---

Mental Health Bill [HL]

moved Amendment No. 6: 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.