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Mental Health Bill [HL]

Volume 688: debated on Wednesday 10 January 2007

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved accordingly, and, on Question, Motion agreed to.

House in Committee accordingly.

[The LORD SPEAKER in the Chair.]

6: After Clause 3 , insert the following new Clause—

“Impaired decision making: admission for assessment and treatment

(1) The 1983 Act is amended as follows.

(2) In section 2 (admission for assessment), after subsection (2)(a) insert—

“(aa) because of his mental disorder, his ability to make decisions about the provision of medical treatment is significantly impaired”; (3) In section 3 (admission for treatment), after subsection (2)(a) insert—

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

The noble Baroness said: Following what I believe was commonly considered an excellent debate on Monday, we return to detailed and important aspects of the Mental Health Bill. On Monday, Members of the Committee considered the purpose of mental health legislation. We had a long discussion on matters of principle. It was clear that, although we have deep differences of opinion about this legislation, there is commonality regarding the end that the Government and the Opposition seek; that is, legislation which is fair, transparent, and is trusted by those who are subject to it and those who have to implement it. One of the main reasons this amendment is tabled is to try to achieve that.

I remind the Committee of our discussion on Monday. The Bill, as it stands, has a very wide definition of mental disorder. We heard why, unlike any other jurisdiction in the world, the Government are unwilling to accept any exclusions to that. As we shall discuss in detail, there is a very wide definition of what appropriate treatment for mental health conditions should be. That is the context within which we need to consider this proposal. Before a person is subject to compulsory powers under Part 2 of the 1983 Act, it would impose an extra condition that the person has impaired decision-making ability. It is important to set out at the beginning precisely what is meant by impaired decision-making ability. We may hear many Members of the Committee talk about capacity and capacity tests. It is important to draw a distinction here. I am sure that Members of the Committee will understand this, but for the benefit of those who do not I should make clear that capacity tests—I refer to the one that we are perhaps most familiar with as we debated it at length when we discussed the Mental Capacity Act—are usually measures of a person’s cognitive ability; their ability to make a decision. However, Amendment No. 6 describes something different—impaired decision-making. A person may have the ability to reason and to make decisions, but by dint of their mental disorder those decisions may be unwise or impaired.

I will try to explain this with the example of an older man whom I knew who had dementia. One evening he told me, at considerable length, about a film he had watched. He described it as a good political exposition of the position of working-class people in America and how they had suffered in consequence of the economic policies pursued by the Reagan Government. It was a cogent and persuasive argument which made me rather want to run off to, say, the National Film Theatre to see this really heavy film. The problem was that the actual film he was talking about was a light piece of comedy which I think the Americans would describe as a “screwball comedy”. The person’s cognitive abilities and capacity to reason were not diminished, but they were wholly and completely misplaced. One was able in that context to make a judgment that his decision-making ability was impaired.

I hope that example enables your Lordships to draw a distinction. Many mentally ill people are very intelligent and retain an ability to make complex decisions but their overall ability to make decisions—particularly about their treatment—may be impaired as a function of their disorder. That is why Amendment No. 6 is not talking about the test of a person’s capacity, as one would be under the Mental Capacity Act.

Why should we include such a provision in the Bill? As we said on Monday, many thousands of people who are mentally ill are subject to compulsory treatment. Yet many of them retain full decision-making capacity and an ability to make decisions about their treatment, including the refusal of treatment. It is an omission in the 1983 Act that they do not have the power to do so. Any other patient subject to other forms of medical treatment has such a power. Any other individual with capacity has the right to refuse medical treatment however ill-advised it may be, even to the point of refusing treatment that would sustain their life or would almost certainly bring about death. For centuries we have bracketed all mentally ill people as being unable to make those decisions, but it is not true.

In mental health, as in all other aspects of healthcare, there is a growing recognition that the involvement and compliance of patients in their treatment, and in maintaining their treatment regimes, rests on their ability to be part of the decision-making about it. It is therefore something of an anachronism to say that people who are subject to mental health treatment should not have that ability. It also causes clinicians problems.

There is another reason why we believe that this amendment is right at this time. It has been said by some of the small handful of psychiatrists who oppose the views of their royal college, and who are deeply supportive of the Government’s existing proposals in the Bill, that it would be impractical or impossible for them to implement an assessment or test of a person’s daily decision-making ability. I believe that that statement is wildly untrue. Not only professionals in the mental health system but many other professionals, such as policemen, social workers and those who work with prisoners who have mental disorders, make judgments on a daily basis about people’s capacity. They have a finely tuned sense of people’s capacity to understand, to retain information and to make decisions about their own care. That is part of good practice.

Furthermore, it is becoming more common in mental health to use tests of capacity. That is one of the reasons why they have been used in Scotland. The test for significantly impaired decision-making is a feature of Scottish legislation. It is something that clinicians need to do before reaching decisions on compulsion and treatment. We have had the concept of capacity in mental health legislation before. It is an important and accepted factor in decisions about ECT and psychosurgery.

Why do we believe that it is important to include such provision in the legislation? If people have the right to have their decision-making ability taken into account, and therefore retain some decision-making capacity about their treatment, they will be more likely to present themselves for treatment in the first place and to comply with it once it is recommended for them. That probably also applies to people who have fluctuating capacity. It is well known that in many mental conditions a person’s capacity to make decisions changes. Clinicians have recognised and have had to deal with that fact for many years. Clinicians are not in the habit of making an assessment of a person on a particular day, assessing their capacity to make decisions at that moment and promptly ceasing all treatment at that point. They usually continue to monitor people over a period of time. They take into their decision-making their calculations on what someone’s ability to make decisions would be in the future.

It has been alleged that people on this side of the House are unnecessarily antipathetic to the use of compulsion, but it is not true. We accept that there always has been and always will be a need for some people to be treated under compulsion. However, many of us who served on the joint scrutiny committee spent a considerable time listening to service users. Anyone who did so could not fail to be moved, or at least to come away with knowledge of the extent to which compulsion affects patients. It is a frightening process to go through. Patients talked to us about being subject to compulsory treatment in crisis situations, but they also talked about the effect of being subject to compulsion on a more routine basis. They said that once you have been subject to compulsion, your ability to make decisions about anything, no matter how minor, can just go. Frustration and rage builds up in people when they have been put into a position where they are not permitted to make even small decisions which in any other circumstances would be deemed reasonable. That is not only a source of immense frustration but it leads in some cases, according to our witnesses, to violence and non-compliance with treatment.

I am grateful to the royal college, which has furnished us with research into the issue of impaired decision-making. The research was conducted by Professor Szmukler, dean of the Institute of Psychiatry at King’s College, and involved patients on medical wards at King’s College and 112 psychiatric patients at the Maudsley Hospital. He found similar percentages of patients with impaired capacity in both locations. He did not find a significant difference in the reliability of the capacity assessments that had been made.

There are two reasons to adopt the proposal in Amendment No. 6. From April 2008 practitioners will be forced to assess a person’s capacity because the Mental Capacity Act will come into force. They will have to decide, on a daily basis, whether those who present to them should be treated under the Mental Health Act or the Mental Capacity Act. There may be voices from a small element of the profession saying that that is not common at the moment, but it will be—just as it will for all the other professions that will have to implement the Mental Capacity Act and that have been developing their skills and training over the past two years.

The final reason why we should adopt the proposal is that it will force clinicians to focus on the issue of a person’s capacity. I am persuaded that causing them to do so will better enable them to identify the patients who do not recognise their own illness. I am thinking in particular of patients who experience hallucinations and believe they hear voices telling them to do things. Patients who undergo that sort of experience, who know that it is part of their illness and have a degree of decision-making capacity, often present themselves for treatment because they know that they are becoming ill. Patients who experience such conditions but do not recognise them, and whose decision-making ability is impaired, often do not. Sometimes such patients present the most serious risk.

Other provisions in the Bill extend compulsion. In the view of noble Lords on this side of the House, those measures are likely to make people fearful of approaching mental health services. I believe that this provision is an important safeguard. It is also an important discipline for practitioners which will require them to focus on the individual’s capacity to make decisions. It will help to bring about a state of good practice whereby those who retain full capacity to make decisions will be able to do so. That will increase overall take-up and lead to greater safety and security. I beg to move.

With this amendment we have reached a watershed issue. The challenge to the Government is straightforward. They have to justify why a patient with cancer, provided that he has capacity, may validly refuse treatment for that cancer, but a patient with a mental disorder who retains full capacity may not validly refuse treatment for the mental disorder, even though he may still validly refuse treatment for cancer. That is the first question that the Minister needs to address before any other.

This amendment moves us into a completely new environment for the care of the mentally ill. It is an environment that reflects today’s values, rather than the values of the past. I would characterise today’s values as those which seek to put the patient at the centre of decision-making about his or her care and which shift us consciously away from putting mental illness into a compartment that is quite separate from all other illness. That tendency is what we mean when we speak of discrimination against those who are mentally ill, and it is exactly that discrimination which, when promoted and practised, leads to the stigma to which many noble Lords referred powerfully in earlier exchanges.

I hope that all of us in this debate take as our starting point the firm conviction that compulsory powers should be used only as a last resort when people are very seriously ill. The idea that someone could be forcibly detained when he or she was not seriously ill is, I hope, anathema. If someone with a mental disorder has reached a stage where they are a danger to themselves or to others, it is axiomatic that their state of mental illness is serious. But this amendment takes us further. The noble Baroness, Lady Barker, has taken us through the amendment and the reasoning behind it. She has explained most cogently why a test of impaired decision-making makes sense. One needs to emphasise that the impaired decision-making should specifically relate to whether to accept care and treatment. Does the patient’s mental disorder make him unable to take a rational view on that matter?

The Government’s central objection to a test of that kind is that there is no proven correlation between the severity of a condition and the loss of mental capacity. It is possible to imagine—one does not have to imagine it, because it happens—someone who poses a risk to themselves, but who also retains cognitive decision-making capacity. That is precisely why the noble Baroness was right to say, as I understood it, that a straightforward capacity test would not work in this context. A test of impaired decision-making, on the other hand, does not fall foul of that objection. The difference between capacity and the ability to take a balanced and rational decision about one’s own care may be difficult to assimilate, but it is significant. You can retain cognitive capacity and, indeed, decision-making capacity, about many aspects of daily living—going out shopping, taking the car out, taking the dog for a walk or whatever—while nevertheless being unable to take a balanced and rational decision about your own care and treatment. The distinction takes us away from pure cognitive ability into the realm of the emotions—the way in which one sees the world. The concept of mental capacity does not deal easily, if at all, with the emotions. Rather, it is concerned with the ability to understand, retain and communicate information. Very many people with mental illnesses have no difficulty doing that.

The British Psychological Society stated in its evidence to the joint scrutiny committee:

“We believe that the vast majority of patients currently detained under the Mental Health Act (1983) who have serious mental illnesses would quite clearly be demonstrably and significantly impaired in their decision making because of their mental disorder. We believe that psychologists and psychiatrists already make these judgements frequently in their clinical practice”.

If there are individuals who are seriously mentally ill and who pose a risk but retain, nevertheless, decision-making capacity about their treatment—there may not be many of them—what are we to say? How should they be dealt with? 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. People who have mental illnesses know what works best for them and what treatments they absolutely cannot tolerate. Why should the law allow for their wishes to be over-ridden? Why should those people not be allowed to put up with the unpleasant symptoms of their illness if that is what they genuinely would prefer to do? What is the justification for making a distinction in law between the patient with mental illness and the patient with cancer?

Those are the questions I posed when I began: they are the questions I again pose. The Minister should be in no doubt as to what we are saying with the amendment. We are saying that the law is out of date. We are saying that we have an opportunity to do something major to tackle the perennial and worsening problem of discrimination against the mentally ill. I hope that we can seize that opportunity.

First, the noble Lord, Lord Rix, sends his apologies to the Committee. He is quite unwell and has gone for some tests. He has asked me to give his apologies for not being able to speak to the amendment about which he felt passionately.

In adding my voice to the amendment—it is probably one of the three most important amendments we have tabled—I do not wish to repeat what the noble Earl, Lord Howe, and the noble Baroness, Lady Barker, have already said. They have been eloquent in their statements and I fully support their arguments. I wish to talk about the clinical realities of daily life as a psychiatrist and why I and my colleague professionals believe that it is time to introduce this extra criterion. I shall mention assessing capacity and decision-making because I have heard quite a lot of nonsense talked outside the Chamber about the process; it is really quite straightforward.

I also wish to mention the extraordinary impact on the culture of psychiatric practice which the current discriminatory legislation produces and, most importantly in this Chamber, why there are fears that this would lead to mentally disordered people being excluded from care and treatment. I believe that to be completely wrong. It is also extremely important in the other Chamber, whose Members receive many letters about people who it is felt might be excluded from care and treatment because of current proposals.

The small country north of the Border, to which we referred on Monday, has already adopted this measure in its new mental care and treatment Act 2003 with no adverse consequences at present on the care and treatment of mentally ill people in Scotland. I accept that there is only a year or so of experience on which to judge but so far there are no great disasters.

I do not believe that the amendment will change who is detained and who is compulsorily treated since by the time someone is sufficiently disturbed that they satisfy the criteria of detention—that is, that they have a disorder of a nature or degree which warrants detention in hospital and it is in the interests of their health and personal safety or for the protection of other people—the level of disturbance is such that in practice the majority of, if not all, patients who are assessed for a Section 2 order will have significantly impaired decision-making in relation to their care. That is why one is assessing them in the first place. The code of practice says that compulsory admission powers should only be exercised in the last resort. I think that we know that on the whole that is the case.

In Section 3 a patient’s condition must be sufficiently severe to warrant continued detention in hospital. Almost always the patient has continued impaired judgment about the short and long-term outcomes of any care plan, which will bring him fully within the Act if this amendment were to apply. That is as true of people with seriously abnormal disturbed personality disorders, as of people with psychotic illnesses and profoundly disabling neurotic disorders.

We have already heard about Professor George Szmukler’s research at the Institute of Psychiatry, about the patients at King’s and at the Maudsley, where it is clear that 85 per cent currently detained for treatment—and the assessments were done after the immediate period of admission—did not have capacity at all. That is using the much higher test. If we lower the bar and put the test further down to impaired decision-making, almost everybody would be included.

I have often received letters from Members of the other place about difficult and challenging people, whose mental disorders give rise to a degree of mayhem in the community. Clearly, there are many such individuals. I think for example of people who cause a lot of concern, such as a young woman going around the community and perhaps setting fire to things, who is cutting herself, who is very disturbed and who ends up in A&E threatening to commit suicide. Such people do not get into hospital when they should. They seem to be in and out of casualty and causing great distress to their families and the community. Nobody can understand why they have not been admitted and detained.

The young male stalker is another typical case which causes serious concern among everyone in the community. For some reason such people seem to get assessed but not admitted often enough, and yet there are concerns about when that will flip over into a serious problem for the young woman. Then there are the people in the community with other sorts of personality disorders who come through the magistrates’ courts, such as persistent recidivist offenders with seriously disturbed personalities that are the bane of housing officers, who again seem to be constantly circling around.

It has been suggested to me that these people are extruded because they do not fit the criteria of the Act and that these people would be removed from the Act by the amendment. I am absolutely clear that that is not true. If you look at these people and assess their capacity on impaired decision-making, you would find that they would fall quite well inside the Act.

The current doctrine of suspension of all rights to autonomy survives as the sole distinguishing feature in discriminating patients; the rights of patients detained in a mental hospital separates them off from all other occasions when they are being offered medical care. That encourages psychiatrists and psychiatry teams to behave in not exactly an authoritarian fashion—in fact I often wish my colleagues were a little more interventionist and authoritarian—but rather in a culture of “Take it or leave it. We have the upper hand. We don’t need to consult or take patients’ capacity or views very seriously”. Patients believe that they have no rights of any kind when they have recovered, and, even when they should be returning to their old selves, they believe that their rights to autonomy will never be regained.

This amendment would ensure that those rare people who have full decision-making powers could not be forced to have treatment. It would signal a change in relations between civilly detained patients and clinical services, which would be of immeasurable benefit in giving patients confidence in the system. Once again, I refer to the over-representation in our mental health system of black and minority-ethnic communities, especially young black men. The new clause would give them some small confidence that they would be treated on the same lines and receive the same sort of benefits as people going into hospital with any other illness.

I turn to the assessment of mental capacity and decision-making and congratulate the noble Baroness, Lady Barker, who gave a marvellous example of how it works. It is a regular function of health professionals in relation to consent to treatment for all illnesses, physical and mental. Capacity is often thought of as a matter of intellectual reasoning or cognitive powers in relation to a specific decision. Of course that is an important aspect, but sufficient cognitive capacity—if you like, megabytes of brain computing power—is a prerequisite for decision-making but by no means the only or, indeed, most important aspect of it.

I want noble Lords to consider for a moment the big decisions that they have made in their lives and to ask themselves whether their decision to marry, to have children, to enter a particular career or profession—indeed, how they framed their will—was made on the basis of intellectual judgment or whether emotions, personality and the timing of the decision in relation to other events in their life had a major impact. I used to do a lot of testamentary capacity work, the difficulties of which, while often about assessing cognitive capacity for decision-making on intellectual grounds, was also extraordinarily often about whether undue influence and disturbed affect may have influenced the decision. The test of impaired decision-making has a lower threshold, is a more flexible test and is very familiar to professionals as a concept. It is what most psychiatrists do every day and what most doctors do every week in treating mental disorder.

I have heard it said that capacity can fluctuate. There is only one condition in which it fluctuates dramatically: acute toxic confusional states or delirium, where one can be mentally normal at one point in the day and profoundly comatose at another. There is not a great deal of fluctuation, there is gradual improvement in people with mental disorders who are in receipt of treatment. Rather as you do not accept one good sugar level as evidence of control of diabetes in someone with the condition, you do not accept one piece of evidence of full capacity as evidence of ongoing capacity and proper decision-making capacity.

George Szmukler’s research demonstrated that two doctors had very high rates of agreement on who had capacity and who did not. In other words, those decisions are not difficult to make. After all, that is what we are trained to do; psychiatric teams do not have that difficulty. Genevra Richardson concluded in her report that non-discrimination on grounds of mental health was central to provision of care and treatment for those with mental disorder. She stressed her committee's desire to encourage the treatment of mental health according to principles similar to those that govern the treatment of physical ill health.

That is not to say that mental disorder is not different from physical disorder—of course it is in many respects—but the same principles of autonomy apply. Respect for patient autonomy is total in every other field of medicine. The Mental Capacity Act enshrines that and is a fine example. We have already heard about the dying cancer patient. We must let patients gamble with their own health and safety. Cardiac patients continue to smoke and liver patients continue to drink—against advice, perhaps, but there is no law against it—but we do not allow people with uncontrolled epilepsy to drive because the safety of other people is at stake. We are talking about people’s choices about their own health when they have full capacity. In mental health, we throw out the basic principles even when people are perfectly capable of choosing treatment for themselves and are no danger to others. This is all about patient autonomy—the freedom to decide for oneself whether to accept medical help if one retains decision-making capacity. That is fundamental to patients’ rights and is at the core of this legislation.

This is not simply an academic debate; it has important clinical consequences. A statutory framework is operated daily by health and social care professionals, and works smoothly only if it reflects the values of those who are going to use it. If it contradicts those values, its chances of working will be significantly reduced.

Secondly, the conditions for the use of compulsion lie at the heart of the Bill, so we must get them right. They have to be workable and predictable.

Thirdly, and finally, we must have a Bill that works alongside other relevant legislation, in particular the Mental Capacity Act. I know that the Government are concerned that it is premature to embrace a fundamental shift in the criteria for compulsion and that, inevitably, the doctrine of necessity will triumph, no matter what. I do not believe that that is true, for the reasons that I have outlined today, but what a signal it would send to end the stigmatising discrimination of the mentally ill.

I shall be relatively brief, as I was on Monday, but I approach this important amendment from the standpoint of a neurologist, rather than that of a psychiatrist, although it is clear, as every neurologist and psychiatrist will agree, that there is a great deal of common ground between the two specialties. I certainly do not subscribe to the view once expressed by the late Sir Francis Walshe, a distinguished neurologist, that neuro-psychiatry is that hybrid which, like the mule, has neither pride of ancestry nor hope of progeny.

Everyone who has handled patients with dementia, which can be defined as a disorder due to a physical degeneration of the brain that causes a progressive disintegration of the intellect and personality, knows that they slowly but progressively lose capacity. They may lose testamentary capacity and may ultimately totally lose the capacity either to give or to withhold permission for or consent to medical treatment. Of course there are patients with serious mental disease who lose such capacity, but many patients with serious mental disorders may be characterised by, for example, systematised delusions, where they may believe that they are being persecuted by those who are responsible for their medical care or by members of their family, or that they are being poisoned by the drugs that they are being given. Yet they may remain lucid, persuasive and, in many respects, perfectly in charge of many of their cognitive abilities. Nevertheless, no one could argue that their decisions about their medical care are not significantly impaired. That is why the amendment is such a crucial part of the Bill, and why I wholly support it.

I support the proposed new clause but do not want to reiterate too many of the arguments that have been advanced by the four previous speakers, almost all of which I agree with.

I should add the disclaimer that I no longer pretend to have any serious neurological or psychiatric knowledge. The previous speaker was, of course, a very distinguished neurologist. I approach this subject more from a decision that I took in October 1975 to review the then mental health legislation. It was a long time until we eventually got the Mental Health Act 1983. I confess that I am not particularly proud of that Act. It has some quite serious deficiencies, and the Government can claim considerable credit for correcting many of those deficiencies in the Mental Capacity Act.

In our debate on 8 January, the noble Lord, Lord Carlile, mentioned that the Mental Capacity Act was,

“a close cousin of that legislation”.—[Official Report, 8/1/07; col. 37.]

That is right. It is also a close cousin of this legislation as well as of the Children Act. We cannot pass the Bill without constantly reviewing the Mental Capacity Act. In some ways, it is a pity that it is not all included. Nevertheless, we now have to face the reality. We have to deal with this Bill as it is and try to make it as good as we can.

The noble Baroness was slightly too gentle on the question of the Scottish law. Historically, social legislation in England and Wales has been greatly benefited by the fact that, on a number of occasions, the Scottish legislation has been in advance of us and we have learnt from it. I never forget taking the Children’s Act through Parliament in 1975 and finding how much we were influenced by the fact that Scottish legislation had already been there. I know that the argument may be used that we do not yet have enough experience there, but we do have experience. Scotland would not have legislated for this without very careful consultation with all aspects of the mental health services in Scotland, which are, on balance, better than those in England and Wales. We have to recognise that. That Scotland already has this provision is an almost overwhelming argument for accepting it. It would be absurd to pass this Bill, with the Mental Capacity Act in existence, and not grapple with this problem.

The noble Earl, Lord Howe, succinctly drew the distinction between why it would probably not be right in this circumstance to invoke the exact terms of the Mental Capacity Act and why we should set a slightly lesser test. One has therefore to look at that in impaired decision-making. I am very much influenced by the noble Baroness, Lady Murphy, with her practical experience. She was right that it will not make a dramatic difference—it will obviously influence a few cases—but it will make a dramatic difference to how this legislation is seen. I listened to most of the debate on Monday. I had some sympathy with the Minister on principles. It is not an easy issue, because one is grafting principles on to an amendment and on to the 1983 Act, although I hope that he comes forward with some modification and some principles that are perhaps not so detailed. I understood his later arguments—in particular those which I missed but which I have read—as to why the Government were reluctant to do this, but I hope that we will not go through this legislation being told that we have to resist all amendments. This is not wonderful legislation. The Minister has a deserved reputation in this House for being an expert in mental health and as somebody who listens. I shall not belabour the point, because it usually means that one is trying to use this as an argument for one’s own. I would contemplate voting against the whole Bill if no changes are made to it. I was 26 years an MP. I know that what has driven this legislation is a great deal of dissatisfaction among individual MPs and a feeling of despair that the system simply cannot cope with some of these cases. Unfortunately, we are giving MPs the impression that this legislation will deal with this problem. It may or may not do so; it will be very much on the margin whether it does so. It will not distress me tremendously to see this Bill lost again. The Government should recognise that they have already lost Bills in this area and they could well lose this Bill. They will have to show a good deal of feeling and understanding for expert opinion. The Royal College of Psychiatrists deserves a serious hearing on this Bill. Where it has doubts and where it wants amendments, it should be listened to with great care.

This is a crucial new clause to be added to the Mental Health Bill. If the Government were to reject it, I certainly would look much harder at the balance of the Bill as a whole. This Government of all Governments should have no reason to reject the clause. They are the sponsors and creators of the Mental Capacity Act. It is a perfectly logical extension of that Act that this clause should be in the Bill. I therefore urge the Minister to accept it and hope that he will do so. He may of course want to make drafting amendments, and I am sure that whoever has proposed the Bill would not mind that in any way. However, I look on this as a crucial issue.

I say in response to all those headline stories which preceded this Bill and the public relations coup of having inquiries announced in the Sunday newspapers that we are in grave danger of kidding ourselves that the passage of this Bill will deal with this terrible problem in a community of a minority of people who cannot be coped with.

There is out there—in the medical profession, particularly psychiatry—a real feeling that this is a Home Office-driven Bill, which is intended to give the impression that it will solve a problem, when we all know in our heart of hearts that the problem is resources, the problem is the amount of time we can spend on these things and the problem is the problem. There may not always be solutions to this. We have to accept that in a community there will always be people who do not fit, who are very difficult to handle, and who, particularly as they grow up, become a tremendous burden on their parents.

Members of Parliament get immensely frustrated—I have been one—but sometimes, however, you have to tell people that there is not always a solution to things. The danger of this legislation is that it is pretending to do things. There is too much pretence around in politics at the moment. I hope that this new clause is accepted.

We on these Benches are not just mere academic observers of legislation such as this. We care for parish clergy, who are on the front-line, working collaboratively with those in the healthcare professions, in giving co-operative care and treatment to those who are mentally disturbed and mentally ill. I welcome the concept of “impaired decision-making” as a more flexible criterion than “incapacity”. I note that it has widespread support in psychiatric circles as a useful addition to the conditions for compulsion. My anxiety is that its operation could prevent timely assessment or treatment of people, whose condition posed dangers, because they were judged not to have reached the threshold of significant impairment. The answer to this appears to be that significant impairment is assessed partly in terms of the seriousness of the consequences of the impairment. I wonder if that gives a sufficiently clear and objective criterion. With that reservation, however—it is more of a question than an assertion—I support this amendment.

One of the many aspects of my good fortune in being married to my wife is that she is also a doctor. We can talk about medical things and share rather different practices because she is a consultant pathologist. At this time, she is likely to be looking down a microscope, deciding whether a particular biopsy is cancer. Why? Because when the surgeon operates, despite the fact that he has seen the patient and done an assessment and so on, he will not be able to be completely sure what he is dealing with. It might or might not be cancer or it might be a different disorder. His treatment will be dependent on the diagnosis. When she looks at it, she may well say, “This is a bit of a puzzler, I will talk to one of my colleagues, or send it off to an expert somewhere else”. Why? Because it is not always easy to know exactly what you are dealing with.

All of us expect at some point in our lives expect to call on the services of people such as my wife, her surgical colleagues and others. We know we will suffer from disorders of various kinds and that we will need that help. When a diagnosis of that kind is made, a good surgeon will say, “Look, there are a number of possibilities for the treatment. Some of them have a fair possibility of success, some are pretty slim, and there are a lot of side effects. You need to consider whether you want to go through all of this for the potential benefit”. One of my friends has recently gone through this and decided against chemotherapy. As a doctor, she weighed up the prospects, the costs and the side effects, and decided, “No”.

When I go home to Belfast, I will see a patient who has been detained in hospital on my advice for some time. This is because she has been trying to kill herself. I believe that the balance of her mind is so disturbed that she cannot really think clearly about that issue. She can think clearly about lots of other issues, but not about that one. I am quite clear in my mind that that is the appropriate thing to do, even though it means that I am setting aside—but not riding roughshod over—her right and freedom to be out enjoying Christmas with her family and so on. This is because, frankly, I suspect that she would never have come back from Christmas.

That is an easier case but there are lots of diagnostic decisions that are very difficult. This is not about a small number of people who are very distant. One in five to one in seven of us will consult psychiatrists during our lives—that is at least one in every one of these Benches. That excludes all those who will not get to see the psychiatrist because of the waiting lists or whatever.

The Bill talks about the fact that from time to time—this will affect people in your Lordships' House and their families—a decision will be taken not to give you, your wife, husband, daughter or son the right to decide about your own freedom and liberty and the kind of treatment meted out to you. That might involve drugs, which may have serious side effects—some permanently disabling if you are sufficiently unfortunate—but if your psychiatrist thinks you should have them, you should have them. It may involve various other psychological treatments, which sometimes people think of as reversible, but not all treatments, even of a psychological kind, are necessarily reversible. It may even simply mean being kept away from your family and your wife, which could have an impact on your personal life, social relationships, career and so on.

All those things would be done against someone’s will. That is a serious thing. All of us would agree that one must think seriously before doing that. I think that in most cases my psychiatrist colleagues do. There are many situations where they decide not to take something up because they think that, on balance, they will not really be able to help a person and resolve the problem, and that the treatments available will not make much difference. However, the Bill has been introduced because there are people in the other place, in government and elsewhere who say, “There are problems out there, and psychiatrists are opting out of their responsibility and not dealing with all these people”. Quite often, psychiatrists do not deal with them because they know that they do not have much to offer to resolve these problems. But they are being told, “No, you have to take them on. It doesn’t matter whether your treatment will help or be effective. It is up to you to do something about it, and if you can do nothing except keep such individuals somewhere then do that, even though that means not having beds available for other people whom you can treat but who do not require to be brought in on a formal basis”.

It is not as though it is easy to make a diagnosis. I mentioned the difficulties of my wife and her colleagues on the organic side, but it is no easier in psychology and psychiatry. At times, the patient has every right to disagree with a diagnosis; sometimes the psychiatrist will review it or a colleague will offer a second opinion and suggest that the diagnosis be looked at again. That is perfectly right and proper. A degree of humility in psychiatry, medicine and maybe even in politics is no bad thing.

It is not just a question of a disagreement between the patient, or the patient and their family and their medical attendant. Psychiatrists do not always agree with one another. I do not agree with some of my colleagues about the kinds of treatment they undertake with particular patients at particular times, and perfectly properly so, because these are not simple, black and white issues. But when it comes to the law and having to impose something, the issue is black and white, whatever anybody thinks.

There are circumstances where, despite all these difficulties, one must shoulder responsibility, struggle with the emotional and intellectual challenge, and say, “I’m afraid that, however difficult it is, we have to keep you in and approach the treatment in this way, even though I know you don’t think it’s helpful”. When do those circumstances arise? Not when a person disagrees, has inadequate information or does not understand the arguments. Many decisions made in this place and the other place affect people’s lives and deaths; sometimes they are not very wise and in many cases they are not very well informed, but that does not mean that they should not be made. Where it is judged that the balance of someone’s thinking is impaired, where their capacity to think—that fundamental thing about a human being—is disturbed, that is a reason to set aside the person’s decision-making capacity.

This provision recognises that of course such circumstances arise but says that outside those circumstances we should proceed with greater humility, both about the responsibilities we undertake and about our capacity to resolve all these problems. If we do not, we could end up making a bad situation very much worse, not out of malign intent but out of a belief that we can do far more than is actually possible to solve some of these problems.

This has been a good debate. I detected signs of consensus among other noble Lords, but I am afraid that I am not going to be part of that. However, I respond to the noble Baroness, Lady Barker, and the noble Lord, Lord Owen, by saying that the Government are ever anxious to discuss and to see what ways there are to reach agreement on some of these important issues. But we think that this amendment is one of the core amendments that will undermine the broad intent of the Bill.

It was a delight to hear the noble Lord, Lord Owen, speak. He said that the core purpose of what we seek to discuss is how to improve services and that legislation was not going to do that. I very much agree that services have been enhanced in recent years, and I think that I have acknowledged that more needs to be done. But this legislation provides a framework that builds on the 1983 Act and will enable better provision of services as the years develop.

The primary purpose of the legislation is to protect people from the harm that may be caused by mental disorder. That means both those who have such a mental disorder and any others who may be at risk. The purpose is not to provide a way of intervening where people cannot make their own decisions. That is what the Mental Capacity Act 2005 is for. A number of noble Lords have already referred to that legislation. It therefore follows that it is the needs of patients and the risk that their disorder poses to themselves and to others, not their decision-making ability, that must determine whether compulsion should be used.

Some people whose mental disorder creates a great risk to themselves or others may nevertheless retain the ability to make unimpaired decisions about treatment. That can be decided only on a case-by-case basis. In the Government’s view, a condition concerning impaired decision-making could result in some patients going untreated and thereby harming themselves or others. Or it could lead to clinicians feeling tempted to assess people inappropriately as having impaired decision-making in order to enable them to be treated. The first consequence would be contrary to the purpose of the Act as we see it. The second would place clinicians in an invidious position and would do nothing to encourage confidence in the Act among patients, the rest of the public or clinicians themselves. I should add that some people’s decision-making ability is unimpaired only because they are currently stabilised as a result of medication or other treatment, treatment which they might never have received but for the Act.

We do not think it right for the Act to force clinicians to discharge such patients and wait for some of them inevitably to decide to discontinue treatment and decline to the point at which they are suffering sufficiently to be made subject to the Act again. I know that a number of noble Lords have referred to the concerns that Members of Parliament expressed, and it is right to acknowledge that those concerns are genuine. I listened with interest to the noble Baroness, Lady Barker, when she said that the issue of compulsion in itself has a negative impact on those who are subject to such compulsion, and I understand the point very well. However, the Act allows intervention precisely where people refuse the treatment they need. It is not obvious why such people, certainly not all such people, would be more likely to consent to treatment they do not want just because they are less likely to be subject to compulsion.

I also listened with great interest to the comments about the research published by Professor George Szmukler, dean of the Institute of Psychiatry at King’s College, London. The noble Baroness, Lady Murphy, was right to point out that the research was into capacity rather than the terms of the amendment before us. The question is whether more or fewer people would be detained under a capacity or impaired decision-making test and whether there will then be a gap. Obviously none of us can forecast exactly what the effect will be, but we think that the intention behind the amendment is that some people who would be covered now may be excluded; and that is probably the most likely outcome. It may well be that it concerns only a small number of people, but I do not believe that the proponents of the amendment are in a position to reassure us that their approach would not lead to an unacceptable gap.

I agree with the noble Earl, Lord Howe, that detention should be a last resort, but that is the whole purpose of the 1983 legislation and this Bill. It remains a fundamental tenet of our philosophy. But I would ask him and other noble Lords how it promotes a person’s autonomy if, because they cannot be treated, they seriously harm or even kill themselves or commit a crime they would never otherwise have carried out? An Act based on need and risk is not about intervening to deny people autonomy or to strip them of their rights, rather it is to intervene to help them to recover from serious mental disorder or learn to cope with it better so that they can enjoy that autonomy and be able to exercise those rights.

The noble Lord, Lord Owen, and other noble Lords pointed out that the Scottish Parliament has taken a different view. It is perfectly entitled to do so. I agree that part of the blessing of devolution is that we can see how different approaches operate in practice, and in time approaches in practice can be modified as a result. But that does not mean that Scotland will always be right, and clearly the Government in Westminster must reserve the right to make their own judgments. It is interesting to read Professor Richardson’s original review of the Mental Health Act. She made it clear that the review committee was aware of powerfully held views on both sides which the report stated are “effectively irreconcilable”. The report states:

“We believe they reflect a difference in fundamental philosophy which can only be resolved by according preference to one approach over the other. We have set out the alternative views as best we can and invite politicians to make the moral choice between them”.

I would guess that that is what we are going to do this afternoon. I am not going to debate with the noble Baroness the proportion of psychiatrists who feel one way or the other. However, to say that only a small handful of psychiatrists support the Government’s proposals may be something of an underestimate. But what I do think the Richardson report shows is that there is a fundamental difference and that those views are powerfully held on both sides.

Let me turn to the question of discrimination which, in a sense, is the test that the noble Earl, Lord Howe, set me at the beginning of this examination. The Government believe that it is right to bring people under formal powers even though they are legally competent to refuse treatment. We believe it is possible to distinguish between treatments for physical disorder and mental disorder and that we ought to do so. Far more often in cases of mental disorder, one effect of the treatment may be to change the patient’s views about the value of the treatment. For example, as their disorder is treated they may become less sceptical about the need for or benefits of treatment. As I have said, people’s capacity fluctuates over time. A key tenet of the Government’s proposals in the Bill is to avoid creating a new class of revolving-door patients whose treatment stops each time they regain capacity, only to start anew when they deteriorate and lose capacity again.

I understand the question of stigma and discrimination. While I by no means claim to be an expert in the field of mental health, noble Lords will know of my association with a number of mental health organisations and my long-standing concern about stigma. But I think “discrimination” is a strange word to use if it means non-intervention in relation to people at risk of suicide or of causing harm to others. Is that really discrimination? I doubt the general public would think so.

The noble Earl, Lord Howe, went on to say that one might be able to distinguish a patient’s potential to do harm to others from their potential to do harm to themselves. He suggested, as did the right reverend Prelate at Second Reading, that a case of a person potentially doing harm to others should be dealt with in the criminal justice system. As a lay person I can see that, apart from the clear difficulties involved in a clinician making such judgments, there is also a problem in saying that we should wait until someone has fallen into the criminal justice system—and maybe caused harm to others—before they can be appropriately treated.

Perhaps I may invite the Minister to consider this example. Why should a person with mental health problems who knows what he is doing be detained because of a potential risk of harm to others more readily than, say, someone who is intoxicated with alcohol? Someone sitting at home intoxicated with alcohol is not detained in case they go out and drive recklessly or beat their wife, even if on their past record they may have done both those things. Why are the Government wedded to the idea that people with mental illness should be treated differently?

Noble Lords could put forward any number of hypothetical cases, but within the context of mental health legislation we are concerned that a number of people would fall through the net if the amendment were passed by the House. That is why we do not accept the amendment put forward by the noble Earl. Surely he would accept in the public interest that there must be in mental health legislation the safeguard that I have proposed.

In that case, I wonder whether we could get back to the point ably made by the noble Lord, Lord Owen, about mental capacity. The Government seem to be leading themselves up a path where they will find that the law in one area is inconsistent with the law in another. A patient with schizophrenia who is not objecting to his or her treatment may be detained under the Bournewood provisions only if they lack capacity, but detained under the Mental Health Act irrespective of capacity. In other words, the test that is deemed important to deprive a person of his liberty under one law is irrelevant in deciding whether to do so under another law.

In the context of this amendment, we are talking about a situation where if the test the noble Earl wishes to see placed on the statute book has to be undertaken—we are not talking about capacity here, but about a lower test—there can be instances where some people would not be allowed to be treated, and there could be serious risk of harm to them and, potentially, to members of the public.

This has been a splendid debate. I hope that at the very least I have explained the Government’s thinking. I hope the noble Earl, on reflection and on hearing the Government’s thinking, will consider his position.

I have a question for the Minister, following what has been said about the comparison between the Scottish Act, which I have in front of me, and the Bill. The Explanatory Note to Chapter 6 of the Bill, which is about cross-Border transfers, states:

“Transfers are only undertaken when they are in the patient’s interests”.

It then explains what a transfer might be: someone would be moved from over the Border because he would be nearer his family when he was detained.

It may well be, as I see it, that a Scottish patient will have been admitted because his ability to make decisions about the provision of medical treatment is significantly impaired. That is one of the conditions that the doctors must fulfil before that person is admitted. The person who is admitted for that reason is then transferred south of the Border where—because, as the noble Lord says, such a provision would undermine the entire Bill, although it does not undermine the Scottish Act—he would have been admitted for an invalid reason. Will he then be allowed out in England?

After listening to this debate, it is clear to me that there is a major difference between the two sides of the Border. If the Minister cannot answer that question now, will he look into it? It seems that this will happen. I may be wrong, but I have been listening carefully, and the more I hear, the more the two pieces of legislation sound different—as will be the justice which people receive. That Scottish patient might be released in England, whereas in Scotland it was thought that he should be detained.

Inspiration has confirmed what I suspected, but I will set this out in detail and write to the noble Baroness and copy it to the Library. If you are moving from one country to another, the laws of the new country must be applied, because that is the jurisdiction in which the person is now living. Devolution will inevitably lead to different approaches being adopted. That is one of the beauties of devolution. I thought that noble Lords opposite now agreed with devolution; perhaps I am wrong. There will inevitably be differences, and the law of the country the person is currently in must apply.

Will the Minister not continue to use the extraordinary argument that this is a glory of devolution? It is one of the disadvantages of devolution which we must be vigilant in trying to prevent. I look forward to receiving the noble Lord’s letter and reading exactly what the implications of the different ways of dealing with this very important matter on either side of the border will be for patients and the public.

I was a Whip during the passage of the relevant Scottish Bill. I believe that Scottish and Welsh devolution have brought many advances. Of course, I shall set out the detailed criteria. I have given the noble Baroness what I believe is a general and broad interpretation.

I thank all Members of the Committee who participated in this illuminating debate. I ask the noble Baroness, Lady Murphy, to convey the Committee’s best wishes to the noble Lord, Lord Rix, whose contribution was missed. I also thank the noble Lord, Lord Owen, who enabled us to put the question into a wider legislative context. That was extremely helpful, as were the descriptions of the noble Baroness, Lady Murphy, and of my noble friend Lord Alderdice of what it is like to be a practitioner implementing such legislation and decision-making on a regular basis, sometimes in emergencies.

The noble Lord, Lord Hunt, said that one of the core purposes of the Bill was to enhance services. In their response to the joint scrutiny committee, the Government told us in very forthright terms that we had misunderstood the draft legislation and that it concerned the circumstances under which people could be given compulsory treatment.

No doubt we shall read in Hansard whether I said what I thought I did, but I thought I said that we were all concerned with improving services. The Bill before the Committee will provide a very effective framework in which we will continue to make the improvements to services that we have seen in the past few years.

I am happy to accept the noble Lord’s position but he must agree with his colleague in another place, the Minister, Rosie Winterton, who has said repeatedly that the Bill is about the circumstances in which people can be brought under compulsory treatment.

I apologise to the Committee for bobbing up and down, but I must be clear. Of course, I do not disagree with my right honourable friend. I said that the Bill, when enacted, will provide a better framework for practitioners to deliver mental health services.

I accept that that is what the noble Lord believes but we are none the less dealing with the legislation in front of us. It is clear that the central issue concerns the conditions under which people can be subjected to compulsion. That is why Members on this side of the Committee looked carefully at issues of capacity and impaired decision-making and drew a distinction between them. It is why we looked at the condition of mental health patients and compared it to those who are subject to all other forms of healthcare treatment, as the noble Earl, Lord Howe, made clear. It is why we thought very carefully about practitioners in the mental health field and the parallels and distinctions between them and people in other parts of the medical profession who have to follow the doctrine of “first do no harm”, even when they may administer medication which they know to be harmful. However, the patients of all other medical practitioners have a right of refusal; these patients do not.

I remind the Committee that the provisions in the amendment relate only to people who would be detained under Part II of the 1983 Act. We are not talking about people who would be detained under Part III—that is, those who have been through the criminal justice system and are at more risk.

I return to a point that I made earlier. I believe that the impact of the provisions in the amendment will be to force practitioners to concentrate and focus on the ability of people to make decisions about care and treatment. That is something which they must do within the context of the implementation of the Mental Capacity Act from April of next year. I believe that the provisions in this amendment are of a lower standard than the capacity test and thus that we are giving practitioners a greater scope to make those much more difficult judgments that they must make about people whose decision-making ability is impaired because of mental disorder.

The Minister indicated in his response that he disagrees with us on a fundamental point, which is where we believe that our provision would make services less threatening to patients. Therefore patients would be more likely to come forward to seek treatment—and at an earlier stage in their illness, before they become dangerous. The Minister does not agree that our measure actually has the interests of public safety and patients at heart. We believe that it does. It is of fundamental importance. I therefore wish to test the opinion of the Committee.

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.