disorder or disability of mind—could include certain mental states and states relating to certain sexual behaviours. The scope of the new definition is much broader than that in the current Act. If the numbers subject to compulsion are not to be markedly and inappropriately increased, the exclusions are necessary. This is important because the definitions in the 1983 Act are the gateway to the compulsory powers that we have been debating. It is important to protect the fundamental right to liberty.

Lord Alderdice said that

“without a serious look at understanding issues such as culture, politics, religion, breaking the law, sexual behaviour and so on, we could end up dragging into the net all sorts of people who are not suffering from mental illness in a proper sense and it becomes a question of how we deal with people who are difficult, different or deviant in our society. That is a real problem for colleagues in psychiatry, not least because of a move to diagnosis on the basis of people's behaviour and a set of symptoms, rather then necessarily understanding something more about the depth of the disorder and its likely prognosis.”

In Scotland—if we may pray in aid the Scottish again—there are the following exclusions: sexual orientation; sexual deviancy; transsexualism; transvestism; dependence on or use of alcohol or drugs; behaviour which causes, or is likely to cause, harassment, alarm or distress to any person; and acting as no prudent person would act. In New South Wales, there is a raft of exclusions, as there is in New Zealand. So again, it is the norm to have exclusions in various jurisdictions around the world.

On the specific exclusion in question, people misuse alcohol if they become drunk as a result. They misuse illicit drugs just by taking them, and other drugs by using them for non-therapeutic or non-prescribed purposes. In both cases, that includes a level of intoxication that does not cause lasting harm or dependence. Both misuse and dependence are covered by international classification of diseases 10, and are therefore classified as mental disorders. It is therefore necessary that the exclusion be worded to cover both, so that neither the binge drinker nor the casual consumer of drugs is considered a case for compulsion.

On sexual preference and gender identity, what is socially acceptable as sexual behaviour is subject to change over time, because it is embodied in religious and cultural value systems. For instance, homosexuality, as we discussed in Committee, was at one time—some time ago, fortunately—considered unacceptable and a sign of mental dysfunction. It was until recently included as a mental disorder in ICD 10. It is no longer necessary to cover sexual orientation because it is neither listed as a mental disorder nor considered in society as a disorder. Indeed, people are protected by anti-discrimination laws and by the Human Rights Act against such an approach.

The House of Lords discussed at great length all sorts of fetishes, transvestism and auto-erotic strangulation, on which they proved to be something in the way of experts. What a lot of fun they do have in the House of Lords. [Interruption.] We had sex addiction. As the Government have expressed great concern about whether this exclusion might cover paedophilia, and in the wish for a compromise, the amendment makes it clear that paedophilia is not within the scope of the exclusion.

There is a lot more that I would like to say, but I will finish as I want colleagues to be able to get in. The provision on political, cultural or religious beliefs—we had this debate in Committee—is of particular importance to members of the black and minority ethnic community. Again, it is a consideration that they have written to us about in serious terms. They feel that what are considered normal practices and beliefs for many members of that community could be construed in extreme circumstances—I am not saying that this will happen every day—as constituting a mental disorder. The perceptions of that community are perhaps more important than the number of times that the provision might in practice be used.

That is why we have brought back this amendment, which we consider very important. There have to be proper checks and balances in the Bill if we are to broaden the definition of mental disorder in the way that we all support. We want a better balance and to protect people, so that those who have other problems can be treated for them and not have them re-badged as a mental illness, and thereby suffer and run the risk that they will be taken under compulsion for something that is not a mental illness.

rose—

rose—

Order. I should point out that there is very limited time left. I hope that speeches will be brief, as the Minister should be accorded the courtesy of a reply. I call Chris Bryant.

You always say that before you call me, Mr. Deputy Speaker, and you do so with great wisdom. I shall, however, be immensely brief. Although I suspect that the amendment will pushed to a vote, I will not vote with the hon. Member for East Worthing and Shoreham (Tim Loughton), and I simply want to explain why. It is not that I believe that homosexuality is a mental disorder; that we should detain people for their cultural, religious or political beliefs; or that we should detain people because of their likely commission of illegal or disorderly acts. It is simply because the amendment as drafted is complex, in that it involves a triple negative. There have not been many challenges since 1983, because the exceptions were unnecessary in the 1983 Act and are unnecessary today. I do not believe that any of these things is a mental disorder and, therefore, it is patronising to put on the face of the Bill that we consider them not to be mental disorders.

Finally, the liberty of people is already guaranteed by the four tests that have to be met before anybody could be considered for detention under the mental health legislation.

I shall also be brief. An essential difficulty in the legislation is the open nature of the term mental disorder. It is not related to medical taxonomy or to clinical categories and it is therefore helpful to say what it is not. That is the point about most exceptions lists, and about putting principles on the face of the Bill. As has been said, many other legal systems have similar, but not identical lists.

The argument against lists is that they are restrictive and can be faulted on a case by case basis. There are obviously instances of political or religious beliefs, and cultural or sexual practices that are so alarming that, by themselves, they might be symptomatic of a deluded or deranged state, though one would look for other associated symptoms. One thinks, for example, of the political or—for that matter—religious views of someone such as David Icke, and things such as paedophilia and necrophilia. Equally, we can cite instances in which gay people, communists, religious dissenters and generally socially wayward people have been labelled improperly as mentally ill.

It is a fascinating topic, but it is essentially theoretical. In real world situations, including exceptions does no evident harm, sends out important signals about cultural and social sensitivity and tilts practice in a wholly desirable way, as do statements of principles. If we were making law in a Platonic spirit of purity, completely unhooked from practice, disconnected from context and timeless in its significance, an exceptions clause would not be included, but that is not what we usually do. We usually do a more pragmatic and mundane job and, in the current circumstances of the worldwide climate we inhabit, there is not a shred of evidence that including exceptions does any harm, and a fair presumption that it may do some good.

Once again, we return to a topic that was a matter of considerable controversy and impassioned debate throughout the passage of the Bill, and indeed during its long gestation. That is whether it is necessary to include on the face of legislation a list of matters that are not to be regarded as mental disorders. My hon. Friend the Member for Rhondda (Chris Bryant) put his finger on it—[Interruption.] Do wake up! We are all quite interested in this issue—

So am I.

Clearly. At the moment, there are three exclusions in the mental health legislation as it stands. Our intention is to keep the exclusion for alcohol and drug dependence, but to abolish those for sexual deviancy and for

“promiscuity and other immoral conduct.”

The exclusion for promiscuity and immoral conduct dates back to the 1959 Act and the way mental health legislation had been misused before that to detain unmarried mothers and otherwise enforce moral codes. The exclusion has now served its purpose and is no longer needed.

The exclusion for sexual deviancy added in 1982 was probably intended to refer to homosexuality. As my hon. Friend the Member for Rhondda said, that was at that time still listed as mental disorder in the international classification of diseases. However, that exclusion was quickly associated with paedophilia and sexual offending. Its effect has been that paedophiles, for example, can be detained and treated under the Act, but only where clinicians diagnose an underlying condition, such as an antisocial personality disorder. Paedophilia—though a recognised mental disorder in itself—is excluded because of the provision on sexual deviancy, which is why we are removing it.

The amendments propose a set of new exclusions, but most of them refer to things that are not mental disorders in the first place. In other debates on these matters, in Committee and elsewhere in the House, Opposition Members have maintained that the proposals are less to do with what is happening at the moment than with what might happen if a very extreme Government were to take over—

We have that already.

We are getting close, I admit, and maybe it is not such a bad idea. However, my point is that an extreme Government might ask clinicians to start detaining people for their cultural, religious or political beliefs. The hon. Member for Daventry (Mr. Boswell) is one of those who has put the other argument—that the amendment does not have to do with UK practice or with the good faith of Ministers or the existing system but with the fact that there have been chilling experiences in other countries, where people have been singled out for mental treatment because their faces did not fit.

The points about other countries are probably valid, but we must remember that we are legislating for this country. Given that clinicians have not detained people for their political beliefs for many years, the idea that the advent of an extreme Government will mean that they will suddenly start detaining people under the Mental Health Act is a little difficult to swallow.

Is the Minister confident that all the exclusions listed in amendment No. 91 are covered specifically in other legislation, and that there is therefore no need to name them to send the message outlined by the hon. Member for Southport (Dr. Pugh)?

It would not be possible to detain people for their religious beliefs, because the Act states that people can be detained only if they have a mental disorder. A person’s religion is not a mental disorder, and neither are his political or cultural beliefs or, as my hon. Friend the Member for Rhondda pointed out, his sexual preference or identity.

The existing legislation provides an ability to appeal to the mental health review tribunal. The principles that will be put in the code were accepted when they were considered by the Lords, and they make it clear that unlawful discrimination is not allowed. The relevant criteria—that the person involved has a mental disorder and is capable of causing serious harm to himself or others, and that appropriate medical treatment is available that must be delivered in a hospital setting—have to be met. If they are not, the person involved cannot be detained.

I can understand why people feel that the amendment would be nice, but I have some concerns about it. The Mental Health Alliance has said that exclusions act as a check on clinical discretion, but I believe that we should be trying to ensure that clinicians can treat people as they need it. The amendment is seen as a safeguard, but I do not think that it is because, as I said earlier, the circumstances that it lists are not mental disorders. Legal exclusions should cover things that are mental disorders, not things that are not.

I want to make three quick points. First, the principles to which the Minister referred are not on the face of the Bill. Secondly, I agree that we are legislating for this country, now. However, does she accept that the legislation on mental health and other issues passed by this House sets an example to the world, and that other countries with Governments even less scrupulous than this one take notice? Thirdly, does she admit that our proposal in respect of paedophilia lays to rest the fears that she might have had in that respect?

I certainly accept that the hon. Gentleman has made a case for the exception of paedophilia. He says that the legislation may last for a long time, and that to prevent the actions of some future Government we need to include exceptions now, but waving the Mental Health Act at a Government who are locking people up for their political, religious or cultural beliefs is unlikely to have an effect.

The Minister has said twice that she believes there are things listed as exemptions that are not true mental disorders, but in paragraph 19 of her lengthy and helpful reply of 1 April to the Joint Committee on Human Rights, she says:

“The Government does not share the Committee’s view…that gender dysphoria and transvestic fetishism could never be regarded as true mental disorders”—

They are not in the list.

But subsection (b) of the amendment—

“his sexual preference or gender identity”—

could clearly refer to transvestic fetishism and, by definition, gender dysphoria. Can the Minister explain that?

We are not discussing that—[Interruption.] In fact, I said that most of the exceptions were not mental disorders and those are the ones that worry me.

Although there have been only a small number of challenges to the legislation, they have been worrying; for example, the Clatworthy case, in which the patient was convicted of indecent assault of two young girls and detained on grounds of psychopathic disorder. After the sexual deviancy exclusion was introduced his case went before the mental health review tribunal where it was argued that he did not meet a definition of psychopathic disorder because his only dangerous behaviour was sexually deviant and was thus excluded. The tribunal disagreed but the case went to judicial review and the judge found in favour of the patient. We must not imagine that such circumstances will not arise. There have already been four major cases and they have affected the operation of the tribunal.

Secondly, the more exclusions in the Bill covering conditions that are not mental disorders, the more the possibility of a challenge. Somebody could easily claim that they were detained because of their religious persuasion—because they said, “I have X, Y, Z powers”. A challenge could be mounted on each of the exclusions. When people are detained against their will, they will look for ways to challenge their detention. There can be reasonable grounds that a person does not have a mental disorder, but we must not confuse the issue by including a range of conditions in the Bill that an individual could use to meet a challenge against their detention.

I want to back up the point made by my hon. Friend the Member for Rhondda. He is right: it is patronising to say that we have to exclude sexual preference as a possible mental disorder, when it is clearly not a mental disorder. A similar issue arises in relation to autism. People from the National Autistic Society asked me why we were describing autism as a mental disorder, because some of them do not accept that description. If we say that sexual preference must be listed as an exclusion in the Bill because it is a mental disorder, we are sending the wrong message. That is why we cannot accept the amendment and I ask the hon. Member for East Worthing and Shoreham (Tim Loughton) to withdraw it.

The Minister’s arguments are not new and I do not accept them. The point that I made about our being a beacon of legislation to the rest of the world is particularly pertinent as we consider this very important part of the Bill. We do need to have these proper checks and balances, so I shall press the amendment to a Division and I ask hon. Members to support it.

Question put, That the amendment be made:—

I beg to move, That the Bill be now read the Third time.

The Mental Health Act 1983—[Interruption.]

Order. I apologise for interrupting the right hon. Lady, but it is quite unfair to the Minister at the Dispatch Box if conversations are going on in the Chamber. Hon. Members should stay if they wish to listen to the debate, or depart quietly.

Thank you, Mr. Deputy Speaker.

The Mental Health Act 1983 is primarily about the circumstances in which people with a serious mental health problem can be detained and treated without their consent to protect themselves or others from harm. Not surprisingly, this is a sensitive matter, so any Bill to amend that Act is likely to provoke much debate and controversy.

It might be helpful if I set out why the Government want to update our mental health legislation. We want to ensure that people with serious mental health problems receive the treatment that they need to protect themselves and others from harm. We need to recognise that the world has moved on since 1983. Many more people can now be treated in the community, rather than in hospitals, so the use of compulsory powers should reflect that. Professional demarcation lines have changed since 1983, and functions are now being carried out by people with the right skills and experience, rather than individuals from particular professions. Again, our legislation should change to reflect that fact. We also want to strengthen patient safeguards, which includes tackling human rights incompatibilities.

The Government began their review of mental health legislation in 1998. Since then, reforming the legislation has been the subject of wide-ranging debate, which has been enormously helpful. We have listened to relevant stakeholders and made many changes as a result of discussions with them. The decision to proceed with an amendment Bill rather than the 2004 draft Bill was a response to the recommendations of the pre-legislative scrutiny Committee. I take this opportunity to thank that Committee for all the work that it did.

We have had long and helpful discussions in the House on the Bill before us. The discussions in Committee were particularly helpful—

Superb.

Absolutely. I am glad that I was able to table a range of amendments on Report covering issues that were raised in the other place and in Committee. I am pleased that we were able to accept the excellent amendments from my hon. Friends the Members for Rhondda (Chris Bryant) and for Bridgend (Mrs. Moon), which were supported by many other members of the Committee. I am glad that the Opposition parties also gave their support to a number of the amendments that we tabled. I am thinking particularly of the amendments on age-appropriate accommodation and, crucially, those on victims and on advocacy.

There has been much debate on other amendments that the Government did not accept. I hope that I have been able to explain why we have not accepted them, although I am not sure that I convinced everybody on the Opposition Benches of the merits of our case.

This could be the last intervention that I make on the Bill. One of the amendments that the Minister did not accept in Committee was the request to have people with autistic spectrum disorders added to the exemptions in the Bill. The National Autistic Society, of which I am a vice-president, writes today about the Report stage, saying that people with autistic spectrum disorders continue to be detained inappropriately, and the society believes that their situation will be worsened by the Bill, not improved by it.

We discussed autism not only in Committee, where the hon. Lady tabled a number of amendments, but when I attended the all-party group on autism. In addition, in discussions that I had until Friday last week, my hon. Friend the Member for Burton (Mrs. Dean) put forward arguments from the National Autistic Society. The meeting of the all-party group showed some of the divergence of opinion, even among those representing people with autism. I am thinking particularly of one of the Opposition Members who questioned why we were even considering some of the changes that the hon. Lady suggested. It is a complicated subject but I was glad that we were able to have the debate in Committee. I am more than happy to continue to look at how we can assist on issues such as the code of practice, to make sure that services are developed appropriately. As I said, I hope that the amendments that I tabled on supervised community treatment, the conditions that can be applied and how they will be applied will give some reassurance to those who are concerned about SCT.

Where we have not been able to accept amendments, we are trying to use non-legislative means to tackle the issues raised, such as the nearest relative provisions, which were mentioned by my hon. Friend the Member for Birmingham, Selly Oak (Lynne Jones), and places of safety, which were also mentioned today. We will continue to work on those matters, although it was not necessarily right to include them in the Bill.

I thank the many organisations that have worked with us in developing some of the Government amendments. In particular, I thank YoungMinds and the children’s commissioner—an office that, as I have said, is now called 11 Million.

Sir 11 Million.

Indeed. We have also had some very constructive dialogue with the new coalition of mental health organisations, particularly about the role of the responsible clinician.

We have tried to continue to engage with Members of the other place throughout the discussions. I pay particular tribute to Lord Williamson for his help in developing the age-appropriate services. As I said, our discussions in this House have followed on from many of the discussions in the other House, which have informed our debates. I believe that although we have not been able to respond to all the concerns raised there, we have been able to respond to very many of them.

I should like quickly to mention the Making Decisions Alliance and all that it has contributed to the development of the new safeguards for those deprived of their liberty in their best interests. We sometimes forget that the Bournewood changes are a very important part of the legislation, about which I know that two Opposition Members are particularly concerned.

I should also mention all the work put into the analysis of the Bill by the Joint Committee on Human Rights and my hon. Friend the Member for Hendon (Mr. Dismore). Of course, I should also thank the officials who have supported me so effectively throughout the Bill’s passage. I hope that hon. Members would say that the officials have been open to discussion and approachable to Members of the House if they have been needed to give other information. I also thank all members of the Committee. We had an excellent debate with participation from all sides, and we were able to explore many of the issues very thoroughly.

I want to stress how much we want to continue to work with a wide range of stakeholders in implementing the Bill once it receives Royal Assent. I know that many have already been involved in developing the code of practice, and we would certainly like further input from all those with an interest, including Members of the House. Many have also been involved in drafting the secondary legislation, such as measures on new professional roles. Again, we want to work with all concerned to make sure that we get this right.

All told, I think that the Bill that we are—I hope—about to send back to the other place is a significant improvement on the one that came to this House, although we have been able to reflect some of the discussions there in the amendments that we have been considering over the past two days. I hope that Members of the other place will feel that we have taken on board their concerns and responded to the points that they made, as well as to the points made in Committee. I have no hesitation in commending the Bill to the House and wishing it a speedy completion.

I echo the Minister’s words in saying that the Bill has provoked much debate and controversy, which I think is probably something of an understatement. It has been a long haul; as she said, nine years have gone by. I think that I have been responsible for the matter on the Opposition Benches for five of those nine years, and that she has had responsibility for a little longer. [Interruption.] It feels like we have been at it for a long time on the Mental Health Bill. We have been through two draft Bills, the pre-legislative scrutiny Committee, this Bill, the Richardson expert committee and countless meetings, briefings and debates with various members of the Mental Health Alliance and others.

I pay tribute to the hon. Members on both sides of the House who have contributed. We had a lively debate in Committee—it was described as “helpful and superb”—and I also thank the Bill team, who were helpful.

The Mental Health Alliance is a big alliance that formed because of the Bill. Whether or not we agree with everything that it has said, it has had an enormous input into the Bill. We must remember the enormous amount of good work that many of the organisations that form the Mental Health Alliance do on behalf of thousands of people up and down the country every day of the week. We need a Bill that helps those organisations, because they look after some of the most vulnerable members of society.

I pay tribute to the work that was done in the Lords. I disagree with the Minister about whether this Bill is better than the one that came from the Lords. An enormous amount of professional expertise was applied to the Bill in the Lords, and I think that Members of the other place may have a few things to say when it returns to them.

I pay tribute to the many professionals who day in, day out do a difficult job looking after people with a mental illness. Again, our duty is to make their job easier and to clarify the law under which they work, which has always been our intention. I agree with the Minister that there is a need to update the legislation. The 1983 Act was largely based on the 1959 Act, so it is almost 50 years since the underlying principle of the legislation was updated.

There have been advances in mental health treatment, mental health law and the flexibility with which we deal with patients. Rightly, we must respect people’s lifestyles: we have moved away from the asylum system; the professions involved have changed; and there are human rights incompatibilities. All along, we have said that we need a Mental Health Bill, but we need the right Mental Health Bill.

I welcome the Minister’s success in getting the Government to move a substantial distance in a number of areas. She took note of the record six defeats in the Lords on substantial points of great principle. We welcome what we have seen on Report in the past two days on age-appropriate treatment. I also echo the Minister’s tribute to Lord Williamson’s amendments, which started the process.

As I have said, we have made good moves on introducing victims’ rights into the Bill. I welcome the compromise on treatability and pay tribute to the hon. Member for Rhondda (Chris Bryant) for the intelligent, balanced and assiduous way in which he introduced it. We have removed some of the more objectionable and unworkable parts of community treatment orders, not least the provision on abstaining from particular behaviours, and we have linked CTOs to medical treatment.

However, we have not gone far enough. The Bill still fails to take into account the international evidence, which the Government commissioned. It is still far too open-ended, and as such we think that it provides too much of a deterrent for people to engage with mental health services. We are still at odds with the Government about the roles of various “responsible clinicians”, which may be open to legal challenge. Furthermore, inconsistencies remain with the Mental Capacity Act 2005 and the renewal of detention following initial sectioning. We still have serious problems about the definitions and the exclusions. It is unfortunate that the debate on that was truncated, because those are substantial points of disagreement that go to the heart of the Bill.

Unfortunately, we have had no movement on impaired decision making. The new clause was meant as an antidote to the stigma that surrounds mental illness, which concerns us all. Some of the Minister’s references to high-profile cases, such as the Michael Stone case, were unfortunate. She mentioned the Michael Stone case today and in Committee.

indicated dissent.

If the Minister reads the record tomorrow, she will see that she mentioned the Michael Stone case. Without trying to single out one case, what happened in that case, as in so many other such tragic incidents, is that the system fell down—

rose—

Before I give way to the Minister, I should say that if she did not mention the Michael Stone case, I may have confused it with the John Barrett case. She has mentioned the Michael Stone case before. What is common to all those cases is that they show a failure of the system and the services in not being there to pick up those people when they needed to be picked up.

The hon. Gentleman is quite wrong to say that I have mentioned the Michael Stone case—I have not. I mentioned the Michael Barrett inquiry—I am sorry, the John Barrett inquiry—because one of its conclusions was that the only way that it would have been possible to ensure that John Barrett complied with treatment as an out-patient would have been through supervised community treatment, which was not available at the time. That is why we believe that supervised community treatment is important.

I entirely take the Minister’s point. I think that we are confusing Michaels and Johns; if that is my fault, I apologise. Nevertheless, whatever reference has been made to community treatment orders, there was in both cases a failure by the system in relation to somebody who tried to engage with it, and a failure by the services to provide a safety net and to move in at the appropriate time.

In the debate on impaired decision making, I was particularly concerned about the fact that the definition of “untreatable” involves people being turned away from services. That suggests that the Bill is being used as a substitute for the lack of appropriate services and deficiencies in the mental health service as it stands. It confuses availability and access to services with the need for coercion in order to ensure that patients accept services that are offered. As Dr. George Szmukler, dean of the Institute of Psychiatry has said,

“The government has objected that this amendment might leave out people who need treatment. It is alarming to think that the state has reached the point that everyone who is deemed to ‘need treatment’ should be detained if they disagree.”

Access to treatment seems to have become entirely entwined with the legislative ability to subject to section and compulsorily treat a patient. Is not that a rather terrible indictment of the state of mental health services?

The Minister has admitted that under her mental health system she would turn people away if she could not subject them to compulsory treatment. We seem to have reached a stage analogous with somebody who has heart disease, with blocked arteries, presenting at a hospital and being told, “You must either have a heart transplant or no treatment at all.” It should not be all or nothing; it should be coercion and sectioning only in the most extreme circumstances. The Minister seems to be proceeding under the highly flawed and worrying premise that if someone cannot be sectioned he will not get the treatment. That is wrong—it should not be the case under mental health law—but the Minister is labouring under that misapprehension.

It is interesting to note that the Minister dismissed out of hand the situation that will pertain, for example, in the constituency of Kirkcaldy and Cowdenbeath—that of the incoming Prime Minister. Under her assumptions and analysis, the constituents of Kirkcaldy and Cowdenbeath are being allowed to commit suicide because of impaired decision making, yet she has no evidence to support it. Has the incoming Prime Minister said, “Under impaired decision making, there is a serious problem with my constituents being more susceptible to suicide”? I very much doubt that there has been, yet the Minister is going to create a difference between mental health law on either side of the border. Clearly, Scotland has produced much more enlightened mental health legislation, and that will throw up serious differences between how patients are treated on either side of the border.

The hon. Gentleman has consistently failed to answer one question. He says that there will be people who would not need to be detained because they did not have impaired judgment, but he has never given the figure for how many people he thinks it acceptable to turn away from services saying, “We’re not going to treat you either because you are a danger to yourself or a danger to others.” What is that figure?

The Minister is trying to repeat our previous, truncated debated. Her logic and analysis imply that, in the incoming Prime Minister’s constituency, under the Mental Health (Care and Treatment) (Scotland) Act 2003, which contains impaired decision-making provisions, people are much more susceptible to suicide. There is no empirical evidence for that.

We are worried because there is a significant risk that the Bill will undo much of the good work in improving mental health services and the relationships between service users and providers. There is a genuine risk of investing in a new regime of compulsion, which will have a counter-productive effect, alienating rather than engaging with people with mental health problems and possibly increasing rather than reducing patient and public safety. Patients could well slip under the clinical radar, and we do not want that to happen. We want a Bill with which we can work, with which clinicians can work and with which patients can work and engage. We want a Bill that reassures the public that their safety is being protected, and balanced with the liberty and medical care of others.

We need a Bill that is fit for the 21st century. We are almost there, but the measure, which now returns to the Lords, still contains too much that is objectionable and will deter people from presenting. We cannot, therefore, support it as it stands. I urge my colleagues to vote against it, but in doing that, I hope that the Government will take our concerns on board, engage constrictively with the Lords and go that bit further so that we can have a Mental Health Act 2007 of which we can all be proud. I look forward to considering the measure again when the Government have taken our concerns on board and it returns from the Lords.

I agree with the Minister that we have held a series of excellent discussions on Second Reading, in Committee and yesterday and today. Every member of the Committee took part in the debate to a greater or lesser extent—I believe that that is unusual. In my admittedly limited experience, the contributions from hon. Members of all parties in Committee were of an extremely high standard.

Opposition suggestions and amendments have brought about changes and Back-Bench amendments have also been adopted. That has improved the Bill. Unlike the hon. Member for East Worthing and Shoreham (Tim Loughton), I believe that the measure is an improvement on the current position. It is not perfect and other improvements can be made, but it is better than the Bill that was introduced a few weeks ago.

The measure will return to the other place and I hope that their Lordships will at least recognise that it has not been rammed through the House—far from it. Careful consideration has been made of every point—some might say ad nauseam. I hope that their Lordships will pay some heed to that.

On a final, personal note, tonight marks the end of some five years’ involvement with scrutinising the Bill’s predecessor and serving on the Committee that considered the current measure. There is therefore a sadness, but I believe that we have produced something better than we had previously. I recognise that there has been much constructive working among many people who are in the Chamber this evening to achieve that.

After a long journey, we have reached an interesting juncture. The Bill arrived in the Commons surrounded by controversy, heavily amended and cloaked in colourful rhetoric. Some said that it was simply a Home Office measure, which was intent on coercing the mentally ill, an open charter for compulsory medication or a means of handing out psychiatric ASBOs, likely to terrify and worsen patients’ conditions. Others claimed that it was the last chance to prevent an epidemic of killing by deranged people and the only way to stop psychopaths freely walking the streets.

Some peopled the world with psychiatrists twitching to incarcerate the vulnerable, the eccentric and the politically deviant. Others spoke of a profession turning its back on the troublesome and the homicidal. However, in the Commons, the Committee stage, secluded in a Committee Room, reduced the temperature. Points were probed and some small progress was made. Subsequent off-stage meetings accelerated the process and I hope that Report has moved things on further.

Looking at our debate as a whole, a bystander might wryly note the fact that each side quotes the Scottish Act from time to time like scripture, but only the bits they really like; that each side quotes experts, but only the ones they really like and dismisses the others as “so-called”; that each side demands evidence for opposing claims, but not always for its own—as, for example, with our discussion of compulsory treatment orders; and that each side quotes opinion surveys, but only the ones that suit. Personally, I have difficulty in any case involving complex matters in believing that the majority are necessarily right. I sometimes have difficulty in believing that even the Liberal Democrats are necessarily right—[Hon. Members: “Hear, hear.”]

Suspicion about intentions and fear of professionals abusing power have been persistent traits in this debate and in the briefings, which perhaps indicates that there is more widespread paranoia around than hitherto. Unusually—the Bill has been unusual in this respect—the vast bulk of Opposition amendments tabled both in this and the other place have been skilfully drafted by a few but very influential external hands, who helpfully handed many ready-framed amendments to MPs—a kind of Blue Peter model of legislation.

As a result, we have got concessions from the Government—very welcome concessions, but possibly not enough—on children, advocacy and treatability. In other areas, the Government have stood their ground and we will have to go a little bit further. Where our arguments are good—they will be put in the other place—we would expect concessions and not stubbornness. Ultimately, this is not for any of us a political issue. It is about putting good legislation in place on a very difficult subject, which will last for decades. Whether it is done through truculence in the Lords or Socratic questioning in the Commons, we can secure better legislation—[Interruption.] Any philosophical reference will usually do for me.

The reality is that the Bill has had a poor birth and a rather troubled adolescence, but it might just mature into stable legislation.

I thank the Minister and congratulate her on two things. First, she has brought the legislation forward in an open and transparent manner. She has sought to work with people from all backgrounds who have wanted in good faith to contribute to producing a better Bill. She has done a very fine job on that. Secondly, she has done a good job by listening to Labour Back Benchers. It is very rare for the Government to accept amendments from their Back Benchers, and it is quite nerve-racking when an amendment has been tabled, but one is not sure whether the Minister is going to accept it, because it makes one think of having to vote with the Opposition against the Government.

It is an important point for parliamentary democracy and how this House works with the other place to note that it is right for the Government to seek to put things right in this House rather than wait for the other House to do business down the other end of the building. I pay an enormous tribute to the Minister and to the whole team who have contributed to that.

The Minister was right to say that the Bill team has been magnificent. I confess that I sought its advice on many occasions and it was always forthright with me. I would also like to pay tribute, as would many of my hon. Friends, to my hon. Friend the Member for Bristol, North-West (Dr. Naysmith), who over the past few years has steered many of us on the Government side in the right direction and has personally devoted a great deal of time and energy to the Bill. The quality of the Bill tonight is in no small measure due to my hon. Friend’s contribution.

I personally believe that the Mental Health Alliance, with which I have had some sturdy rows on occasion, has provided a very helpful service to the House. I have not agreed with it on everything, but I believe that it has sought to introduce amendments to improve the Bill according to their lights. We often forget that the lobbyists who come to our doors are every bit as important a part of the political and democratic process as are we who have been elected to sit here. We would simply not be able to do our work without them.

I pay a sort of tribute to Mr. Grumpy, commonly known as the hon. Member for East Worthing and Shoreham (Tim Loughton). Perhaps he should be known as Mr. John Lewis, as he is never knowingly understated. He has on occasion been non-partisan, however, as well as being conciliatory and generous to the Minister and, for those moments, I am enormously grateful to him.