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Mental Health Bill [HL]

moved Amendment No. 51: 51: After Clause 31 , insert the following new Clause— ““Referral to tribunal by hospital manager After section 66 of the 1983 Act insert— ““66A Referral to tribunal by hospital manager (1) Where a patient who is admitted to hospital in pursuance of an application for admission does not exercise his right to apply to the Mental Health Review Tribunal under section 66(1) above, the managers of the hospital shall, before the expiration of the period for making such application, consider whether— (a) the patient lacks capacity to decide whether to make such an application; and (b) there is any good reason why such an application should not be made. (2) In considering whether there is any good reason why an application under subsection (1) above should not be made, the hospital manager shall have regard to the wishes of the patient. (3) Where the hospital manager reasonably believes that the patient lacks capacity and that there is no good reason why an application under subsection (1) above should not be made, he shall refer the patient’s case to the Tribunal unless an application has already been made.”””” The noble Earl said: The purpose of the amendment is to address a significant gap in the mental health review tribunal system in respect of patients who do not apply for review of their cases because they lack the mental capacity to make their own decisions. Although such patients enjoy a right of appeal to the mental health review tribunal, in practice the right is not exercised because the patients themselves fail to appreciate the options available to them. In certain cases this has meant that mentally incapable individuals have received inappropriate treatment or endured wholly disproportionate restrictions without the benefit of effective review because no application was made on their behalf. The amendment seeks to remedy this protection gap by imposing a duty on hospital managers to assess patients who have not exercised their right to apply to the tribunal and determine if there is any reason why an application should not be made, having particular regard to whether the patient has the mental capacity to take such a decision themselves. The draft clause creates a presumption that hospital managers should refer such cases to the tribunal unless there are good reasons not to. The duty on managers to assess non-appealing patients, together with the presumption that referral should be made, would help to ensure that patients lacking capacity would enjoy the benefits of the tribunal review. At the same time, the use of a presumption would also avoid the dangers of automatic referrals of all patients lacking capacity as there may well be circumstances when a patient lacking capacity has none the less clearly expressed a wish not to undergo the appeal process and its associated assessment procedures. I beg to move.