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Mental Capacity Bill

Volume 668: debated on Tuesday 25 January 2005

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8.27 p.m.

House again in Committee on Clause 3.

The noble Earl said: This is a probing amendment, because I do not wish to disturb the phraseology of the subsection, which seems to have a particular elegance.

My question relates to individuals with depression. One of the features of those who are afflicted with depression is that they do not view the world in a normal way. They do not experience emotions in the way that others do; their view of life is of something colourless; they are often preoccupied with intense feelings of self-denigration; and they lack hope. In so far as a depressed person is capable of taking decisions, the decision-making process is skewed by those features of their illness. They do not use or weigh information in a normal way.

Obviously, there are degrees of depression. The most severe forms have obvious outward symptoms. Someone with very serious depression who has delusions and is unable to lead any sort of normal life might well be regarded as lacking in mental capacity. Yet, even those with less serious forms can reach a point where they feel suicidal. The more difficult question is whether and to what extent, for the purposes of the Bill, someone with a less extreme type of depression can be regarded as lacking capacity if, while depressed, they go on to make an advance decision. I do not want to anticipate our debates about advance decisions, but we have to ask fairly tough questions about the interaction between this subsection and the fourth principle in Clause 1, which says:

"A person is not to be treated as unable to make a decision merely because he makes an unwise decision."

The issue is when an unwise or irrational decision becomes an unbalanced one.

An advance decision might in some circumstances have a suicidal intention behind it where the person is in a depressed state. Sometimes that fact will be impossible to ascertain. For example, a doctor may believe from the evidence before him that an advance decision was not simply unwise but was also not taken by the person in a rational and balanced way because the person was depressed when he took it. I realise this is a hypothetical question, but it is an important one— are those sufficient grounds for the doctor to treat the advance decision as null and void for the purposes of the treatment that he proposes to administer? I beg to move.

I understand what the noble Earl, Lord Howe, seeks to do. and I recognise that the amendment is probing. We think that the wording we have used incorporates evaluation as well. It is important that part of that is being aware of the consequences of the decision. For example, someone who has an eating disorder may understand that they need to eat to stay alive, but they cannot weigh that and its consequences appropriately. Someone with depression may also be unable to assess and to weigh the information because of their condition.

It is our understanding that if someone were depressed that would be sufficient grounds for a clinician to consider whether an advance decision was valid at all, and indeed whether to treat. When we discuss the role of making the advance decision in writing as we have described—in terms of withdrawal and refusal of treatment and the role of witnesses in that—we might explore the issue further. We think that, in the weighing that we have described in the Bill, we have incorporated the fact that people have to think about the information and be able to draw conclusions from it. Clearly, somebody in a depressed state may not be able in a position to do that, in which case, for the purposes of the Bill, they would lack capacity. I hope that that addresses the point made by the noble Earl, and that he will withdraw the amendment.

Amendment, by leave, withdrawn.

[ Amendments Nos. 8 and 9 not moved.]

Clause 3 agreed to.

After Clause 3, insert the following new clause—

"DUTY ON PUBLIC BODY TO ASSESS CAPACITY

  • (1) Where it appears to the relevant authority that a person "P" may lack capacity in relation to matters connected to—
  • (a) the assessment of P's needs for services which may be provided or arranged by the relevant authority ("assessment of needs"), or
  • (b) the provision of services to P which may be provided or arranged by the relevant authority ("service provision decision"),
  • no part of this Act will authorise a person to do an act connected with the assessment of needs or service provision decision unless the steps set out in subsection (3) are followed.
  • (2) For the purpose of subsections (1) and (3) a "relevant authority" means either—
  • (a) a local authority exercising functions under section 47 of the National Health Service and Community Care Act 1990 (c. 19) (assessment of needs for community care services),
  • (b) a local housing authority within the meaning of the Housing Act 1985 (c. 68), or
  • (c) a Health Authority, Health Board, Special Health Authority, Primary Care Trust or National Health Service trust.
  • (3) The relevant authority must—
  • (a) make arrangements for P's capacity, in relation to the manner in question, to be assessed,
  • (b) notify P of the help available from, and assist (if P so requires) P in contacting, an independent advocate under the arrangements under section 34 (such help may include assisting P in communicating his views),
  • (c) consider whether P requires any additional assistance in communicating his views (whether by talking, using sign language or other means), and
  • (d) where P has been assessed to lack capacity in relation to the matter in question, to make such enquiries as are necessary to be satisfied that the matter does not fall within the scope of the authority of—
  • (i) a donee of a lasting power of attorney granted by P,
  • (ii) a deputy appointed by the court,
  • (iii) an advance decision to refuse treatment (where treatment is being considered).
  • (4) In carrying out an assessment under subsection (3)(a) the relevant authority must take into account the views of—
  • (a) P with or without the assistance of an independent advocate providing support in accordance with subsection (3)(b),
  • (b) anyone named by P as someone to be consulted on the matter in question or on matters of that kind,
  • (c) people who are, or are likely to be, responsible for the provision of care or treatment to P in a professional capacity, and
  • (d) if it is practicable and appropriate to consult with them, any other person engaged in caring for P, whether or not in a professional capacity.
  • (5) If in the course of carrying out an assessment of P under subsection (3)(a), the relevant authority or any person or persons identified in subsection (4) requests that an independent advocate be provided to assist with the assessment, in accordance with the role of an independent advocate as defined under section 34, the relevant authority must ensure that an independent advocate is provided."
  • The noble Lord said: With this amendment we move to the subject of the duty on a public body to assess capacity. As we know, there are tens of thousands of older people and people with disabilities who are subject to having their care and treatment needs assessed every year. That is besides the more than 300,000 older people in residential nursing homes and the like. A significant proportion of those people will have difficulties in making decisions. It is therefore essential in the assessment, planning and review of those services that public authorities pay as much attention as possible to ensuring that people's ability to make decisions and have a say is maximised.

    The amendment would affect the local social services authority, the local housing authority or an NHS body. It will cover assessment for a person's needs through a range of health, social care and housing needs and the decisions on what services should be given to meet such needs.

    If it appears to the authority that the person concerned may lack capacity, the amendment requires the authority to take specific action. It makes clear that the authority must have a system of assessment and of information, of advice on advocacy and on communication needs; and that it must also make the necessary inquiries to be satisfied that another person does not have the authority to make such decisions, or that the situation is not covered by the advance refusal of treatment. The amendment therefore makes clear that the relevant public authority must ensure that decisions are taken only on behalf of the person in relation to health, social care and housing services after these steps have been taken.

    It is implicit in the Bill that the authority should carry out an assessment of the person's capacity and I accept that. If it appears that the person may not have capacity to make decisions in relation to his assessment, the amendment makes the policy which is implicit in the Bill explicit on the face of the Bill. I beg to move.

    I would in spirit very much like to support the amendment, but I have a small problem with it. Perhaps the Minister can help me or the noble Lord, Lord Carter. My problem is that one's capacity to take a decision varies depending on the size of the decision. If there is to be a formal way of assessing capacity and a duty formally to assess it, it is necessary to have a tool that is valid and possible of reproduction, as well as being widely applicable. One can then demonstrate that assessment has taken place against a measure.

    The difficulty is that, so far as I am aware, we do not have a widely applicable tool. Various different tools are available in practice to assess capacity in a range of different situations, but there is no universally applicable model. I wonder whether that might become a problem.

    I have a second concern with the amendment which might seem minor. Subsection (2)(c) lists various NHS providers, but I am concerned about patients in the private sector and how a duty to assess would cover them. It may be that I have missed it in the wording of the amendment.

    I, too, support the noble Lord, Lord Carter, in the spirit of the amendment. I have two brief questions for the Minister. The first is whether local authorities and health authorities have been consulted about the new duties that will be placed on them. The second relates to their ability to carry out these functions. What resources will be made available to them when the legislation is introduced? All of us who have served on local authorities know that there are many competing demands on them and that their budgets have already been formulated for this fiscal year. Some lead time is needed in order to be able to work out new financial provisions if they are required. Can the Government give an indication of the overall costs of implementing the legislation and the provision that is being made for that?

    I am grateful to my noble friend because this is an important opportunity to examine the issues he has raised on assessments, and so forth, to ensure that we implement the legislation correctly. My noble friend Lord Carter invites me to have inserted into the Bill the formal procedure requirements he indicates. I accept the comments of the noble Baroness, Lady Finlay, on the missing parts, but I am sure that my noble friend would deal with that were he to bring the amendment back.

    It is right that the assessment of services should take account of the Bill. It is what we have always intended and we will work to ensure that it happens within the law. I am clear that we would wish to see what my noble friend seeks, but I intend to resist the amendment for three different reasons. The first is something that the noble Baroness, Lady Finlay, alluded to when talking about the differences in the formal processes and procedures. I question whether it is always appropriate to have such formal procedures.

    We have stated in the code of practice that where consent to medical treatment or examination is required, the doctor or clinician who is proposing that treatment must decide whether a patient has the capacity to consent and must record his findings in his medical notes. But I am not sure that it is right that the decision to provide any service should be subject to what would essentially be a full formal capacity assessment, even if it is for the provision of quite a small service. I am sure that that is not what my noble friend is after. If someone is being assessed for the provision of new cutlery—a common example—perhaps after having a stroke, one would not be looking for a full medical assessment. I am sure that my noble friend is not looking for one either, but the amendment would invite that to happen in practice.

    This does not mean that we want the Bill to allow public bodies to provide inappropriate care for someone because he lacks the capacity to consent. The provision of equipment would be an act of care or treatment. It would therefore be required in the best interests of the person, with the individual as fully involved and consulted as possible. In relation to communication aids, we have already indicated in our earlier discussions that someone is not to be treated as unable to make a decision unless all practical steps have been taken to help them, including with communication difficulties.

    The second reason why I have concerns about this amendment is that I am of the view, and have become increasingly so as time has gone on, that primary legislation is not the best place to tackle everything. This is important—I recognise that—but I am not sure that it is something that I want to see covered in primary legislation. The purpose of the Bill is to set out the broad principles and absolutes, if I may put it like that, to be followed, but we cannot lay out on the face of the Bill the practical detail of how professionals should operate, and I am not sure that we should. We want good practice to be followed, bearing in mind what the noble Baroness, Lady Barker, said earlier this evening about siloed good practice and the need to make sure that it does not operate in that way.

    This issue goes back to where we started: every person is different and the needs of each individual need to be taken into account. The details of the assessment procedure—this is where the noble Baroness, Lady Finlay, came in—must be a matter for professional judgment in relation to the case, with support from the code of practice in training and guidance. That is my second consideration.

    It is important to indicate that we are putting the individual at the heart of the process. The work involved in putting together the single assessment process for older people, the valuing people programme and the National Service Framework for Mental Health are good examples of where we have managed to increase awareness and spread good practice, and I hope that they will begin to address some of the issues raised.

    My third point is that the requirement to consult others is already part of "best interests". The noble Lord, Lord Alton, asked me about the consultation process. We are in dialogue with many different bodies that are concerned with the Bill. One of the things that will happen when, as I trust, the Bill becomes law is that the code of practice, which I think I described earlier as the "living document" upon which professional practice will be based within the framework of the Bill, will be out for consultation to enable us to engage with all those involved.

    I am waiting to see whether I have the final figure for the amount of money; no, I do not. I think that I indicated that we have £12 million available for some of the implementation process. We have separate moneys available that we will talk about later in the Committee when we discuss the independent consultee—we may find a name change coming our way. I think it is £6.5 million for that. There will be others. I shall write to the noble Lord and copy other noble Lords in on that.

    Of course, in the Bill it is clear that the requirement to consult with, and take account of the views of, others is provided under "best interests". Clause 4(7) sets out the consultation process, which includes the independent advocate and,
    "anyone engaged in caring for the person or interested in his welfare … any donee of a lasting power of attorney … and … any deputy".
    I think that point is already covered in the Bill.

    For those reasons, I would resist this proposal being in the Bill and would steer my noble friend firmly towards the ability of the code of practice to enable us to discuss some of those issues, while recognising the principle to which my noble friend referred. I ask my noble friend to withdraw his amendment.

    When the Minister tells a former Chief Whip that she is going to steer him firmly in a certain direction, it reverses what we used to do. I am extremely grateful to the Minister. Obviously this is a probing amendment. If a person lacks capacity, an assessment will have to be carried out one way or another to ensure that he receives the right housing, social and residential care, and so on. There is no choice on that.

    It is implicit in the Bill that those assessments will be carried out. This was an attempt to explore how that will be done. I am satisfied with my noble friend's answer that it will be spelt out in the code of practice. As regards the timetable, perhaps this may be a chance for the Minister to confirm that 2007 is the likely date for implementation.

    Indeed, but I am very conscious that my noble friend steered me, as he is prone to do, towards looking for earlier implementation. There are real issues about ensuring that the different elements of this Bill work together— particularly, the Court of Protection.

    I am now engaged in an interesting debate about what we mean by 2007, which, as Members of the Committee will know, has 12 months in it.

    This is a debate that will continue inside and outside the Chamber. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    Clause 4 [ Best interests]:

    [ Amendments Nos. 11 and 12 not moved.]

    moved Amendment No. 13:

    Page 3, line 8, leave out subsection (5) and insert—
    "(5) Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death."

    On Question, amendment agreed to.

    [ Amendment No. 14 not moved.]

    moved Amendment No. 15:

    Page 3, line 15. at end insert—
  • "(6A) He must consider any advance statement made by the person ("P") when P had capacity to state P's preferences in relation to the matter in question.
  • (6B) For the purposes of subsection (6A) an "advance statement" must—
  • (a) be in writing.
  • (b) be signed by P or by another person in P's presence and by P's direction,
  • (c) the signature is made or acknowledged by P in the presence of a witness, and
  • (d) the witness signs it, or acknowledges his signature, in P's presence.
  • (6C) He must, where the determination is not in accordance with P's preferences as stated in P's advance statement, be able to show good reason as to why this is the case."
  • The noble Lord said: Amendment No. 15 refers to "advance statements". Currently, the Bill will give statutory legal recognition to only advance refusals of treatment. It would be helpful in our terminology to use the words "advance directive" or "advance direction" for refusals of treatment and "advance statement" and "wishes" to continue treatment, so that there is no confusion. I shall use the term "advance statement".

    There is an argument that the positive advance request for treatment and care should also be given some form of recognition in the Bill. The amendment proposed will include advance statements made by a person as part of the best interests checklist in Clause 4. If someone has taken the trouble to express his preferences in an advance statement, there should be an obligation on those persons providing care or treatment to take the advance statement into account. I am sure that the Minister will say that that should be done, but it will be interesting to know just how that is supposed to be done.

    The person providing care or treatment should also be able to provide a satisfactory explanation when the care or treatment provided goes against the preferences expressed in the advance statement. The Government have said that advance statements will be included in the code of practice. However, there is considerable research evidence, particularly in relation to people with mental health problems, that unless advance statements have some form of legal status, the experiences of patients and professionals are regularly ignored. We touched on that in an earlier amendment. That experience serves to discourage some people from setting up the procedure for advance statements.

    It would be anomalous that while people with mental disorders in Scotland will have advance statements recognised in Scottish mental health legislation, there will be no legal recognition of advance statements in England and Wales in either the Mental Capacity Bill or the draft Mental Health Bill, which is currently being dealt with in a Joint Committee of which the noble Baroness, Lady Barker, my noble friend Lady McIntosh and I are members.

    Advance statements empower people to make their preferences known in advance, which make it far more likely that they will receive the treatment and care of their choosing. Advance statements will help to promote the ethos that the NHS is aiming to develop through the patient expert programme and should be included as part of the Bill.

    I must refer to the Burke judgment because that is what this is about. There is a firm statement in Burke that if an advance decision to refuse treatment is, in the words of Mr Justice Mumby, "determinative", an advance statement of wishes not to have artificial nutritional hydration stopped, for example, is equally determinative. That judgment has considerable implications, as we all know. We know that it is being appealed.

    I understand why the department and the GMC have joined in the appeal. On certain readings, the Burke judgment could open the door to enormous implications: a patient could demand any treatment he or she wanted, which I am sure was not the intention. It is an important area. This is a probing amendment on the subject of advance statements to see whether, if they are not given the same legal force as an advance refusal, there is some way in the Bill that we could cater for the problem that exists in this area and with the Burke judgment. I beg to move.

    I think that the noble Lord, Lord Carter, was reading from my notes over my shoulder, because he said just about everything that I was going to say. Indeed the Minister and I had a discussion this morning about advance decisions and I too think that this will be a formal recording of positive decisions requesting treatment. I hope that we will find a way to deal with that.

    I have tabled some amendments in this group, but I fear that I have scored an own goal because mine do not cover private practice either. I should not have criticised the amendments of the noble Lord, Lord Carter, when I have made the same mistake. They were motivated by wanting to establish a position of equipoise.

    As the noble Lord, Lord Carter, so clearly laid out, the difficulty is that the legislation seems to be skewed towards one's ability to refuse treatment but makes it more difficult to have some way of legally enforcing a statement of what we would want done. I would like to use two examples. I refer to Jane Campbell, who has already been mentioned and whose case was raised by the noble Baroness, Lady Barker: her situation arose in hospital. It was not reported in the press that two or three months before she had already made the decision that in the event of her needing to be on a ventilator she would want to be on a ventilator and still work. She would like to find a way of having a wheelchair-linked ventilator so that she could get around and still hold her position of responsibility. It was not until her husband and sister were forceful that she was able to convince the clinicians. She had a legally-binding advance statement. They would not have been able to ignore her wishes when she herself was trying to express them. That is an extreme example.

    A situation that arises often in clinical practice is that we do not know on the balance of benefit versus risks and burdens what is going to be right for the individual because the decision is so individual and no decision is absolute. In other words, if a patient is being offered, say, a gastrostomy, we cannot say that they will certainly benefit or not benefit. When some patients can no longer swallow they will say, "That's it; nature's taking its course. I want to allow natural death to occur. The thought of having a tube coming out of my tummy, the risk of diarrhoea and the need to monitor my electrolytes is something that I don't want". That is their decision and they refuse treatment. Under the Bill they can write a statement to that effect.

    However, someone else may say, "If I am unable to communicate or I am too ill at the time, I would like you to think about it and consider it and possibly give it a go and I accept that I may get diarrhoea with it and I realise that you will have to take blood off me every day initially and thereafter at intervals. But I would like to be considered because for me having the hope of some more days or weeks and to be able to express that wish is important to me".

    The amendments do not say that the clinicians must do what is laid out, but if there is an explicit, situation-specific wish, they have to consider it seriously as part of the decision-making. The amendments seek to establish that equality, so that people can state that they would want you to try to let them keep going.

    Another example may arise with people who know that when their depression gets very severe they respond to ECT. I know they are very rare cases, but there are a few people who accept that ECT may be the quickest way for them to get out of the absolutely black depth of their overwhelming suicidal depression. It would be helpful for clinicians if that were stated somewhere, because it would be easier for them to go straight into a treatment that in this day and age is a long way down the list of treatments offered.

    When some of us had an opportunity to discuss the matter at one of the meetings outside the Chamber, a fear was expressed, which I share to some extent, that people could demand any treatment— for example, a new treatment that is being tried out in Australia—and automatically say "I want to go there". Thinking about that afterwards and about our earlier debate today, I wondered whether the principle of equality of treatment would not cover that situation to some extent, if the Bill was carefully worded.

    All we are saying is that, on the premise of equality of treatment, a person who is incapacitated should have access to the same level of treatment as someone who is not incapacitated. No one in this country has a right to absolutely anything under the NHS. You cannot demand to go to wherever you want to try out a treatment. It is only if it is "reasonable". The principle of reasonableness is difficult to define, and perhaps "equality of treatment" or "access to treatment" might be helpful.

    The noble Baroness, Lady Greengross, has provided more ammunition in support of my argument about equal treatment.

    As I said at Second Reading, for me, this is not about people demanding a treatment so much as people not having an assumption made that they would refuse a treatment. That is where we are all trying to get to in different ways. That is one element.

    The second element is slightly different, and perhaps its most important application is in the field of mental health. I know that mental health is somewhat different because it is the one area of medicine where there is compulsory treatment but, having listened a great deal lately to mental health patients talking about treatment and about compulsion, I believe that there are far greater therapeutic benefits in having advance statements in mental health, where people decide for themselves what treatment they want in a period of incapacity.

    For example, someone may say "I know that when I have an episode of ill health I am likely to tell you that I do not want such and such a treatment. But here I am at the moment, with capacity, and I am telling you that if that happens I want that treatment". It is a judgment call. I am not a clinician, but something tells me that it would be far better for people who have the ability to direct their treatment rather than being subject to compulsion.

    It is a slightly different matter from where we are trying to get to with regard to a presumption that people would not want matters to be prolonged.

    Before the Minister replies, I wish to raise a point that I meant to make but forgot to do so. It is important.

    When I was thinking about this issue, I wondered what would have happened if Tony Bland had made an advance statement before he was injured at Hillsborough that he wished artificial nutrition and hydration to be continued if he became incapacitated. That would have been before the Bland judgment, obviously, and also before the Burke judgment. I wonder what the situation would have been then.

    9 p.m.

    Tempted though I am, I will not try to address the speculative question of my noble friend Lord Carter. I understand what he says, and I hope as I talk about the amendments we will reach some conclusions about what might have happened. I start by saying to my noble friend that it is the Scottish mental health legislation that recognises advance statements and not the Adults with Incapacity (Scotland) Act 2000.I have been sent a note about that, so I presume they wanted me to say that.

    I am grateful to everybody who spoke with enormous clarity, and I am very sympathetic to the amendment moved by my noble friend Lord Carter. I completely understand why the noble Lord is concerned to ensure that when people positively want to receive particular forms of treatment—the noble Baroness, Lady Finlay, gave examples—they are given due weight by the Bill.

    We have said that everything in the Bill is about empowering and promoting the best interests of vulnerable people. So I want to provide reassurances when talking about the amendments, and to explain a bit more about the Burke judgment. But I begin by confirming that I plan to table a government amendment on Report on the issue, because that might save anybody leaping in to table a different amendment. I want to explain a bit more about that.

    We start from the premise that, if someone has taken the trouble to write down an advance decision indicating their preferences, a decision maker has a duty to consider them as part of the best interests determination under Clause 4. In the draft code of practice at paragraph 8.12, we have already explained that advance statements are a means by which patients through advance planning can continue to influence their treatment. They do this by influencing the way that a doctor determines best interest. Therefore the more specific and well thought-out the statement, the more likely a decision maker will find it persuasive in that best interests assessment.

    I want to talk explicitly about treatment decisions and about the Burke judgment, referred to by my noble friend Lord Carter, which I know has been influencing the thinking of late, and to explain where the Government are on this. I agree completely that people should be able to request artificial nutrition and hydration (ANH). It is indeed what happens now. However, the judgment in the case of Mr Leslie Burke was not limited purely to artificial nutrition and hydration, because it can be read as giving patients the right to demand any life-prolonging treatment they wish, no matter how untested, inappropriate or, dare I say, expensive and, perhaps most importantly, regardless of their doctor's views on whether it would benefit them.

    Up to now, the courts have always accepted that whether or not a requested treatment is provided ultimately depends upon the clinical judgment of the medical practitioner treating the patient. The noble Baroness, Lady Chapman, and I discussed that a little this morning when we met.

    For example, if a patient—as in the case of Mr Leslie Burke—has made an informed request for artificial nutrition and hydration in advance, that request would be disregarded only if the doctor, weighing up all the other circumstances and factors, found that providing ANH would be contrary to best interests—for example and most obviously if it were clinically detrimental to the patient, as it sometimes can be, or otherwise damaging or distressing to the patient. That goes some way to answering the question posed by my noble friend Lord Carter about what would have happened in the case of Mr Bland.

    It is vital—I think that noble Lords accept this—that there are clear principles for medical professionals to follow to get the best healthcare available. Therefore the Department of Health has joined the General Medical Council's appeal in the Burke case, not because it thinks that advance requests should not be taken seriously—far from it—but to get clarification of how far patients can actually require treatments to be provided.

    To conclude on my noble friend's amendment, the Mental Capacity Bill will offer people with capacity the opportunity to plan ahead for a time when they may lack capacity and to make others aware of what their wishes are, including any treatment they would wish or not wish to receive. As I have indicated, I will table a government amendment on Report to make that clearer.

    I want to talk a bit about the amendments grouped with this amendment, although I have dealt with the main thrust of this group in what I have said.

    Amendment No. 82 would ensure that advance decisions can request the continuation of treatment as well as refusing it. I sympathise with what the noble Baroness, Lady Chapman, is seeking to achieve but again, I refer to the Burke judgment and where we are with clinical practice. We cannot be in a position in which patients can demand any treatment, whatever the circumstances. That is why, when I bring forward proposals on Report, they will be within the wishes and feelings context of Clause 4 to ensure that these requests are followed with regard to all the relevant circumstances in the individual case.

    I say to the noble Baroness, Lady Finlay, that my issue with her amendment is about the same status as advance decisions to refuse treatment. In order to make sure that we fit within best interests and clinical practice, these are important statements which should be recognised, but recognised within the context of what is in the best interests of the patient. At the time of making the decision, patients may not be aware that the treatment in the future may not be appropriate for their particular condition or that better treatments are available which would make life better for them. Given my commitment to bring forward an appropriate amendment on Report, I hope that my noble friend will feel able to withdraw his amendment.

    I am very grateful to my noble friend, and I need not take up the Committee's time. If the Government intend to bring forward an amendment on Report, we must wait and see what it says and deal with the issue then. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendments Nos. 16 and 17 not moved.]

    Baroness Ashton of Upholland: moved Amendment No. 18:

    Page 3, line 35, leave out "his"

    On Question, amendment agreed to.

    [ Amendment No. 19 not moved.]

    Clause 4, as amended, agreed to.

    Clause 5 [ Acts in connection with care or treatment]:

    Lord Carter: moved Amendment No. 20:

    Page 3, line 43, leave out from beginning to ", and" and insert "has capacity to consent to the act and must ascertain P's best interests if P is unable to consent for himself in accordance with section 4"

    The noble Lord said: Amendment No. 20 deals with acts in connection with care or treatment, under Clause 5. This is the phrase the Government have devised instead of "General Authority", which was in the draft Bill. In fact, that was a very good and accurate term but it led to a fair amount of misunderstanding. The fact that it was referred to as a General Authority—with initial capitals—led one witness to think that it was an authority like the Port of London Authority or the Covent Garden Market Authority. We had to explain that it was a concept, not an authority. I am afraid that we could not think of another phrase and told the Government that they must, so they came up with:

    "Acts in connection with care or treatment".

    The amendment deals with the protected act—the act which is protected under what we used to call the General Authority. This will be subject to the test of best interests, which assumes that a person lacks capacity and that a decision needs to be taken in their best interests.

    The amendment strengthens the overriding obligation to maximise capacity and decision-making and supported decision-making before there is a substitute decision under a protected act. It would serve as a reminder to informal and paid carers that the first step is to ascertain that a person has capacity and that any action— once it is established that a person lacks capacity— must be based on his or her best interests. It is important to clarify the intent of the protected act in order to counter concerns about its concept and purpose. It is quite strongly felt that decisions will be taken that are best for the professional carers rather than for the individual concerned. The amendment seeks to improve the links between Clause 5 and the principles in the Bill, as well as the best interests criteria in Clause 4.

    Amendment No. 27, which is in the same group, deals with the treatment safeguards and comes at the situation from a different angle. Clause 5 offers statutory protection against liability for certain acts in connection with care or treatment. If an act qualifies as a protected act, the carer or other decision-maker can be confident that they will not face a civil liability for criminal prosecution. But there is no guidance in the Bill as to the full scope of the protected act, and an argument has been put by the Making Decisions Alliance, which briefed me on this, that medical treatment should have additional safeguards before it can be provided to someone who does not have capacity.

    The amendment seeks to probe the situation, setting out the medical treatment safeguards that we believe should apply. With the most serious treatments and procedures, such as sterilisation and organ donation, there is an argument that the Court of Protection should decide whether the treatment or procedure should go ahead. For other significant treatments such as ECT and the long-term provision of a treatment, we believe that

    the second opinion of a doctor should be involved. The amendment also makes it clear that a representative must be involved when decisions are made about the provision of these treatments. It also allows for regulations to specify further treatments to which safeguards should apply. The Royal College of Psychiatrists supports these amendments. I beg to move.

    I shall speak to two amendments in this group, Amendments Nos. 21 and 94.I need not spend too long on Amendment No. 21, which merely seeks the Minister's reassurance on a very simple point. When a carer or doctor who is looking after the incapacitated person is doing so as an employee or agent of someone else, it is important that the employer or principal of the carer or doctor will not be in any way liable for anything done to the patient, so long as the carer or doctor himself acts lawfully within the scope of Clause 5. Can the Minister provide that assurance and, if so, can she say why the provision does not have to appear explicitly in the Bill?

    On Amendment No. 94, Clause 27 sets out a range of matters that fall outside the scope of the Bill, in the sense of decisions being taken about them on behalf of an incapacitated person. I propose that there should be an addition to that list, albeit a qualified one, and that is that nobody—neither a doctor, an attorney, nor a court deputy—should have the authority to give consent to the removal of an organ or other tissue for the purposes of transplantation. I suggest that that very sensitive decision should be reserved for the court and the court alone.

    Removing an organ, bone marrow or any other sort of tissue from a patient, whether mentally incapacitated or not, is an invasive process which is not without some risk. One cannot say that it will provide direct therapeutic benefit to the patient, although it is certainly possible to argue that looked at in a wider context it is in the person's best interests for the tissue to be removed. Indirectly, it may be of huge value to the person that a close relative, for example, will be given the chance of therapeutic treatment by virtue of such a transplant—a relative who may also be a carer, say.

    There are all kinds of scenarios that one can imagine in which the best interests of the person are best served by permitting the donation of tissue. But I am uncomfortable with the thought that a doctor, acting jointly with a relative or attorney, might take such a decision on his or her own. It would be very helpful to hear from the Minister about that. I hope that she will have some sympathy with the argument that I have advanced, because we need to reflect carefully on the issue.

    I have tabled Amendment No. 22, because I feel that many people with physical or mental impairments or with a condition causing diminishing mental capacity are made to feel that other people know best what their needs are. They may be medical professionals, social workers or members of their own family. Someone judged as having little or no mental capacity is much more vulnerable to agreeing to things under duress, not being included in a decision or being made to feel that they have to give a right answer. Many people feel disempowered while in a hospital environment. This amendment would help to protect them from abuses of power and is designed to ensure that independent advocacy is available and that the patient will have an automatic right to a complaints procedure.

    9.15 p.m.

    I support the principles behind the amendments in this group, particularly as regards Amendment No. 20, to which I have added my name and to which the noble Lord, Lord Carter, has already spoken. For the record, I was slightly surprised at even the possibility arising of an organ being removed from a live donor who lacks capacity. That is a very helpful example as it underlines why advance statements might be very helpful as regards the whole field of organ donation. Although someone may be already brain dead, they may have a donor card and be maintained on a ventilator in perfuse, so a perfused organ is being removed. However, as regards the process of decision-making for the family, it may be very helpful to have an advance statement. That is a spin-off. It is lateral to the wording of the amendments that we are discussing, but will the Government consider that in drafting the amendments about advance statements and think about whether the donor problem that we have in the UK might be solved at the same time?

    I am grateful to Members of the Committee who spoke to this group of amendments. I could say a lot about the purpose of Clause 5, but having listened to those who have spoken, I consider that the Committee is fully aware of its purpose. Indeed, we might have a clause stand part discussion in any event. Therefore, I shall work on that assumption and trust that Members of the Committee will intervene if they have a concern that needs to be addressed by further exploring the parameters of the clause.

    Amendment No. 20 was spoken to by my noble friend and the noble Baroness, Lady Finlay. Clause 5(1)(a) states that,
    "before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to the matter in question".
    The amendment seeks to change the wording to,
    "before doing the act, D takes reasonable steps to establish whether P has capacity to consent to the act and must ascertain P's best interests if P is unable to consent for himself in accordance with section 4".
    I welcome the sentiment behind the amendment but I believe that it is already contained within the Bill. The purpose of Clause 5, above everything, is to provide protection against liability where a carer acts when someone lacks capacity and thus cannot consent. So the lack of capacity has already been established for the purposes of this clause. If a person has capacity, Clause 5 is simply not engaged and the Bill is "exited" at Clause 3, if I can describe it in those terms. We have worked through that clause and ascertained when a person has capacity. Therefore, we believe it is appropriate that the reference is to taking steps to establish a lack of capacity.

    The proposed amendment would also stress that, if the person cannot consent, the decision-maker should ascertain P's best wishes in accordance with Section 4. However, the need to consider the person's best interests is already addressed in subsection (l)(b). This provides that, for the protection of Clause 5 to apply, the decision-maker must reasonably believe,
    "that it will be in P's best interests for the act to be done".
    If the decision-maker acts on that basis, the protection that is available in Clause 5 comes into play. That would, of necessity, involve ascertaining the person's best interests.

    I hope that my noble friend will reflect on that as he considers what to do with the amendment and that he will understand that if someone has capacity he or she exits the Bill at Clause 3.

    The noble Earl, Lord Howe, asks a very specific question in Amendment No. 21. As the noble Earl indicated, the protection offered by Clause 5 is aimed at those who actually do the acts in connection with care and treatment that might otherwise incur criminal or civil liability. It is unnecessary to extend the protection to the person instructing the action for two reasons: first, it is unlikely that an instruction to a member of staff to act could of itself create criminal or civil liability. Secondly, even if it did, the amendment is still unnecessary as the instruction would itself be an act to which the Clause 5 protection would apply. So for those two reasons, which I hope completely address the point made by the noble Earl, it is not necessary to accept the amendment, because the fear that the noble Earl expressed would not be realised under the Bill.

    The noble Baroness, Lady Chapman, spoke to Amendment No. 22, which has the effect of placing a series of new duties either on the person performing the act in connection with the care or treatment of the person lacking capacity, or on the Secretary of State. For the decision-maker to gain the protection against liability offered by Clause 5, if it is an attorney, a deputy, or an independent consultee acting in a professional capacity or for remuneration, he must have regard to the code of practice, as Clause 40(4) makes clear. It is important to be clear that any code of practice issue will be allowed to be used as evidence in court proceedings and could be taken into account by a court or a tribunal. It also provides that "P" should have a right of appeal to the Court of Protection.

    I agree that a decision-maker should assist people who lack capacity to find advocacy services where this is appropriate. We agree that the availability of advocacy services is helpful in supporting vulnerable people to live independently and to take as much control over their lives as they can. We will highlight the contribution that advocates can make in the code of practice, and we will stress that under "best interests" decision-makers must consult an advocate if the person who lacks capacity wishes them to do so.

    That is different to setting out a procedural requirement to help the person to find advocacy support in every case, which would be bureaucratic and resource-intensive. Not everyone would want to feel obliged to have an advocate. There are real issues too about how families interact and the support that family members can provide for individuals. We should not presume that everyone wishes to have an advocate any more than we should insist that people have to use their relatives. I am not taken with the idea of making that a requirement. I am also unsure about having to invoke that service in every case, regardless of what the decision might be—it might be to provide a wheelchair, or prescribe painkillers. That would not always be the best use of resources and it would not always target those people who are most vulnerable. We live in a world of limited resources. I would prefer to examine the way in which we support the most vulnerable through independent consultee/advocacy services, and the decisions where that seems most appropriate. It is for those reasons that I resist this amendment.

    I also resist the establishment of a new complaints procedure, because we want to ensure that existing complaints procedures are used effectively—that is often where the expertise lies. That would be the right way forward; a new bureaucracy would be cumbersome to set up. We recognise that the Court of Protection will be available for resolution of cases, including complex or sensitive cases, and that would include cases where urgent medical treatment is needed and serious cases involving ethical dilemmas in untested areas. Clause 22 asks that the person who lacks capacity should have a right of appeal to the court, and we fully agree with that. Under Clause 48, a person who lacks or may lack capacity can make an application to court without first getting permission to defend his rights. Clause 48(1) makes clear that anyone with parental responsibility for a person under 18, a donor or "donee" or lasting power of attorney, deputy, or person named in an order will not be required to obtain permission from the court to apply.

    The amendment also addresses the question of the Secretary of State providing regulations on what constitutes care and treatment. I sympathise with the desire for clarity and for definitions. Inevitably, some of the statutory definitions are inflexible and do not necessarily stand the test for many years. What matters is not how something is defined, but whether it is provided in someone's best interests. Again, I go back to the best interests test. It is then the doctor's duty to provide it. If it is not provided, there may be an issue of negligence, or even gross negligence; for example, manslaughter. That is true now, and it will remain true when the Bill becomes law.

    I move finally to Amendments Nos. 27 and 94. Amendment No. 27 is a rather lengthy amendment that covers several important issues and looks to put procedural safeguards in statute for certain specified treatments. As the noble Earl, Lord Howe, indicated, Amendment No. 94 focuses on organ donation. I agree that my noble friend Lord Carter has highlighted areas about which we need to be rightly concerned and where we want to see medical practitioners operating to the highest standards. I understand why he seeks to set those out in statute. However, I want to set out briefly why such issues are more appropriately handled through either the code of practice or guidance.

    Amendment No. 27 requires that certain serious medical treatment decisions should always be taken to the court. Case law has set out two categories of case that should have prior sanction of the court— sterilisation, where that is not clearly for therapeutic purposes, and the discontinuance of artificial nutrition and hydration for a patient in a permanent vegetative state. The case of Mr Tony Bland has already been referred to this evening. The Government intend the situation in both those cases to continue under the Bill.

    The current law has developed by guidance in case law responding to difficult cases. We want the courts to continue to decide which cases should have their prior sanction, not to create inflexible legal rules that may incur high costs and an often lengthy process of litigation. However, as I mentioned in relation to the previous amendment, it is important to maintain flexibility to provide for new treatments as they arise. For that reason, we consider that it would be most effective to use the codes of practice to specify the situations where decisions should be taken only by a court. Paragraphs 5.21 to 5.24 of the draft code set that out.

    It is unnecessary and inappropriate to require all organ donation cases to be considered by a court. Under the Bill, the removal of tissue for such a purpose would be subject to the best interests test. Again, we are back to that as a core part of the Bill. The storage and use of tissue would also be subject to regulations to be made under the Human Tissue Act 2004. It has already been indicated that those will be consistent with the Bill.

    What is more, donation by living donors—whether competent or not—will be allowed only in accordance with regulations to be made under Section 33 of the Human Tissue Act. Where necessary, cases will be subject to specific approval by the Human Tissue Authority, so a procedure will be available for the protection of persons without capacity. The regulations will be made by affirmative procedure, so will be subject to the scrutiny of this House.

    Amendment No. 27 also requires certain categories of treatment to be subject to an independent second opinion. Again, I understand that the amendment aims to protect people from exploitation or from decisions being made as a result of inappropriate value judgments. However, where serious decisions are being considered, there are already adequate safeguards under the Bill. When a treatment has particularly serious consequences or where a doctor has some doubt about how to proceed, it is already standard practice to gain a second opinion. We want that practice to continue.

    Under the best interests criteria, professionals would be expected to consult fully about serious decisions, and it would be open to family or friends to ask for a second opinion, if that had not already happened. Any disputes that could not be resolved locally could ultimately be taken to the Court of Protection. We have also provided for an independent person to be consulted when serious medical decisions are taken for people who are "unbefriended". That independent person can ask for a second opinion if they have any concerns.

    I support the intention behind my noble friend's amendment—to make sure that right procedures are followed at all times, not left to individual good practice. I hope that Members of the Committee will recognise that, although we agree with the need to take certain cases to court and for a second opinion to be provided wherever it is asked for, it would be bureaucratic and inflexible to provide such safeguards in the Bill. It is the inflexibility about which I would be most concerned. We believe that the best place is the code of practice, which reflects existing best practice. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.

    9.30 p.m.

    I am grateful to the Minister for an extremely full explanation. Obviously, I shall want to read it and then consider what to do.

    The Minister remarked that she wanted the courts in certain areas—I believe she mentioned sterilisation and organ donation—to continue to make the law under the common law. I was struck when she said that by the quotation I gave at Second Reading from the noble and learned Lord, Lord Browne-Wilkinson, on the Bland judgment:
    "I have no doubt that it is for Parliament, not the courts, to decide the broader issues which this case raises … it seems to me imperative that the moral, social and legal issues raised by this case should be considered by Parliament".—[Official Report, 10/1/05; col. 45.]
    It was put in even stronger terms by the noble and learned Lord, Lord Mustill.

    I am grateful to my noble friend. I referred to cases of artificial nutrition and hydration in areas concerning a vegetative state, and to sterilisation. I did not say organ donation. In fact, I said the opposite: that I did not think that those cases should always end up in the courts. I would maintain that what was meant by the remarks of the judge in that particular context is met by the Bill.

    Amendment, by leave, withdrawn.

    [ Amendments Nos. 21 and 22 not moved.]

    On Question, Whether Clause 5 shall stand part of the Bill?

    I should like to spend a brief time on this Question to raise what I consider to be quite a major matter bearing upon the clause.

    Clauses 5 and 6 provide powers to restrain incapacitated patients provided that such restraining actions fulfil certain conditions, which I shall not enumerate. It is therefore clear that the Bill can be used as authority to override physical non-compliance and objections to treatment by incapacitated patients.

    Under present law, outside of Mental Health Act powers, authority for imposing treatment upon non-compliant incapacitated patients may be had under common law principles of necessity. The Bill appears to extend such powers of restraint to allow detention in hospital. Here, it comes into contention with the existing statutory powers of the Mental Health Act 1983, and how the two legislative structures are to co-exist needs to be determined.

    Clause 28 provides the explicit link with the 1983 Act. Without reading out Clause 28, several things become apparent from it. Where an incapacitated patient is detained under a section of the 1983 Act to which Part IV of that Act applies, the powers and safeguards provided by the Act in respect of the treatment of their classified mental disorder may not be overridden by any power provided by the Mental Capacity Bill. But the Bill may be used as the authority to provide treatment for physical disorders or for mental disorders outside those classified in the Mental Health Act detention documentation, the exception being neurosurgery, which is covered by Section 57 of the 1983 Act.

    Where an incapacitated patient is subject to a section of the 1983 Act to which Part IV of that Act does not apply, the powers of restraint in this Bill must be relied upon as the authority to provide treatment for mental or physical disorders

    In so far as the Bill only codifies common law justifications for restraint and coercive treatment, the overall effect of it as set out in Clause 28 is similar to the current position in law. However, as the Bill's powers may also extend to authorising detention in hospital and similar deprivation of liberty, there would appear to be contention between the Bill and the 1983 Act in relation to what authority may be appropriately used or available for extended deprivation of liberty that may amount to detention.

    The Bill is explicit over the relation between its powers and those of the 1983 Act only where a patient is already subject to the treatment powers of the 1983 Act when treatment is proposed. As such, the Bill fails to indicate how medical professionals are to choose between the two statutory frameworks where a mentally incapacitated patient is subject to neither the Mental Capacity Bill nor the Mental Health Act 1983 when treatment is proposed. The problem is, therefore, to determine how to identify the circumstances in which each statutory framework would be most appropriate.

    The criteria for detention under the 1983 Act are relatively more exacting than those for the Mental Capacity Bill. For the former, detention must be justifiable as necessary for assessment or treatment and so on; whereas for the latter anyone who lacks mental capacity to make decisions is a qualifying patient for the application of powers.

    Powers of treatment are also subject to stricter conditions in the 1983 Act than under the Bill. It might be assumed generally, therefore, that the Bill as a codification of the common law will always present the less restrictive option than formal detention under the Mental Health Act.

    Under Clause 5 the range of interventions that can be described as care and treatment, and which might amount to deprivation of liberty, extends from the most commonplace actions to serious psychiatric interventions. This makes it difficult to see how a solution to the problem of the relationship between the Bill and the 1983 Act might fall to a question of which treatments might be reserved to one statutory framework or the other. If we were to try to exclude some types of intervention from the scope of the Bill, we would find that the equivalent of common law powers were no longer sufficient authority to give life-saving electro-convulsive therapy, for example, without valid consent, or to administer even routine and relatively non-invasive courses of psychotropic medication to incapacitated patients. This would be likely to increase the use of formal detention in hospitals where the only justification for such detention would be the imposition of treatment that could previously be given on an outpatient or community basis.

    At present the Bill appears to trump the 1983 Act as the route for legal authority to treat any patient who is incapacitated by their illness, whereas the Mental Health Act will remain the only option for coercive treatment of mental health patients who retain mental capacity to make decisions. I hope that I am correct in saying that. That raises two important points. Clauses 5 and 6 appear to stretch the common law and go beyond the 1983 Act powers. One has to question whether the Bill as drafted includes sufficient procedural safeguards such as review and appeal: that is, safeguards against misuse of the powers.

    Perhaps I may ask the Minister this question. If the effect of Clauses 5 and 6 are to be such that an incapacitated patient may be detained under its powers, when, if ever, might it still be appropriate to use the Mental Health Act for such a patient? Is a distinction to be made between compliant and non-compliant patients and, if so, what is it that the patient should be compliant or non-compliant with that makes that distinction?

    Will other supportive accommodation include prisons and detention centres? I have today been to the prison group and we have heard of the suicides in prison and the enormous number of mentally ill people who are detained in prison. The suicide rate of women is appalling. Will the Bill include prisons?

    I draw the Committee's attention to the report of the Joint Committee on Human Rights published yesterday. In discussing this issue, paragraph 4.8 states:

    "The Government states that the Bill's provisions about restraint 'do not permit deprivations of liberty within the meaning of Article 5 ECHR. Restraint is defined as including restriction of liberty. The Government has never intended this to include actions which would amount to a deprivation of liberty for Article 5 purposes'. This makes clear that the power to restrain is not intended to be interpreted as authorising deprivation of liberty and therefore engaging Article 5".
    Paragraph 4.9 states:
    "The Government's response meets our substantive concerns in relation to involuntary placement. This should be made clear on the face of the Bill, bearing in mind that what is at stake is the liberty of the person. We therefore invite the Government to consider amending the Bill to make clear, for the avoidance of doubt, that "restraint" in the Act does not include deprivations of liberty".
    Therefore, while what the Government has said goes some way to meeting the concerns that have been rightly and properly expressed by the noble Earl, Lord Howe, the Joint Committee felt, again rightly, that it would be desirable for the Government to put on the face of the Bill that "restraint" does not include a deprivation of liberty. That would go some way to solving this problem, because it is certainly not obvious on the face of the Bill, as it now stands, that Clause 5 could not apply to a deprivation of liberty.

    I am grateful to the noble Earl, Lord Howe, for raising the issue of the interface between the Bill and the Mental Health Act 1983, and also to the noble Lord, Lord Goodhart, for reading precisely the same extract that I had intended to read out from the report of the Joint Committee on Human Rights.

    In response to that, having only had that report for 24 hours, I am not in a position to say precisely what we will do, but I shall look carefully at the committee's recommendations. In a sense, we are almost pre-empting subsequent groups of amendments, which examine the issue of the Bournewood gap or "chasm", as it was referred to by a noble Lord during Second Reading. I am also conscious of the time, regarding the subsequent groups. Perhaps I may place on record again that we are looking at the recommendations of the Joint Committee on Human Rights and endorse the extract read out by the noble Lord, Lord Goodhart, about its concerns and the reassurance that it believes has been given by the Government around the issues of restraint and deprivation of liberty.

    I will read with great care the detailed set of issues raised by the noble Earl, but I wish to deal with the principle matter, as I saw it, regarding whether the Mental Capacity Bill trumps the Mental Health Act. The short answer is no, it does not. I shall explore that a little more and go some way towards addressing the concerns without straying too much into the issues of the Bournewood gap.

    The Mental Health Act 1983 provides the power for patients with a mental disorder to be detained when it is necessary for their own interests or the protection of others. Once detained, they can be treated for that mental disorder without their consent, subject to various safeguards. Clauses 5 and 6, in contrast, provide a defence, as we have discussed, for acts in connection with care or treatment which would otherwise be unlawful. Most medical interventions would be caught by the tort of battery, if undertaken without consent. Acts which involve restraint are covered by the Clause 5 protection if the strict criteria in Clause 6 are met.

    Clause 6(4) defines restraint as including a restriction of "liberty of movement". However, the Clause 5 defence would not apply to an act that deprived a person of his liberty, for the purposes of Article 5 of the European Convention of Human Rights. Nothing in Clause 5 or 6 allows anyone to be detained. Therefore, there is no question of these clauses trumping the Mental Health Act in such cases.

    I wish to say a little about Bournewood to complete my answer to that specific point. We recognise that in the light of the Bournewood judgment there is a group of patients who have not been detained in the past under the Mental Health Act and who do not need to be subject to that Act, but who must now be considered to be deprived of their liberty and will, therefore, fall outside the scope of Clauses 5 and 6. As the noble Earl knows, and as we shall discuss, we are looking to bring forward proposals for new procedural safeguards for that group and to provide an appropriate legal basis for their care and treatment.

    I hope that goes some way to tackling that interface question. Combined with my commitment to look at the issues raised by the Joint Committee on Human Rights and to follow up on further points made by the noble Earl, Lord Howe, I hope he feels able, at this stage at least, to allow Clause 5 to stand part.

    9.45 p.m.

    I am grateful to the noble Lord, Lord Goodhart, for his remarks, and also to the Minister whose reply I found extremely helpful. As she recognised, the issues I addressed were only tangential to the Bournewood issue because they focus on non-compliant individuals rather than compliant ones. However, she is right that there is perhaps a double-interface here with the next group of amendments. I am grateful that she will give further consideration to the points I have raised and in the mean time I do not propose to obstruct the passage of the clause.

    Clause 5 agreed to.

    Clause 6 [ Section 5 acts: limitations]:

    moved Amendment No. 23:

    Page 4. line 15, after second "is" insert, at that time and in relation to the circumstances of that time,"

    The noble Lord said: This amendment and those grouped with it—Amendments Nos. 24 to 28, 53, 54, 78 and 79—all have my name on them and are to deal with the Bournewood gap. I will do my best to be brief, but it is a big subject.

    During the progress of the Bournewood case through the English courts in the late 1990s, the governing evidence included estimations of the numbers potentially affected by the lack of safeguards for people lacking capacity who were given psychiatric treatment without their consent and whose personal liberties were put in question. Figures given during a hearing in 1998—they are likely to be lower now— were drawn from information provided by the Mental Health Act Commission and the Department of Health. If in-patients who lacked capacity and who were treated informally were brought within the provisions of the Mental Health Act, this evidence stated that an additional 22,000 people had come under formal statutory provision. There are 14,000 patients detained under the Mental Health Act on any one day. The statistics speak for themselves.

    Understandably, the driving force in the Government's case was to contain the burden on hospital administration by denying, as they did, statutory safeguards in the Mental Health Act to such patients. It was accepted by all concerned that placing Bournewood patients under the formal provisions of the current Mental Health Act was not the only or best means of ensuring that important safeguards were extended to them. The Government recognised that a different and more appropriate set of safeguards would meet the requirements of the European Convention when they drafted the 2002 version of the draft Mental Health Bill. That Bill included a special part containing a detailed safeguard for people lacking mental capacity. These provisions were in fact cited by the European Court of Human Rights in the course of the Bournewood judgment, with a clear inference that they were effective proposals for legislation.

    As we know, these provisions have been left out of the 2004 draft Mental Health Bill, and the Government have subsequently completed on a different provision within this Bill for independent consultation on certain important decisions affecting changes in accommodation for a minority of people who lack capacity—that is, the independent consultee. These provisions have been the subject of extensive debate, and the Government no longer argue that the independent consultee provision meets the case for safeguards against unlawful detention for medical treatment. This is interesting. I will come to this point later about whether it is possible to do something about Bournewood in this Bill, but in the draft mental health legislation there were provisions which the European Court said were acceptable if they were brought into law.

    I am afraid the Government do not have the luxury of time to delay on this matter. The judgments have authoritatively stated a range of safeguards that should apply. They are living law, under which numerous applications will start to flow on behalf of those whose relatives and representatives can access the legal process. As we know, the Mental Capacity Bill as it is presently drafted is not consistent with the judgment in Bournewood. If the Bill becomes law without amendment, it will automatically become open to challenge.

    In Clause 6, the Bill allows for the proportionate use of force and the restriction of liberty to prevent harm to a person who lacks capacity. This amounts to a bare statement of the current common law doctrine of necessity. The European Court of Human Rights explicitly rejected the legality of relying on the doctrine of necessity. There are no safeguards attaching to the provision as it appears in the Bill. Those providing and receiving care under restraint, restriction of liberty or force must continue to rely on common law decisions, and the courts have already spoken.

    We know that the Department of Health has issued guidance on the matter, and I believe that it has already met a certain amount of criticism. It relates entirely to detention. It makes the point that the courts stated that deprivation of liberty must be considered in relation to a particular case, taking into account the type, duration, effects and manner of implementation. The guidance states that the distinction between the deprivation of and restriction on liberty is merely one of degree or intensity and not one of nature or substance.

    In clinical practice, we know that patients are commonly given medical treatment while incapacitous but compliant; for example, prior to Bournewood, patients who were either in a home or admitted to hospital informally, who lacked capacity but who were compliant, who then required a course of electro-convulsive therapy (ECT) would be detained under the Mental Health Act. This in turn would require an independent second medical opinion under Section 58 of that Act to confirm the need for the treatment, in addition to giving the patient or relatives the right of appeal. Since Bournewood, such cases are treated under common law on the doctrine of the patients' best interests.

    As I understand the position, the Mental Capacity Bill would not change the situation. Furthermore, proposals in the draft Mental Health Bill, which we are now considering in the Joint Select Committee, make it clear that a new Mental Health Act can be used only if there is no other lawful way to give the treatment. There continue to be real concerns about the lack of statutory second medical opinions related to specified treatment or groups of treatments. This role is different from that of advocate or independent consultee, and it relates to the medical need for the medical intervention.

    I have a few final word on costs, which is the major problem for the Government. I understand and sympathise, as there could be a substantial resource implication. It occurred to me that we should be looking at the marginal costs. Many of the patients will already have costs attached to them, and it would be wrong to double-count the costs by including in the costs of Bournewood the costs which already apply.

    Concerns about the costs of introducing procedural safeguards for Bournewood patients have centred on comparisons made with Mental Health Act procedures at the time of the House of Lords appeal in 1998. This is

    no longer the only or the best base of comparison. The financial costs of safeguards may exceed, equal or be outweighed by the benefits. Such analyses are unavoidable at the margins—that is, as between the alternative systems of safeguards—but the need for safeguards is not negotiable. There must be safeguards against the institutional unlawful detention of vulnerable people.

    The costs will apply to the additional procedures for administration; the professional certification, assessment review and care planning; the giving of evidence to the Court of Protection; the wider range of bodies which will be liable to implement procedures; the possible increase in sectioned patients; and the Government's review on resourcing safeguards for people potentially affected by the Mental Health Bill. It is not at all clear what is the Government's latest view of the numbers of people who may be involved. A figure of up to 50,000 has been mentioned.

    The impact of the procedures will be reduced by applying the current good practice in health and social care; by social services reducing the weight given to risk in assessments in favour of retaining more choice for service users; and controlling the number of people who are placed under conditions of detention. The costs of unlawful or unregulated detention can be high.

    I sum up the problem as I see it and the routes the Government might take. I have already said that there is an example in the draft Mental Health Bill that was produced in 2002. Those provisions met the requirements of the European Court, and I ask the Minister to consider that. She need not reply to me today, but perhaps she will reflect on it to see whether there might be a way forward. There appear to be three possibilities for the Government. The first is the suggestion I made at Second Reading, which is to put in the Bill the criteria that will deal with this and then to take order-making powers to implement the detail when the time comes and when the Government have completed their consultation and calculations. I understand that my noble friend has had some discussions about this and it might not be possible if the order-making power is much too wide and if the criteria cannot be specified. But, of course, the criteria are in these amendments and could be teased out of them.

    The other possibility is a small Bill, perhaps in the autumn when there is time, or the new mental health Act, which might not be available until 2007. If the Government do not deal with Bournewood in this Bill, after it receives Royal Assent and becomes law, which I am sure it will in the spring, perhaps in March, it will not be available in all its component parts until 2007. We will have the Mental Health Act 1983, which we know does not meet Bournewood, the Mental Capacity Act 2005, which, as drafted, does not meet Bournewood and which will not be fully operational until 2007, and the chance of a new mental health Act

    in 2007. It is a real problem for the Government. I do not have any solutions; I can only describe the problem. I beg to move.

    After that excellent exposition by the noble Lord, Lord Carter, there is not a great deal more that one would wish to say. But there are one or two points. I talked about the Bournewood chasm. That was as a result of work that we have been doing on the mental health scrutiny committee. The number of mental health patients who are, or could be, in this position is huge. The number of people detained in significant ways and at different times is far greater than has been suggested.

    The second point is that a number of noble Lords talked about hospitalisation. I do not think that that is the right word to use because, if one thinks about this in detail, there are many people who lack capacity. Many elderly people are not in hospitals, but in care homes. Given their lack of capacity, they could equally be described as being in this gap.

    That is why the noble Lord, Lord Carter, is right to talk about the Government's three options. He is also right that the Government do not have time. There are now many people who have not only looked at the European Court judgment but who also grapple with the Department of Health's confusing guidance on continuing care, and have done so for a long time. There is a groundswell of people who are beginning to see that this is potentially a route to addressing a question that has been left undecided by the Department of Health for far too long. It is in the Government's interest, apart from anything else, to come forward, not with a solution but, if I can characterise the speech of the noble Lord, Lord Carter, with a statement about what the vehicle for the solution will be.

    The noble Lord, Lord Carter, was quite right that the Bill will not be enacted until 2007. There are real questions about when, if at all, the new mental health legislation will emerge. He is also right that this matter needs to be addressed. All things considered, and not least because it is clear that detention is taking place on a large scale that has hitherto been unrecognised, it is in the Government's best interest—I shall be an advocate for the Government tonight—to look at the three options outlined by the noble Lord, Lord Carter. I think that his suggestion of a small, stand-alone Bill in the autumn is the way. The sooner the Government arrive at that conclusion about that being the route, the better for all concerned.

    10 p.m.

    I am grateful to my noble friend for raising that issue, but I was hoping that he would provide a solution. I am always pleased when the noble Baroness, Lady Barker, is working in our best interest too.

    Perhaps I may take Members of the Committee through those issues reasonably briefly and explain where we are, which I hope will help them to understand the issues properly. For the benefit of any Member of the Committee who does not know about the "Bournewood" judgment, this was a judgment by the European Court of Human Rights that involved the case of a "Mr L", who was a compliant, incapacitated patient admitted for treatment to Bournewood hospital—hence, the word, "Bournewood"—following an acute episode of self-harm.

    I shall not go through all the details, although if any Member of the Committee is interested, I can supply them. This judgment was deemed by the European Court of Human Rights to have unlawfully deprived "Mr L" of his liberty under Article 5 of the European Convention on Human Rights. We have said very clearly that we need to carry out a full consultation on that very complex case, which the Department of Health plans to launch as soon as possible. I shall keep Members of the Committee updated on that.

    I recognise that the timing of the judgment and the consultation is not great. Many concerns have been expressed that we should take the opportunity of this Bill to take the powers necessary to deal with the Bournewood issue. I appreciate that my noble friend is trying to be helpful by casting much of the new clause in terms of a regulation-making power, so that not all the detail needs to be settled in advance of consultation. However, even those provisions would preclude the consultation necessary on certain fundamental issues.

    As my noble friend has said, the approach is similar to the 2002 version of the draft Mental Health Bill. But where my noble friend is not quite right is that that, of course, addressed the Bournewood problem as we understood it at the time. It does not address particular issues that were raised by the judgment of the European Court of Human Rights, which are fundamentally about the procedures of admission and detention. In a sense, we cannot go back to the 2002 draft Mental Health Bill and look for solutions in that. We will have to explore much more thoroughly in our consultation what we need to do.

    I could spend time going through the technical problems with my noble friend's amendment, but I know perfectly well why my noble friend has tabled this; that is, for us to have this initial discussion about those issues. One particular point that I would raise with my noble friend is that the amendments appear to establish a power for decision-makers to deprive mentally incapacitated people of their liberty through Clause 6. I want to be clear that Clause 6 is about restriction not deprivation of liberty. The powers ensure a person is not liable for criminal or civil proceedings as long as the proper procedures have been followed. But they do not provide a proper framework for deprivation of liberty.

    To use classic examples, it applies to situations such as holding someone's hand when crossing a busy road if you know that the person has a habit of disregarding traffic, providing headgear to someone who bangs his head against the wall when getting distressed in a classroom and so on. It is not about an appropriate vehicle to establish a power to deprive liberty.

    Of course my noble friend has indicated some very detailed proposals in his amendments. At this point, we are not trying to say precisely which sort of cases would be covered. Noble Lords will not be surprised that I cannot indicate the numbers, which vary quite a lot depending on the interpretations that we need to think about from the European Court of Human Rights.

    Before consulting widely, we cannot make an assumption that the same detailed procedures would be either appropriate or proportionate in all cases. As the noble Baroness, Lady Barker, said, we are talking about a range of different: people, some of whom may be in care homes, perhaps suffering from dementia, through to those who find themselves in mental health establishments for very serious treatment. We need to think carefully about what we will do about that.

    So the issues that we are seeking to resolve in our consultation are: first, identifying relevant cases where there is a deprivation of liberty. There is no clear legal definition that will resolve the issue. We shall have to consider carefully the facts of a range of potential situations. Secondly, as my noble friend said, we are determining the appropriate safeguards. We need to seek safeguards that will avoid an unnecessary increase in the number of people being detained under the Mental Health Act and which will be appropriate to people's circumstances.

    We need to resolve, thirdly, the proper role of third parties—family, friends and advocates; and, fourthly, the strategies we need to prepare to implement the changes that we want to make. We cannot move as quickly as we would like on those areas, particularly on this Bill. I do not want to rush the consultation and, more importantly, the Department of Health does not want to, because these are significant matters.

    As my noble friend said. I have raised the issue with the Delegated Powers and Regulatory Reform Committee. I sent a letter today to the noble Lord, Lord Dahrendorf, and I have had an informal discussion with him about whether we might be in a position to take a regulation-making power. Noble Lords have indicated the three options available to us.

    I have to say that the power would be exceptionally broad: I simply leave that on the table. I recognise that it would also include Henry VIII powers, with which noble Lords are fully familiar. There is the issue of a free-standing piece of legislation, which is the area for which I felt there was greatest support. As my noble friend said, there is also the potential of the Mental Health Act.

    I shall feed back comments to colleagues in the Department of Health: also the comments about the interim guidance that has been produced. There are copies in the Library should any Member wish to look at them. On the basis of what I have said about the process in which I am now engaged, and our desire to seek an appropriate speedy "yes", but having carried out the consultation properly, and having worked out precisely what the judgment is inviting us to do, I hope that my noble friend will feel able to withdraw his amendment.

    I am extremely grateful to the Minister for that reply. Obviously, I shall not take up the Committee's time now. However, I believe that in December 2004 there was a case that was also on the lines of HL v UK. If we are not careful there could be a large number of such cases. I understand that the Government are between a rock and a hard place, but I am not sure that they will not have to try to do something in the Bill, at least to hold their position, until they can bring forward a Bill, perhaps in the autumn. I beg leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    [ Amendments Nos. 24 to 27 not moved.]

    Clause 6 agreed to.

    House resumed.

    House adjourned at eight minutes past 10 o'clock.