moved Amendment No. 2:

My Lords, I am delighted to see the noble Lord, Lord Rix, in his place once more. We missed him. I am also pleased and privileged to have an opportunity to pay tribute to him. He is an extraordinary man: from coal mine to Mencap, he has over so many years made a real difference to the lives of many people, especially those with learning disabilities. I know that I speak for the whole House when I say that I hope he will continue to campaign, legislate and bring about change for many years to come.

We fully acknowledge that many people who have a learning disability can have difficulties in communicating the nature of their health problems, and in particular that some of them may seek to draw attention to physical health problems by displaying aggressive or irresponsible behaviour that could be mistaken for mental disorders. Identifying physical health problems is an important issue for anyone with a mental disorder. For everyone who may be assessed for possible mental health problems, it is crucial to establish whether their behavioural presentation is in fact a reflection of underlying physical health problems. But we recognise, of course, that the risk of diagnostic overshadowing is especially high in the cases of people with learning disabilities.

That is why, since the noble Lord graciously withdrew his amendment following the debate in Committee last month, we have been looking seriously at the issues he raised to see what more we could do to address them. As he kindly acknowledged, we have engaged in active dialogue with him in the intervening period and made strenuous efforts to identify ways to address at least some of his concerns. We have considered a number of legislative options to see whether we could meet those concerns about inadvertent detention without inadvertently taking away the option of detention for those for whom it is necessary and appropriate. As ever, however, we ran up against the disadvantage of trying to use legislation to tackle a problem of practice rather than of law. We have had to conclude, therefore, that these issues would be best addressed in the code of practice—that lifeline referred to by the noble Lord.

My Lords, what can I say after that? It is a most generous offer—one which I happily accept. I am overwhelmed by its scope. The fact that Mencap and I can be involved in the code of practice is a tremendous asset for us. I am extremely grateful to the Government for considering the amendment so sympathetically. I have the greatest pleasure in withdrawing my amendment, and hope that your Lordships will forgive me if I go home and put my feet up. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 [Changes to exclusions from operation of 1983 Act]:

moved Amendment No. 3:

My Lords, will the noble Earl clarify how paragraph (c) of the amendment would work in the case of a compulsive disorder where the nature of the compulsion is likely to result in a criminal or disorder offence?

My Lords, the key test is whether there is an underlying mental disorder. That may exhibit itself in any of the behaviours listed in the amendment. The question which the clinician has to ask himself or herself is whether there is an underlying mental disorder. They should not allow the issue to be clouded by extraneous behaviour that has nothing to do with the mental disorder.

As I was saying, the effect of not having exclusions along the lines set out in paragraphs (c) and (d) of the amendment is that it will confuse the role of psychiatry in the public mind; moving them, as far as perceptions go, from the proper aim of assessment and treatment of mental disorder into the area of social control. We have often spoken about the fears and apprehensions of the black and ethnic minority communities. Disproportionately high numbers of people from BME backgrounds are diagnosed with major mental illness and detained. To the extent that the Bill may serve to add to the current negative view of mental health services among those communities, it will have failed. That point was very powerfully made by the noble Lord, Lord Adebowale, earlier.

There is a real worry that stereotyping and misunderstanding of black people may lead to unnecessary and unjustified use of compulsion. That worry is not imaginary; it is based on current practice under the 1983 Act. Extensive literature confirms that racism can apply in mental health practice. It is even more likely to happen under the broader definition of “mental disorder”. Psychiatrists acknowledge how difficult it is to distinguish symptoms of genuine mental disorder such as hallucinations from beliefs that to a particular individual may be culturally or religiously appropriate, such as belief in spirits or in witchcraft. Without an exclusion of the kind I have proposed, we will see an increase in the degree to which diagnosis of mental disorder depends on discriminatory assumptions and on the subjective judgment of clinicians.

That is the rationale for the amendment. I believe that the arguments which the Government have put forward for resisting it are wrong. I therefore ask the House to give it full support. I beg to move.

My Lords, briefly, I support the noble Earl, Lord Howe, on the amendment. I do not want to repeat what I said in Committee, but many of our discussions throughout the passage of the Bill have been intended to ensure that people who are really in need of care and treatment have it made available to them. All of us have that concern, but we have approached it in different ways. In refusing the exclusions, the Government are misguidedly trying to draw into mental health services a much broader range of people who at present would be excluded and whom, mostly, we would want to be excluded.

I remember the wonderful tease of the noble Lord, Lord Alderdice, over the auto-erotic strangulation case, which somewhat confused the noble Baroness, Lady Royall, at the time. That was a wonderful example of how very many sexual perversions and fetishisms there are. We know that there are eccentricities that we do not want included in treatment where there is no defined mental disorder. I take the point made by the noble Lord, Lord Soley, that where there is a mental disorder exhibited through an obsessional behaviour that is criminal or distressing, that ought to be included, but it is perfectly possible to make that distinction.

Most common-law jurisdictions across the developed world have such exclusions, for very good reason. We have forgotten how very recently it is that people complained that too many people were drawn into mental health legislation through an overbroad interpretation of the Act. That is why we have the exclusions: to define exactly whom we are trying to detain in this way to help them. I strongly support the amendment.

My Lords, the House will no doubt be very familiar with the writings of a 6th century monk, a Syrian named Dionysius the pseudo-Areopagite. He made his place in church history by developing what was known as the apophatic tradition. In case one or two of your Lordships are not entirely familiar with that, let me explain it very briefly. The apophatic tradition says that as well as saying positive things about the nature of God, it is not only possible but desirable to use the negative. As well as saying, “God is love, God is light”, one must also say: “Because God cannot be seen, He is invisible; because He cannot be touched, He is intangible; because He cannot be fully understood, He is incomprehensible”. I suggest that the apophatic tradition is worthy of consideration in relation to the Bill.

The noble Earl, Lord Howe, has already made the point that the purpose of the amendment is to make clear what is not included as well as what is included in the Bill. I am strongly in favour of the amendment because its purpose is to reinstate and extend the exclusions. The point of exclusions has always been to ensure that compulsory powers are used to assess and to treat genuine mental disorder and not, in the words of the Church of England’s submission to the Joint Scrutiny Committee, as a means of social control.

The Government’s twofold argument—first, that most of the exclusions are unnecessary and, secondly, that they might prevent people being brought under compulsion when that is appropriate—seems rather curious. If the conditions and behaviour specified in the exclusions do not constitute mental disorder, they could not prevent legitimate application of the criterion for compulsion, but they could provide protection against inappropriate compulsion.

In view of the widespread concern about the detention of Afro-Caribbean men—I beg your Lordships’ pardon, African-Caribbean men—it is particularly important that exclusion (d), the criterion for cultural, religious and political beliefs, should apply. If the exclusions really are unnecessary, no harm will be done by adding them to the Bill. However, there are many reasons for thinking that, as a checklist, they will act as a significant safeguard of civil liberties in a climate of anxiety about risk.

My Lords, I am sure that the Minister’s brief includes the apophatic tradition, and that she will no doubt tell us about it. Mine did not, but then I have the noble Baroness, Lady Neuberger, beside me, who tells me that the right reverend Prelate is absolutely right.

I shall briefly make three points that are not only important for our discussions but to be read perhaps at another time and in a different place. In response to a similar amendment in Committee, the Minister stated the Government’s belief that exclusions are,

“arbitrary obstacles to the use of compulsion”.—[Official Report, 8/1/07; col. 83.]

He also said that they would cause uncertainty. Many noble Lords will have been in meetings in which Professor Appleby, the Government’s mental health adviser, has spoken about the need to make this legislation inclusive. Memorably, in an all-party group meeting on 30 January, he said:

“Every exclusion is a person not receiving the treatment they need”.

It is beyond doubt that statements such as that are made with good intentions, but it is equally true that those of us who disagree do so with good intentions. We on these Benches do not believe that we should set up exclusions to deny people treatment; we believe that every exclusion is someone not being wrongly subjected to mental health treatment. There may be people who are very seriously disturbed and whose behaviour is dangerous, but the central question that must be asked, and answered by practitioners, is whether that behaviour is to be treated using mental health legislation. As the noble Earl, Lord Howe, said, we should not leave that decision solely to the discretion of individual practitioners.

The noble Baroness, Lady Murphy, alluded to another important reason for accepting the amendment when she talked about other jurisdictions. I shall focus on New Zealand, in which the definition of mental illness is,

“an abnormal state of mind shown by delusions or disorders of mood, perception, volition or cognition”.

The exclusions are,

“a person’s political, religious, or cultural beliefs, or sexual preferences, or criminal or delinquent behaviour, or substance abuse, or intellectual disability”.

That is important because, frequently in the past few months, the Government have cited the example of New Zealand in their attempt to win support for their version of community treatment orders. In New Zealand, however, one must have gone through those exclusions and cleared those hurdles to be brought under mental health legislation at all. The Government, or their advisers, have therefore been presenting two things as the same. They are, however, radically different because they happen in a completely different context. That is why the amendment is of huge importance. We are talking about health and compulsory health treatment. We should confine it to the many, many thousands of people who we know need it and who cannot get it; we should not be including people whose problems are nothing to do with mental health.

My Lords, we can fairly claim that this issue is a question of principle, and a substantial one at that. It is and has been for many years necessary to make a clear distinction between the roles of medicine, particularly for psychiatrists, and criminal justice. Few would deny that psychiatrists have to deal with problems closely related to criminality and therefore to criminal justice, but they are inexorably being drawn across a threshold which I think it is extremely important to establish. In the background to this legislation, what people outside this House have used as a justification for it gives reasonable cause for concern. There seems to be a feeling that some of the acute social problems facing society can be handled by psychiatrists and compulsory orders. That is a very dangerous path for this House to allow any Government to move along.

The wording of the amendment is modest. It makes it clear that,

“a person shall not be considered to have a mental disorder as defined in this section solely on the grounds of”.

It does not exclude people who are alcoholics or taking drugs; it does not exclude people of different sexual identity or orientation; it does not exclude illegal or disorderly acts, and it does not exclude those with different cultural, religious or political beliefs, whether they believe in voodoo or anything else. All these are real problems, but we must have a very clear line drawn in the sand: doctors ought to be able to state that these are not medical disorders.

This amendment has to be linked with the next one which provides that doctors must have reasonable grounds for thinking that they can alleviate the disorder. The word “likely” is probably used correctly, but I do not want to stray into that amendment. However, taken together these two amendments establish an important principle and safeguard the medical profession from being drawn across a line into the field of criminal justice—that of policemen, probation officers and all those involved in the maintenance of criminal justice. Of the need for psychiatrists and the medical profession to help people in the implementation of criminal justice I have no doubt, but they should not be dragged across this line. For me it is a line worth upholding as a matter of principle.

My Lords, I too support this amendment. As noble Lords know, I am a practitioner in the criminal courts and a great deal of my work takes place at the interface between law and psychiatry, so I am conscious of what has happened in other common-law jurisdictions and have made a point of following closely the ways in which those jurisdictions have dealt with the problems the Government are seeking to address in this legislation. One of the tests of whether we are complying with the rule of law is that there should be clarity. Because of this, jurisdictions such as New Zealand have decided that it is far better to set out the exclusions in legislation. New Zealand felt that this was important because nothing focuses the minds of professionals more than the fact that the law is there. That is its purpose. As others have said, it would draw a line in the sand and focus minds, thus making sure that we do not transgress in any way and so create a situation where those who should not be included in this legislation are inappropriately brought under it. We would not run the risk of using a compulsory mental health section in circumstances where it should not be used.

It is for this reason that so many of the professionals involved are rising to their feet. All I can say to the Government is that while we are mindful of their good intentions, given that so much has been said about the expertise present in this House, and how it has been lauded on that expertise, they should listen to it.

My Lords, I want to reiterate my support for the amendment and follow up on some comments I made in Committee. I wish to speak briefly about some of the specifics, first in relation to substance misuse. Here I should declare again an interest as chief executive of Turning Point, which provides services to more than 70,000 people with substance misuse challenges.

Unlike the Bill, this amendment specifies substance misuse as well as dependency. That is important because both the misuse of and dependence on substances are included in international classification systems used by psychiatrists such as ICD-10, mentioned by the noble Earl, Lord Howe. Unless the legislation excludes both misuse and dependency, it could mean that people come under mental health law inappropriately.

Let me give an example, as I am prone to do, from Turning Point’s case files. John is one of Turning Point’s alcohol service users. He is a binge drinker but is not dependent on alcohol. He does not have a concurrent mental health problem, but he reacts to times of personal and emotional crisis by drinking. He will drink heavily for several days and nights before crashing. He then will not drink alcohol for several months. John’s irrational behaviour could mean that he is inappropriately sectioned under mental health law unless exclusions in the Bill also cover substance misuse.

My Lords, I would like to speak about diagnosis, adverted to by my noble friend Lady Barker and the noble Lord, Lord Owen. It is important to be clear what you are dealing with medically, whether we are talking about physical or psychological medicine. That is not at all easy at times.

One of the problems about this amending Bill is that it removes some of the rather crude and simplistic but necessarily fundamental diagnostic entities. It sets to one side mental illness, psychopathic disorder and mental impairment, referring to the global term, “mental disorder”. The difficulty is that it removes the clarity that existed before, so it is necessary to insert some exclusions in the Bill. Let me give two particulars which may be helpful.

The tendency is to make the judgment that someone has a personality disorder because of the way they behave. It becomes a circular argument: if somebody behaves in such a way that they are anti-social, if they break the law and have difficulties with relationships, the term “personality disorder” is frequently applied. There is no depth psychology to it; it is simply a matter of observing their behaviour, and unfortunately the Bill helps to push us in that direction. The circular argument goes like this: the person breaks the law, therefore they have a personality disorder; they have a personality disorder because we know that they break the law; therefore, they are the province of psychiatry and it is appropriate to detain them because they might well break the law again. Psychiatry and mental health legislation are drawn into a circular argument. There is no depth psychology to it; the diagnosis is made on the basis of behaviour that is a breach of the law.

A similar problem arises with psychosis, particularly schizophrenic psychoses of various kinds. If a person behaves strangely and speaks about strange ideas and thoughts, they may suffer from a psychosis, but they may have a set of beliefs and a way of behaving that is simply alien, for cultural, religious or, occasionally, political reasons, to the psychiatrist or the other person that they are dealing with. The individual’s experience might get misconstrued as that of someone suffering from a mental illness rather than someone with different cultural and religious experiences. Generally, those groups are affected.

Again, if there is no depth appreciation, if a judgment is made simply on the basis of behaviour, symptoms and effects, which are terms in the Bill, people will be drawn in; inevitably, it will be, more largely, people from immigrant, black and minority-ethnic communities. If we are not going to have circular diagnosis for personality disorders or discriminatory diagnosis on the psychosis side, we must return to the Bill some kind of boundaries, exclusions or guidance, which have been removed. I understand why that has been done, because what was removed was relatively simplistic and, one might say, even a bit primitive and crude. Something needs to be put in its place to protect us, to protect patients and to give guidance to those who are working in this field.

My Lords, I, too, support the noble Earl, Lord Howe, in this amendment. This category includes another group of people who are labelled as having a personality disorder but are physically ill. They are people with ME. Over and over again, I hear about people with ME being described as having “illness beliefs” or as suffering from psychosocial behavioural problems, when they have from a physician a diagnosis of ME but psychiatrists disagree with the diagnosis. Psychiatrists say that ME does not exist, and somehow social workers and psychiatrists gang up together and get the person sectioned. More often than not, they come out of hospital much more ill than when they went in.

What is particularly iniquitous—the Minister knows what I am talking about—is how children are treated in this respect. We really need to protect those people. The fact that they think differently from other people does not necessarily mean that they are mentally ill.

The other group of people affected includes the lady, whom I mentioned in Committee, locked up in Pond Ward in the Central Middlesex Hospital because her beliefs about her children’s illness differed from that of the social workers looking after the children. There was absolutely nothing wrong with that lady; she should never have been locked up.

My Lords, my noble friend Lady Kennedy put her finger on the key issue: whether it is better to put something like this in the Bill or to rely on professional standards, codes of conduct and the underlying general law of the country. I tend to prefer the latter, although I acknowledge my noble friend Lady Kennedy’s point that other countries, for example New Zealand, put it in legislation without any great disadvantage. I understand the argument in both directions, and I would not lose an enormous amount of sleep if it were in the Bill, but there are some warnings about that, and they perhaps need to be spelt out.

Admitting someone to a psychiatric hospital on the basis of, for example, their religious or political beliefs would be unlawful anyway, unless you could show an accompanying mental illness. The intervention of the right reverend Prelate was appropriate, because some people go around these days claiming to be the son of God and to have other such relationships with God. If we had applied the same principle 2,000 years ago, history, and one or two other books, might have been written slightly differently, so we always have to be aware of it. It would be difficult to compulsorily treat on the basis of politics, culture or religion in the way that is feared without breaking the law, unless you could show a clear mental illness.

I intervened in the speech of the noble Earl, Lord Howe, because I am concerned about people with compulsive disorders who would fall under subsection (3)(c) of his amendment. The noble Earl and others may remember the case of the Jewish woman who had survived the Nazi death camps. This was a very long time ago, I have to concede—it was when I was still a probation officer—but it got a certain amount of publicity at the time, not surprisingly. Like a number of people who came out of that experience, she felt an inner guilt. She had attempted to resolve it in many ways, including psychotherapy and so on, but in her later life it seemed to totally overtake her and she began to shoplift compulsively—you could not describe it otherwise—and appeared in Hampstead court almost daily. The court leant over backwards not to send people to prison but, after many offences had been committed and every type of voluntary approach had been tried, it sent her to prison. If we box ourselves in too much with these regulations we will at times make it inevitable that prisons—as they did then and as they do now—take too many people who are in need of mental health treatment rather than custodial sentences.

Another example involves alcohol addiction. I give it against the slight warning that I was chairman of the Alcohol Education Centre in the 1970s, which was based at the Maudsley Hospital, and what I say arises out of the work of some psychiatrists there. The argument used to me as chairman of that organisation was that alcoholism should be treated as a mental illness, which was quite a powerful argument at the time. I had my doubts about it but they persuaded me—this is where it goes full circle—largely on the basis that the evidence was growing that acute addiction, whether to alcohol or drugs or cigarettes for that matter, could be linked to activity in the brain which could ultimately be treated. It is an interesting concept. I have gone back to the position that I held originally, before the psychiatrists got to me, that you still have to rely on the person wanting to take the treatment, which is an important aspect.

Again, there is a shady area in between. In one of my earlier speeches at Committee stage I talked about the old mental health hospitals, referred to as “bins” at the time. Although it was totally inappropriate to hold so many people there as we did, we were holding people who would now end up in prison—and, as we have heard, are held there inappropriately—or who are adrift in the streets and need a safe place.

The Grass Arena, written by another ex-client of mine, John Healy, refers to the problems he had when he was in between prison and treatment centres, a very difficult period. On one occasion he was about to be discharged from a prison sentence at Pentonville on Christmas eve, having been already sentenced to three months for a drunk and disorderly offence. The Ley Clinic, in Oxford, was unable to take him before that and was not prepared to section him even though he at that stage was asking to be sectioned. We did not section him; we got the court to impose another prison sentence for an unpaid fine, which kept him in until the new year.

That is not the best way of dealing with these problems. Ultimately, I rely more on professional judgments from all the professions involved—not only psychiatry, I stress. Part of the battle that troubles me is that there are too many psychiatrists speaking for psychiatry and not enough people speaking for the other professions involved. This is a grey area that will always be difficult, and opinion is moving on whether alcoholism is a treatable mental illness.

I could live with at least three of the conditions in the amendment but I have to say to the noble Earl, Lord Howe, that there is a danger that people will engage in certain types of compulsive behaviour—shoplifting, for example—which, by definition, will inevitably be taken into account by professionals, and in my view should be, if it is going to result in them going to prison. That is an assessment you have to make. That is why I find it difficult to make an absolute judgment of the type being assumed by this amendment. We must not make the mistake of assuming that including lots of special principles and conditions in the Bill will necessarily solve the problem for people who need treatment. It often pushes them on to the street or into prison. We have swung from the position of the 1940s and 1950s, when we had far too many people in psychiatric hospitals, to having a large section of people who need to be cared for, perhaps not in permanent care.

One of the reasons that John Healy wrote The Grass Arena was to explain his feelings and circumstances. One of his problems was going into hostels. As the noble Lord, Lord Adebowale, knows, it is difficult to find a hostel for someone who has a reputation for smashing up hostel staff and hostels, where there is a relatively more flexible regime. Frankly, we are not offering that person any real help and prison is not the answer either. Let us try to be flexible. Yes, the law must be absolutely clear to avoid the extremes of treating people because they have some strong religious or political belief or whatever, although I think that would be illegal anyway, but we must be very careful. My noble friend Lady Kennedy may be right: we could treat people in the way that the New Zealanders do—possibly things work well there. However, there is another side to the argument. It is worth remembering some of these cases particularly where issues such as compulsion are involved. You need to think carefully before including items such as paragraph (c) in this amendment.

My Lords, this has been an important debate on a key part of the Bill—indeed, an issue of principle. This amendment is the same as the one we discussed in Committee, and in many ways the arguments have been well rehearsed, although I have learnt an enormous amount including about the apophatic tradition, about which I will read more. I must say from the outset that it is absolutely not our intention to detain anyone except on the basis of their mental disorder. We will do everything possible to ensure that no individual is subjected to mental health treatment unless they have a mental disorder.

Much has been made in this debate and elsewhere of the idea that the Bill will widen—some have said it will be much wider—the definition of mental disorder. The Joint Committee on Human Rights referred in its recent report on the Bill to the,

“breadth of the new definition of mental disorder”,

and an argument was put forward that the widening of the definition must be matched by more exclusions. The Government do not agree with that, but before turning to the amendment itself I would like, if the House will allow me, to set out exactly what effect the Bill would have on the definition of mental disorder. In doing so, I hope to demonstrate that the effect is not as great as is sometimes thought.

Clause 1 simplifies, but does not change, the basic definition of mental disorder used in the Act. In fact, the only real change to the scope of mental disorder in the Act generally flows from the removal of the exclusion for sexual deviancy. In other words, for the purposes of detention for assessment under Section 2 of the Act, and various other powers, that is the only change. I will return in due course to the merits of that change.

A further effect of Clause 1 is that other provisions of the Act, largely those relating to detention for medical treatment, guardianship and, in future, supervised community treatment, will not be limited to the current categories of mental illness, mental impairment, severe mental impairment and psychopathic disorder. These are legal, not clinical, categories and the boundaries of “mental illness” are uncertain. That means that we cannot say precisely what will be covered by the relevant provisions that is not covered now. Almost certainly, mental disturbance arising from brain injury in adulthood will now be covered for the first time; likewise, personality disorders that do not fall within the definition of “psychopathic disorder”. That might, for example, cover someone suffering—and I do mean suffering—from a borderline personality disorder, with all the relationship difficulties, feelings of emptiness and propensity to self-harm that go with it. Possibly, too, the effect will be to widen the scope of the relevant provisions to include certain autistic spectrum disorders; certainly, it will remove any uncertainty about their status. These are not insignificant changes, but they do not amount to the significant widening of the definition of mental disorder that people sometimes ascribe to the Bill.

It has been argued that the Bill allows individual clinicians to decide what a mental disorder is. It does not. The reality is that psychiatry moves on. The European Court of Human Rights recognises that in its refusal to state definitively what constitutes “unsoundness of mind” for the purposes of the convention. Mental health legislation—perhaps inevitably, but certainly pragmatically—relies on the clinical professions taking the lead in defining and classifying mental disorder. But that is not to say that, Humpty Dumpty-like, mental disorder means whatever a clinician says it means. When we talk of clinically recognised mental disorders, we mean disorders recognised as such by clinicians at large. That does not necessarily mean exactly what is listed in the International Classification of Diseases or the American Diagnostic and Statistics Manual. Those publications do not purport to be the last word in what is a mental disorder, and they too get out of date, but they offer a good starting point for assessing what is likely to be regarded clinically as a mental disorder.

The noble Lord, Lord Owen, and the noble Baroness, Lady Kennedy, suggested that a clear line should be drawn for the medical profession. It is conceivable, I suppose, that some day a Government might attempt to put in the legislation a detailed statement of what is and is not a mental disorder. I doubt that it would be popular with the psychiatric world, but a Government might be compelled to do so if they concluded that the profession was taking an approach that was unsupportable in a democratic society. I do not think that we are anywhere near that position right now.

I should also say something else about the context within which the question of exclusions should be considered. There must, of course, be safeguards against improper use of the Act, but the definition of mental disorder is by no means the only place, or indeed the most obvious place, to look for such protections. There are already safeguards in the procedures for detention. No single professional can have someone detained. The criteria for detention impose further strict limitations. Then there are the many other external safeguards, both within the Act and beyond it. There is the Mental Health Review Tribunal, together with the Mental Health Act Commission, and the merged body which will take over its role in future. There are the clinical governance arrangements that all mental health service providers must have. There is professional regulation and, above all, as the noble Lord, Lord Soley, said in Committee, the rule of law.

Of course, those protections are not perfect, and not every professional attains the high standards of the majority. Mistakes get made, even by the most conscientious of professionals. We must all, collectively, work together to improve standards across the board; but I urge the House, in thinking about this amendment, not to forget that there is an intricate and extensive network of safeguards that goes far beyond what is achieved by refinements to the definition of mental disorder and exclusions from it.

The exclusions proposed in the amendment are of two types: those that would substantively limit the disorders in respect of which the powers in the Act could be used to help and protect people; and those which, in the words used by the noble Earl, Lord Howe, in Committee, are markers designed to send signals about how the Act should, and should not, be used. Substance misuse is, I think, in the former category. In my experience, the Government are often challenged to say why their proposals represent an improvement. In this case, I feel justified in asking the same question of the noble Lords in whose name this amendment stands. For the past quarter of a century, the Act has excluded dependence but no other substance-related disorder, yet psychiatric hospitals are not full of drunks sleeping it off or drug users being kept away from their dealers by nominal nursing care. Why should anyone think that that will change as a result of the Bill? Why do noble Lords want to exclude from the Act those people who are now properly detained because of a substance use related disorder? If they do not want to do that, why none the less are they willing to take the risk of it happening? As many noble Lords know far better than I—

My Lords, I had difficulty following the noble Baroness because the Bill itself contains an exclusion for substance dependence; therefore, the Government agree with me on that issue. I find it difficult to understand why the noble Baroness argued against that position.

My Lords I am not arguing against that position. I shall come back to that matter shortly, if I may.

As many noble Lords know far better than I, there is a spectrum to acute intoxication just as with many other mental disorders. No one is ever likely to be detained because they are mildly depressed; major depression is a different matter entirely. Of course, no one is going to be detained just for being drunk, but sometimes it makes good clinical sense to detain someone who is profoundly intoxicated and hallucinating or suffering other psychotic symptoms which put them or other people at risk. The symptoms may recede with the intoxication, which can sometimes take days, or it may turn out that they are symptoms of another disorder.

The noble Lord, Lord Adebowale, said that he had experience of people with dual diagnosis—that is, substance dependence and mental illness—being refused services because of current exclusions. He gave an example of where exclusions are being misunderstood or misused to exclude people from the help that they need.

On sexual identity and orientation, one significant change has been made to this amendment since we debated it in Committee; namely, the change from “sexual behaviours” to “sexual identity or orientation”. We continue to believe that an exclusion for sexual identity or sexual orientation in the way that they are normally regarded—that is, heterosexuality, homosexuality and bisexuality—is simply redundant. Noble Lords are familiar with the arguments on that, so I shall not repeat them.

The noble Countess, Lady Mar, referred to ME. That is an issue of diagnosis not definition. We cannot use legislation to tell clinicians how they are to diagnose patients; that is a matter of professional practice. If there are problems of poor practice, they must be tackled as such.

On criminal acts and cultural, religious and political beliefs, the remaining elements of the amendment are there to send signals that the Act is not to be used to exert social control, that criminal, antisocial or merely difficult behaviour is not, of itself, proof of mental disorder, and that diagnosis must be based on patients as they are, which includes their cultural, religious and political background, assumptions, values and beliefs. I simply cannot agree that people will be detained because of their cultural, religious or political beliefs.

Those are sentiments with which the Government wholeheartedly agree and that are clearly set out in the illustrative draft code of practice that we have issued. Indeed, the noble Lord, Lord Adebowale, suggested that the code of practice should be strengthened in this and other areas. We would certainly welcome his help in doing that. As my noble friend Lord Hunt of Kings Heath wrote in his letter of 31 January to all noble Lords, difference is not to be equated with disorder.

We still disagree on whether the way to send out and emphasise these messages is to amend the Act to purport to exclude these matters from the definition of mental disorder. The House is familiar with our arguments in this area and I will not repeat them in detail. However, we are more than ever confirmed in our view that otiose exclusions can achieve nothing except the risk that they will be misapplied or interpreted in an unintended way.

Perhaps if I were a certain type of patient detained in a high-security hospital following a conviction for a serious offence, I might be getting quite excited at the possibility that this House was seriously considering adding the exclusion for criminal acts. Of course, I would realise that it was not intended to lead to my discharge while I still needed treatment in hospital, but I would certainly be thinking about ways in which I, and my lawyer, could try to persuade a tribunal that that is none the less its legal effect. There may be few such patients, and one would hope they would not succeed. However, I do not think that we should take that risk.

My Lords, I thank all noble Lords who have spoken in this debate. I have found every contribution extremely enlightening and valuable. I also listened with great care to the Minister and thank her for her reply. Very sadly, it is clear that this is one of those issues on which we are not going to agree.

I totally accept the Government’s honourable intentions in not wishing to subject to detention anyone who does not have a mental disorder. The issue is whether Parliament, in common with comparable legal jurisdictions, should delineate what should and should not fall within the scope of the law.

I listened carefully to the noble Baroness’s exposition of the safeguards in the Act and the Bill but still maintain that there is a clear value in the Act setting down clear markers about how Parliament wishes the very broad definition of mental disorder to be interpreted in the field. If the Government consider that some of the exclusions are legally otiose, I might in some cases be forced to agree with them. However, the fact is that, to the extent that they may be otiose, that does not seem to have caused problems in other jurisdictions in which similar provisions have been adopted. Indeed, the noble Baroness was gracious enough to say that, in some instances, she did not disagree with the sentiment behind those provisions.

To the noble Lord, Lord Soley, I simply say that I would not wish to deny people with obsessive compulsive disorders access to therapeutic care, if that is what they need. The issue is whether such people should be compelled into treatment, if there is no underlying mental health diagnosis. That is what troubles me about the possibility of confusing the boundaries between what a mental disorder is and is not.

I do not know how the balance of opinion in the House lies. All I can judge is that this afternoon’s speeches have been heavily weighted towards the amendment and I take encouragement from that. Therefore, I think that it is appropriate for me to test the opinion of the House.

moved Amendment No. 4:

My Lords, with this group of amendments we have arrived at perhaps the single most critical issue in the whole Bill: the presence or absence of a test of therapeutic benefit. Since our very extensive debates in Committee, a number of us have had the advantage of private discussions with the Minister, for which I, for one, am grateful. We also now see before us some movement by the Government in the shape of their amendments grouped here, which seek to define in the Bill the purpose of medical treatment. Without repeating the powerful arguments put by the noble Lord, Lord Carlile, I want to add a few brief points of my own in support of Amendments Nos. 4, 6 and 7.

My Lords, I shall have one more attempt, if I may, to try to persuade the House that the Government are more right than wrong, although as I said when I last spoke on this subject, they may not have gone far enough. We may need clearer legislation.

I understand fully the position of the noble Lord, Lord Carlile, and I respect it. He feels very strongly on the principle of the issue and has a very good track record both on civil rights and on understanding their context in society. I want simply to try to balance the arguments for and against. A perennial problem in mental health issues is that because we do not have as clear a definition as we would like, particularly on personality disorder, we move around trying to find the right position. Over time, the only thing about which we can be certain is that we have got it wrong some of the time and have sought to adjust it. On balance, of course, we tend to make some quite good decisions, too.

I agree with a comment in one of the letters that the Minister sent to Members of the Committee—that personality disorder is a definition of exclusion in too many cases. It excludes people from treatment. I therefore say straight away that the position of the noble Lord, Lord Carlile, and those who support his position is that the Bill as currently presented risks creating a situation in which people will be treated inappropriately. In a previous debate, the noble Lord, Lord Winston, gave an example of a case where inappropriate action was taken. It was a good example, and that does happen. Let me be clear: I am not saying that there is not a danger of that.

I ask the supporters of the amendment to take into account the other side of that equation—that many people with personality disorders who could be treated are at the moment not being treated. They are not being treated not only because no facilities are available; too often they are not being treated because the phrase “they are not treatable” is used. I am not citing only the examples that I gave when I last spoke on this issue. I do not call in evidence my previous experience as a probation officer 30-odd years ago, but I do cite the experience of many Members of Parliament who have to deal with difficult cases in which they receive letters from health authorities saying, “Sorry—we are not prepared to treat”. Yet everybody knows that a treatment is available for those people.

Those supporting the amendment are very strong on the patient’s right not to be treated and pretty strong on doctors’ rights not to treat people if they do not want to, but they are very weak on treating those who need treatment. They are playing into a situation that has troubled the mental health field for far too long, whereby a dustbin label is put on someone—the original label was psychopathy, but it is now personality disorder—saying that they cannot get better and are untreatable, so nothing is done about it. In reality, treatments are now available. As I said earlier, I am sometimes troubled that we pay too little attention in these debates to other treatments available from psychologists. Psychologists often, although not always, have a longer period of training than many psychiatrists. It is important to get the balance right. The noble Lord shakes his head. There are examples of psychiatrists having shorter training periods than psychologists. It is not a crucial argument because we know that there are no absolutes in any of this. We are dealing with behaviour.

As for the definitional problem, the fact is that mental illness exists. It can be shown in an individual standing alone in certain circumstances. Much mental illness, however, takes place in a social setting and comes to our attention only because of its impact on society. That cannot be ignored. As the Government and noble Lords have rightly said, you should not treat a person for a mental illness simply because of something that is happening in society unless it can also be shown that there is a problem for the person. But many cases of personality disorder, particularly when the impact is felt in the local community, are distressing for the individual, too. They might not express it by saying “I am distressed” when they are causing amazing problems for those around them or attacking people in the street or whatever. They may be very defensive about what they are doing and claim to be perfectly rational, but that happens also with other aspects of mental illness. Personality disorder is not the only situation where the person denies an illness or condition that could be treated, to put it more appropriately. I accept that there is a problem with calling personality disorder an illness, but I do not accept that there is a problem with saying that personality disorder can be treated. It might not be cured in the full sense of the term, although even that could be arguable, but the situation could certainly be alleviated.

When I last spoke on this I gave a couple of examples of the impact on the community, which we cannot ignore. The impact, particularly in stressed, inner-city areas, comes to the attention of Members of Parliament because the person’s behaviour becomes so extreme that others are frightened by it—and often rightly frightened; it is not imaginary. People may find the behaviour so disturbing that they try to remove themselves from the setting although they can see, and will often say, that the person concerned is “mad”. They use the term in the conventional way that society uses it. They express total amazement when they are shown a letter from the health authority saying that the person has an “untreatable personality disorder”. They see the impact of the personality disorder. If the individual lived on a desert island or in the middle of nowhere, the behaviour would probably not be noticed. But that does not mean that the individual is not a distressed person who requires treatment. The social and community aspect is important.

Debates in this place are good because they are so often fed by experts with expert knowledge. But one of the advantages that the House of Commons has over the House of Lords, not always having that expert knowledge and having other agendas as well, is that it picks up this sort of issue on the street. The other week I gave those examples because they are real cases causing real distress to people who are not being treated, as well as to the community. I say to those who support the amendment that my argument essentially is that the other side of the patient’s right to refuse treatment and the doctor’s right to refuse to get involved with difficult cases such as personality disorder is that those who are not being treated but could be treated, should be treated. There is an element of principle there.

My Lords, I am extremely grateful for the intervention of the noble Lord, Lord Soley, because he appears to have made a case for the amendment. People with serious personality disorders can be treated and should have access to treatment and the wide range of facilities available to them. The whole point of the amendment is that everybody detained in hospital should have appropriate treatment made available to them, treating their symptoms and signs of disorder. That is, after all, the therapeutic object of admitting all patients to all hospitals.

We cannot succeed in instantly curing everybody—we all know that; it is the same in every branch of medicine—but we can certainly have a go. That is the therapeutic intention, and there is a determination that we should not move away from it. I say to the noble Lord, Lord Soley, that we do not want balance on this point. Having read through the Government’s amendment, I was initially cheered because I thought most issues had been addressed. In fact, the more you look at the wording, the more you realise that it was a rather mean-spirited response to the problem that we were trying to address. We must have absolute clarity on this, which is why we must support the amendment.

My Lords, Amendment No. 12 demonstrates how the Government are broadening the field in this legislation in respect of mental disorder and medical treatment. In regard to the problems with which the legislation is trying to deal, the field has been broadened beyond the effect on the person himself. Psychiatrists, psychologists and other healthcare professionals are being asked to address the problems of society, which were set out by the noble Lord, Lord Soley.

The legislation is not intended to deal with people who suffer from particular kinds of personality disorder, such as borderline personality disorder, to which the noble Baroness, Lady Royall of Blaisdon, referred—that term has come into psychiatry relatively recently; that is, in the past 25 to 30 years. It is not a question of whether treatment is available; treatment is available on the basis of whether resources are available, not on the basis of whether there is a Mental Health Act. The Act is there for the compulsion of patients.

The kind of personality disorder being adverted to is not where a person has a conflict inside himself, is deeply troubled and wants help; it is where a person does not have a conflict inside himself but has a conflict with society, does not seek treatment because he is not aware of any problem and therefore does not try to deal with it, but other people around him suffer from the effects. The criminal law is there to deal with him if he breaks the law and the contract each of us has as a citizen with the rest of the community. That is perfectly appropriate, but what is not appropriate is to provide in a Mental Health Act that the effects of a person’s actions on other people should be the reason for the treatment meted out to him. It would not be treatment through medication because the only medication that would be of any value would be to dope him to the point that he did not know what was going on but that would not have any therapeutic benefit.

The noble Earl, Lord Howe, is right that the key words in Amendment No. 12 are the last two: “or effects”. Effects on whom? The effects on the person himself or the effects on society? In other words, if the person’s behaviour does not trouble him, but troubles the rest of society, it should be dealt with not under the criminal law but under mental health legislation, and doctors, psychologists and nurses should cope with it. That is the problem. That is why Amendment No. 7 refers to preventing,

“a deterioration in his condition”.

The key question is whether we are asking psychiatrists, psychologists and nurses to deal with society’s problems or to deal with the problems that patients have inside themselves that cause them difficulties. That is their role. They have a role, but it is not primarily the role of healthcare professionals to be social policemen.

My Lords, I welcome almost all of the Government’s amendment, but I am concerned about the inclusion of the words “or effects”. They seem to leave the door wide open to achieving the objective of the original clause of the Bill; that is, to expect doctors to agree to the detention of people who do not have a treatable disorder or who have not committed any crime. Will the Minister assure the House that that is not his intention? If it is not, perhaps he will agree to a very minor adjustment to his amendment. One way forward would be the deletion of “or effects”, which would go a considerable way in the direction that we all wish to go, ensuring that doctors were left to treat people who have an illness and who are treatable. The other way forward would be to add “upon him” after “or effects”, making clear that if there are undesirable effects upon the individual, there may be some merit in treating him. Either adjustment to Amendment No. 12 would leave me not wishing to vote against the Government. However, in the absence of that, this amendment does not give me the assurance that I hoped it would.

My Lords, I am glad that the noble Lord, Lord Alderdice, mentioned resources because I wonder whether a regulatory impact assessment has been made of this proposal. There are not enough resources to cope with people who have been clinically assessed as needing treatment, and now we are proposing to put into an overstretched system people who have not been assessed and for whom distinguished clinicians feel that the tension of that kind of environment is not appropriate. I would be grateful if the Minister could say what the regulatory impact assessment was of practical resources to bring about what the Government’s amendments propose.

My Lords, the words “or effects” are critical. If they mean the effects on the individual patient, it is important to have them because there is more to mental illness than simply its symptoms; its effects on the individual are very important. However, if “or effects” means the effects on society, the provision is less convincing. I would like to see “or effects” in the Bill together with “on the individual patient”. If that is possible, it makes the Government’s amendment entirely acceptable.

My Lords, this has been a good debate. I was grateful to the noble Lord, Lord Carlile, for his kind words at the beginning, although, sadly, he did not stop there. I disagree with him about the Bill leading professionals towards unethical behaviour or being a code of practice for a turnkey situation. That is not the Government’s intention, nor is it the intention of the legislation. There have been constructive discussions between noble Lords on this matter. I recognise how important our understanding is of the meaning of “appropriate treatment”. I hoped that the amendment would commend itself to noble Lords. It is clear that there are issues, particularly the meaning of “or effects”, that need to be teased out. If noble Lords do not press this amendment to a vote, I intend to see whether there can be further discussions between now and Third Reading to clarify some of the uncertainties identified. I shall then speak to a number of the specific comments made.

We want to ensure that detention and the other powers in the Act are only ever used for proper healthcare purposes. The Bill is not, nor has it ever been, about detaining people without offering them treatment. We wish to remove the treatability test, as discussed in Committee, because we believe that it has led to a culture in which too many people, especially those with personality disorders, are labelled untreatable. It is almost as though the treatability test has perversely been taken as a signal that those people are assumed to be untreatable. I well understand that the treatability test is not the sole cause of this problem, as a complex web of factors has come into play, but I am satisfied from my discussions with many people in the profession that the test seems to have been an important part of the problem in dealing with and treating—albeit a small number—people who undoubtedly require support.

My Lords, first, I am grateful to the Minister for addressing the debate in such detail and for giving a response that has been helpful to a limited extent. Secondly, I thank all those who have taken part in this debate of nearly an hour on an important issue at the centre of the concerns that many of us have about the Bill and the Government's approach to the reform of compulsory mental health law. I was going to spend a little time answering the noble Lord, Lord Soley, but I will not because, in my view, the noble Baroness, Lady Murphy, has briefly but comprehensively answered the point that he sought to make.

Clinicians are obliged to act within the law, whatever their medical ethical codes say. We in this place and the other place make the law and the power of Parliament is such that if we pass a law that forces a change in their ethical code, it is only on the highest slopes of judicial review—possibly even in the European Court of Human Rights—that there is any prospect of obtaining change. I am very persuaded by the fact that we have heard from two extremely distinguished psychiatrists during the debate: the noble Baroness, Lady Murphy, and my noble friend Lord Alderdice, who have expressed great misgivings about the Government's approach to the whole question of therapeutic benefit.

We have heard not only from them. Over the weeks and months we have heard from many of their colleagues, in particular, from the Royal College of Psychiatrists. They are all totally unpersuaded by the Government's approach. Nobody who could properly be treated, as the noble Baroness, Lady Murphy, said, would be excluded if our Amendments Nos. 4, 6 and 7 were adopted.

The Minister generously offered to talk further on the matter. However, I see no meaningful sign of movement in his approach. He said to the House just a few moments ago that the Government still, after this debate, see a justification for leaving in the words, “or effects”. Considering that remark, it seems to me that the time has come for the House to show what it thinks on the issue of therapeutic benefit.

My Lords, I simply say to the noble Lord that it is clear from the debate that there is some doubt about the meaning of the words, “or effects”. I merely suggested that it might be appropriate to take a little time to explore that between this stage and the next.

My Lords, I am very grateful for that, but the Government have had since March 2005, to take an important date when the Joint Committee's report was produced, to consider the issue. They had notice of the amendments. For the life of me, I cannot see how the words of Amendment No. 4 disadvantage the Government in any way whatever. Other stages of the Bill will take place, not least in the other place. In my view, the time has come for this House to express an opinion on the issue. That is what I propose to ask the House to do. I hope that that will not be regarded as discourteous by the Minister. It seems to me an appropriate step at this stage.

moved Amendment No. 5:

My Lords, I support all that the noble Lord, Lord Carlile, said, and I do not propose to repeat those points. I would, however, ask the Minister to focus on a particular aspect of this issue when he replies. The Government have sought to respond to some of the concerns expressed in Committee by tabling amendments that would require the responsible clinician, if he is not a registered medical practitioner, to consult a medical practitioner who has examined the patient before a renewal passport is issued. To be clear, is it correct that consulting a medical practitioner is not the same as agreeing with that practitioner? What happens if the two professionals do not agree? What processes are there for resolving disputes of this kind in which, say, a doctor does not believe that there are valid grounds for a renewal passport and the responsible clinician does? If the responsible clinician remains in overall charge of the patient, is his or her opinion trumped by that of a doctor? If so, where does the government amendment make that clear? Who, in the end, takes the decision?

Secondly, the concerns which I and others raised in Committee related primarily to professional expertise. Our worry was that renewal of the detention order is at least as complex a business as the original decision to detain—it is often more so—and therefore it cannot be right to allow for professionals who lack the necessary competencies to take the renewal decision. This concern has since been echoed by the Joint Committee on Human Rights following a case heard by the European Court. The key requirement from the human rights point of view is that the approval of the responsible clinician should depend for its validity on his competence to provide the objective medical expertise required by the convention. Either he has that competence or he does not. I continue to argue that it is essential for a medical practitioner to be intimately involved in the decision making. Initially the Government took a different view but they have now changed their mind. Do they now acknowledge that the Bill in its current form is not human rights compliant, and if so do they believe that their amendments put right the defect?

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

“the ability to identify the presence or absence of mental disorder and the severity of the disorder”.—[Official Report, 15/1/07; col. 446.]

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

I welcome the fact that the Government have moved in the direction urged by many of us in Committee. However, some important questions have been left dangling and I am a little worried that if the government amendments are accepted as they stand, we will be left with some important uncertainties.

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

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

By contrast I have no hesitation in supporting the amendment moved by the noble Lord, Lord Carlile, which would make it a requirement that a doctor examines the patient and concurs that the conditions for detention continue to be met. That is what is and should be required of our legislation.

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

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

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

Currently, key functions must be allocated along strict professional boundaries, but we do not believe that this is the most effective or efficient way of operating. It is the Government’s aim that key functions should be performed by the most appropriate professional. All responsible clinicians in England will be approved as approved clinicians by strategic health authorities. They must have demonstrated high levels of skill and experience in mental health and have undergone specific training in order to be approved. The competencies that must be demonstrated before a person can be approved have been agreed with a wide range of stakeholders, including the Royal College of Psychiatrists, and will be in directions that have the force of law.

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

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

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

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

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

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

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

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

My Lords, I am grateful for that clarification. However, I fully agree that the team approach is the best one.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

moved Amendments Nos. 6 and 7:

My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, I suggest that Report begin again not before 8.36 pm.

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