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Mental Health Bill [HL]

This has been a good debate. I detected signs of consensus among other noble Lords, but I am afraid that I am not going to be part of that. However, I respond to the noble Baroness, Lady Barker, and the noble Lord, Lord Owen, by saying that the Government are ever anxious to discuss and to see what ways there are to reach agreement on some of these important issues. But we think that this amendment is one of the core amendments that will undermine the broad intent of the Bill. It was a delight to hear the noble Lord, Lord Owen, speak. He said that the core purpose of what we seek to discuss is how to improve services and that legislation was not going to do that. I very much agree that services have been enhanced in recent years, and I think that I have acknowledged that more needs to be done. But this legislation provides a framework that builds on the 1983 Act and will enable better provision of services as the years develop. The primary purpose of the legislation is to protect people from the harm that may be caused by mental disorder. That means both those who have such a mental disorder and any others who may be at risk. The purpose is not to provide a way of intervening where people cannot make their own decisions. That is what the Mental Capacity Act 2005 is for. A number of noble Lords have already referred to that legislation. It therefore follows that it is the needs of patients and the risk that their disorder poses to themselves and to others, not their decision-making ability, that must determine whether compulsion should be used. Some people whose mental disorder creates a great risk to themselves or others may nevertheless retain the ability to make unimpaired decisions about treatment. That can be decided only on a case-by-case basis. In the Government’s view, a condition concerning impaired decision-making could result in some patients going untreated and thereby harming themselves or others. Or it could lead to clinicians feeling tempted to assess people inappropriately as having impaired decision-making in order to enable them to be treated. The first consequence would be contrary to the purpose of the Act as we see it. The second would place clinicians in an invidious position and would do nothing to encourage confidence in the Act among patients, the rest of the public or clinicians themselves. I should add that some people’s decision-making ability is unimpaired only because they are currently stabilised as a result of medication or other treatment, treatment which they might never have received but for the Act. We do not think it right for the Act to force clinicians to discharge such patients and wait for some of them inevitably to decide to discontinue treatment and decline to the point at which they are suffering sufficiently to be made subject to the Act again. I know that a number of noble Lords have referred to the concerns that Members of Parliament expressed, and it is right to acknowledge that those concerns are genuine. I listened with interest to the noble Baroness, Lady Barker, when she said that the issue of compulsion in itself has a negative impact on those who are subject to such compulsion, and I understand the point very well. However, the Act allows intervention precisely where people refuse the treatment they need. It is not obvious why such people, certainly not all such people, would be more likely to consent to treatment they do not want just because they are less likely to be subject to compulsion. I also listened with great interest to the comments about the research published by Professor George Szmukler, dean of the Institute of Psychiatry at King’s College, London. The noble Baroness, Lady Murphy, was right to point out that the research was into capacity rather than the terms of the amendment before us. The question is whether more or fewer people would be detained under a capacity or impaired decision-making test and whether there will then be a gap. Obviously none of us can forecast exactly what the effect will be, but we think that the intention behind the amendment is that some people who would be covered now may be excluded; and that is probably the most likely outcome. It may well be that it concerns only a small number of people, but I do not believe that the proponents of the amendment are in a position to reassure us that their approach would not lead to an unacceptable gap. I agree with the noble Earl, Lord Howe, that detention should be a last resort, but that is the whole purpose of the 1983 legislation and this Bill. It remains a fundamental tenet of our philosophy. But I would ask him and other noble Lords how it promotes a person’s autonomy if, because they cannot be treated, they seriously harm or even kill themselves or commit a crime they would never otherwise have carried out? An Act based on need and risk is not about intervening to deny people autonomy or to strip them of their rights, rather it is to intervene to help them to recover from serious mental disorder or learn to cope with it better so that they can enjoy that autonomy and be able to exercise those rights. The noble Lord, Lord Owen, and other noble Lords pointed out that the Scottish Parliament has taken a different view. It is perfectly entitled to do so. I agree that part of the blessing of devolution is that we can see how different approaches operate in practice, and in time approaches in practice can be modified as a result. But that does not mean that Scotland will always be right, and clearly the Government in Westminster must reserve the right to make their own judgments. It is interesting to read Professor Richardson’s original review of the Mental Health Act. She made it clear that the review committee was aware of powerfully held views on both sides which the report stated are ““effectively irreconcilable””. The report states: "““We believe they reflect a difference in fundamental philosophy which can only be resolved by according preference to one approach over the other. We have set out the alternative views as best we can and invite politicians to make the moral choice between them””." I would guess that that is what we are going to do this afternoon. I am not going to debate with the noble Baroness the proportion of psychiatrists who feel one way or the other. However, to say that only a small handful of psychiatrists support the Government’s proposals may be something of an underestimate. But what I do think the Richardson report shows is that there is a fundamental difference and that those views are powerfully held on both sides. Let me turn to the question of discrimination which, in a sense, is the test that the noble Earl, Lord Howe, set me at the beginning of this examination. The Government believe that it is right to bring people under formal powers even though they are legally competent to refuse treatment. We believe it is possible to distinguish between treatments for physical disorder and mental disorder and that we ought to do so. Far more often in cases of mental disorder, one effect of the treatment may be to change the patient’s views about the value of the treatment. For example, as their disorder is treated they may become less sceptical about the need for or benefits of treatment. As I have said, people’s capacity fluctuates over time. A key tenet of the Government’s proposals in the Bill is to avoid creating a new class of revolving-door patients whose treatment stops each time they regain capacity, only to start anew when they deteriorate and lose capacity again. I understand the question of stigma and discrimination. While I by no means claim to be an expert in the field of mental health, noble Lords will know of my association with a number of mental health organisations and my long-standing concern about stigma. But I think ““discrimination”” is a strange word to use if it means non-intervention in relation to people at risk of suicide or of causing harm to others. Is that really discrimination? I doubt the general public would think so. The noble Earl, Lord Howe, went on to say that one might be able to distinguish a patient’s potential to do harm to others from their potential to do harm to themselves. He suggested, as did the right reverend Prelate at Second Reading, that a case of a person potentially doing harm to others should be dealt with in the criminal justice system. As a lay person I can see that, apart from the clear difficulties involved in a clinician making such judgments, there is also a problem in saying that we should wait until someone has fallen into the criminal justice system—and maybe caused harm to others—before they can be appropriately treated.