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Mental Health Bill [Lords]

My right hon. Friend the Minister of State has yet to convince us on the point with which our amendments deal, and a meeting of minds may not occur. However, I hope that she will be able to make further progress on convincing us when she responds to the amendments. Amendments Nos. 70 and 73 in this group, and amendment No. 79 in the next, are designed to give effect to the recommendations of the Joint Committee on Human Rights in its fourth report at paragraph 26, and its 15th report at paragraphs 1.7 to 1.14. Our amendments would ensure that registered medical practitioners provide objective medical evidence of a mental disorder to justify detention and to cases before mental health tribunals. Our concern is that case law from the European Court of Human Rights—in particular, Winterwerp v. Netherlands and Varbanov v. Bulgaria—requires that objective medical evidence of a true mental disorder justifying detention should come from a medically qualified expert who has recognised skills in psychiatric diagnosis and treatment. The Bill’s current provisions do not require that. A surprisingly broad range of professional groups will be eligible to provide objective medical evidence of mental disorder, including occupational therapists and social workers. All must demonstrate an extensive list of competencies, but some of the competencies are very broad indeed. In our 15th report at paragraph 1.13, we make the point that it is not specified how people will demonstrate that they have those competencies. We state:"““The regulations say that the relevant authorities must have regard to references, but there seems to be no requirement for an examination.””" The Committee points out that the approval process under section 12 of the 1983 Act that applies to doctors does not, in our view, work in relation to the competencies, because many of the skills in question are medical skills, and occupational therapists and social workers do not already have the same baseline qualifications as doctors have. Our report continues:"““Second, the competencies relating to assessment require first an ability to identify the presence or absence of mental disorder and its severity… One competency refers to the ability to undertake a 'broad mental health assessment and formulations (sic) incorporating biological, psychological, cultural and social perspectives.' Frequent use is made of the term 'broad'. The competencies require a 'broad understanding' of different mental health treatment approaches. It is questionable whether 'broad competencies'””" are sufficiently rigorous to"““meet the intention behind the Convention safeguard of objective medical expertise.””" Our concern is that"““The European Court of Human Rights might well uphold a challenge based on Winterwerp and Varbanov in a specific case where, for example, detention was renewed on the basis of a report from an occupational therapist without evidence from a doctor that the patient continued to suffer from mental disorder of a nature or degree warranting confinement.””" In her helpful letter in response to that report and the question how competencies might be demonstrated, my right hon. Friend the Minister of State said that"““we will be working with stakeholders to determine the kinds of experience and training that would enable a professional to demonstrate the competencies.””" In other words, the detail is yet to be worked out. I believe that she accepts that the competencies are rather broad. It is interesting to see how the problem is described in a briefing produced on behalf of a range of organisations, including Unison, the Royal College of Nursing, occupational therapists and the British Psychological Society. Those organisations say that"““the responsible clinician role should be competency based””" but point out that"““Responsible clinicians will be extremely experienced members of staff””" who"““will have met strict criteria””" and who"““would have to pass several…thresholds””" and so on. In other words, in anticipation of the details being worked out, they make favourable assumptions, which I am sure my right hon. Friend will confirm. However, the detail is simply not there yet. The reason that is important is set out in the briefing from Mind, which points out that we are talking about a person potentially losing their liberty"““for up to 12 months on the say of a single professional.””" Mind emphasises that"““Renewing detention is no less important or difficult than the original decision to detain.””" and says that"““At the very least there should be two suitably qualified professionals from different disciplines agreeing the detention.””"