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Mental Health Bill [HL]

First, the noble Lord, Lord Rix, sends his apologies to the Committee. He is quite unwell and has gone for some tests. He has asked me to give his apologies for not being able to speak to the amendment about which he felt passionately. In adding my voice to the amendment—it is probably one of the three most important amendments we have tabled—I do not wish to repeat what the noble Earl, Lord Howe, and the noble Baroness, Lady Barker, have already said. They have been eloquent in their statements and I fully support their arguments. I wish to talk about the clinical realities of daily life as a psychiatrist and why I and my colleague professionals believe that it is time to introduce this extra criterion. I shall mention assessing capacity and decision-making because I have heard quite a lot of nonsense talked outside the Chamber about the process; it is really quite straightforward. I also wish to mention the extraordinary impact on the culture of psychiatric practice which the current discriminatory legislation produces and, most importantly in this Chamber, why there are fears that this would lead to mentally disordered people being excluded from care and treatment. I believe that to be completely wrong. It is also extremely important in the other Chamber, whose Members receive many letters about people who it is felt might be excluded from care and treatment because of current proposals. The small country north of the Border, to which we referred on Monday, has already adopted this measure in its new mental care and treatment Act 2003 with no adverse consequences at present on the care and treatment of mentally ill people in Scotland. I accept that there is only a year or so of experience on which to judge but so far there are no great disasters. I do not believe that the amendment will change who is detained and who is compulsorily treated since by the time someone is sufficiently disturbed that they satisfy the criteria of detention—that is, that they have a disorder of a nature or degree which warrants detention in hospital and it is in the interests of their health and personal safety or for the protection of other people—the level of disturbance is such that in practice the majority of, if not all, patients who are assessed for a Section 2 order will have significantly impaired decision-making in relation to their care. That is why one is assessing them in the first place. The code of practice says that compulsory admission powers should only be exercised in the last resort. I think that we know that on the whole that is the case. In Section 3 a patient’s condition must be sufficiently severe to warrant continued detention in hospital. Almost always the patient has continued impaired judgment about the short and long-term outcomes of any care plan, which will bring him fully within the Act if this amendment were to apply. That is as true of people with seriously abnormal disturbed personality disorders, as of people with psychotic illnesses and profoundly disabling neurotic disorders. We have already heard about Professor George Szmuckler’s research at the Institute of Psychiatry, about the patients at King’s and at the Maudsley, where it is clear that 85 per cent currently detained for treatment—and the assessments were done after the immediate period of admission—did not have capacity at all. That is using the much higher test. If we lower the bar and put the test further down to impaired decision-making, almost everybody would be included. I have often received letters from Members of the other place about difficult and challenging people, whose mental disorders give rise to a degree of mayhem in the community. Clearly, there are many such individuals. I think for example of people who cause a lot of concern, such as a young woman going around the community and perhaps setting fire to things, who is cutting herself, who is very disturbed and who ends up in A&E threatening to commit suicide. Such people do not get into hospital when they should. They seem to be in and out of casualty and causing great distress to their families and the community. Nobody can understand why they have not been admitted and detained. The young male stalker is another typical case which causes serious concern among everyone in the community. For some reason such people seem to get assessed but not admitted often enough, and yet there are concerns about when that will flip over into a serious problem for the young woman. Then there are the people in the community with other sorts of personality disorders who come through the magistrates’ courts, such as persistent recidivist offenders with seriously disturbed personalities that are the bane of housing officers, who again seem to be constantly circling around. It has been suggested to me that these people are extruded because they do not fit the criteria of the Act and that these people would be removed from the Act by the amendment. I am absolutely clear that that is not true. If you look at these people and assess their capacity on impaired decision-making, you would find that they would fall quite well inside the Act. The current doctrine of suspension of all rights to autonomy survives as the sole distinguishing feature in discriminating patients; the rights of patients detained in a mental hospital separates them off from all other occasions when they are being offered medical care. That encourages psychiatrists and psychiatry teams to behave in not exactly an authoritarian fashion—in fact I often wish my colleagues were a little more interventionist and authoritarian—but rather in a culture of ““take it or leave it. We have the upper hand. We don’t need to consult or take patients’ capacity or views very seriously””. Patients believe that they have no rights of any kind when they have recovered, and, even when they should be returning to their old selves, they believe that their rights to autonomy will never be regained. This amendment would ensure that those rare people who have full decision-making powers could not be forced to have treatment. It would signal a change in relations between civilly detained patients and clinical services, which would be of immeasurable benefit in giving patients confidence in the system. Once again, I refer to the over-representation in our mental health system of black and minority ethnic communities, especially young black men. The new clause would give them some small confidence that they would be treated on the same lines and receive the same sort of benefits as people going into hospital with any other illness. I turn to the assessment of mental capacity and decision-making and congratulate the noble Baroness, Lady Barker, who gave a marvellous example of how it works. It is a regular function of health professionals in relation to consent to treatment for all illnesses, physical and mental. Capacity is often thought of as a matter of intellectual reasoning or cognitive powers in relation to a specific decision. Of course that is an important aspect, but sufficient cognitive capacity—if you like, megabytes of brain computing power—is a prerequisite for decision-making but by no means the only or, indeed, most important aspect of it. I want noble Lords to consider for a moment the big decisions that they have made in their lives and to ask themselves whether their decision to marry, to have children, to enter a particular career or profession—indeed, how they framed their will—was made on the basis of intellectual judgment or whether emotions, personality and the timing of the decision in relation to other events in their life had a major impact. I used to do a lot of testamentary capacity work, the difficulties of which, while often about assessing cognitive capacity for decision-making on intellectual grounds, was also extraordinarily often about whether undue influence and disturbed affect may have influenced the decision. The test of impaired decision-making has a lower threshold, is a more flexible test and is very familiar to professionals as a concept. It is what most psychiatrists do every day and what most doctors do every week in treating mental disorder. I have heard it said that capacity can fluctuate. There is only one condition in which it fluctuates dramatically: acute toxic confusional states or delirium, where one can be mentally normal at one point in the day and profoundly comatose at another. There is not a great deal of fluctuation, there is gradual improvement in people with mental disorders who are in receipt of treatment. Rather as you do not accept one good sugar level as evidence of control of diabetes in someone with the condition, you do not accept one piece of evidence of full capacity as evidence of ongoing capacity and proper decision-making capacity. George Szmuckler’s research demonstrated that two doctors had very high rates of agreement on who had capacity and who did not. In other words, those decisions are not difficult to make. After all, that is what we are trained to do; psychiatric teams do not have that difficulty. Genevra Richardson concluded in her report that non-discrimination on grounds of mental health was central to provision of care and treatment for those with mental disorder. She stressed her committee's desire to encourage the treatment of mental health according to principles similar to those that govern the treatment of physical ill-health. That is not to say that mental disorder is not different from physical disorder—of course it is in many respects—but the same principles of autonomy apply. Respect for patient autonomy is total in every other field of medicine. The Mental Capacity Act enshrines that and is a fine example. We have already heard about the dying cancer patient. We must let patients gamble with their own health and safety. Cardiac patients continue to smoke and liver patients continue to drink—against advice, perhaps, but there is no law against it—but we do not allow people with uncontrolled epilepsy to drive because the safety of other people is at stake. We are talking about people’s choices about their own health when they have full capacity. In mental health, we throw out the basic principles even when people are perfectly capable of choosing treatment for themselves and are no danger to others. This is all about patient autonomy—the freedom to decide for oneself whether to accept medical help if one retains decision-making capacity. That is fundamental to patients’ rights and is at the core of this legislation. This is not simply an academic debate; it has important clinical consequences. A statutory framework is operated daily by health and social care professionals, and works smoothly only if it reflects the values of those who are going to use it. If it contradicts those values, its chances of working will be significantly reduced. Secondly, the conditions for the use of compulsion lie at the heart of the Bill, so we must get them right. They have to be workable and predictable. Thirdly, and finally, we must have a Bill that works alongside other relevant legislation, in particular the Mental Capacity Act. I know that the Government are concerned that it is premature to embrace a fundamental shift in the criteria for compulsion and that, inevitably, the doctrine of necessity will triumph, no matter what. I do not believe that that is true, for the reasons that I have outlined today, but what a signal it would send to end the stigmatising discrimination of the mentally ill.