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New clause 18
Review
'(1) A care plan for P must specify the date on or before which P's responsible clinician must carry out a review (the ''review date'').
(2) The first review date must be not more than six months after the day on which the plan is approved under section K.
(3) Each subsequent review date must be not more than six months after the previous one.
(4) P's representative may request a review at any time, but may not make more than one request in any 6 months.
(5) On each review the responsible clinician must consider—
(a) whether the conditions specified in section E are met,
(b) the date to be substituted in the care plan at the next review date, and
(c) whether the care plan should be otherwise amended.
(6) If the responsible clinician determines that any of the conditions under E are not met in P's case, P ceases to be a qualifying patient.
(7) The responsible clinician must inform P's representative in writing of the determinations made on any review and the reasons for them.'.
New clause 19
Refusal of a request for review
'(1) If the responsible clinician refuses a request under section M(4) for a review, he must, if required to do so by P or his advocate or representative, refer his decision to a member of the Expert Panel who is a registered medical practitioner (the ''medical adviser'').
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(2) If, on a reference under subsection (1), the medical adviser decides that the review ought to be carried out, the responsible clinician may either—
(a) carry out the review, or
(b) apply to the court.
(3) If—
(a) the responsible clinician fails to make a reference under subsection (1),
(b) the medical adviser agrees, on a reference under that subsection, with the decision not to carry out the review, or
(c) the responsible clinician fails to act in accordance with subsection (2),
P may apply to the court.
(4) On an application under subsection (2)(b) or (3), the court must determine either—
(a) that the responsible clinician must carry out the review, or
(b) that he is not required to carry out the review.'.
New clause 20
Disputes about outcome of review
'(1) The responsible clinician must, if requested to do so by P's representative refer to the medical adviser appointed by the Secretary of State for that purpose any complaint made by P's representative as to the outcome of a review.
(2) If, on a reference under subsection (1) the complaint is not resolved within the prescribed time and the medical adviser upholds the complaint, the responsible clinician must apply to the court.
(3) If—
(a) the responsible clinician fails to make a reference under subsection (1),
(b) the complaint is not resolved within the prescribed time, and the medical adviser dismisses the complaint, or
(c) the responsible clinician fails to act in accordance with subsection 2,
P's representative may apply to the court.
(4) On an application under subsection (2) or (3), the court must, so far as relevant to the application, make a declaration either—
(a) that the determination of the responsible clinician in respect of that matter is approved, or
(b) that the determination of the responsible clinician in respect of that matter is not approved.'.
New clause 21
Application to the court for discharge
'(1) An application may be made to the court by P or by his or her representative for an order requiring the managers of the hospital to discharge P.
(2) If the court is satisfied that P is being unlawfully detained at the hospital, it must make the order.'.
Mr. Tim Boswell (Daventry) (Con): I have no objection in principle to clause 28, but discussing it paves the way for a debate on the new clauses. I do not intend to speak at length about them, but I want to say a little about the important interaction of this legislation with the mental health legislation that is promised and which, in parallel with our deliberations, is being considered in draft form by a scrutiny Committee. I also want to address the question of where a particular issue should be resolved.
Anyone who has spent any time dealing with this matter knows that I am referring to the so-called Bournewood gap, which has been the subject of a determination by the European Court of Human Rights within the past month. That requires careful
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analysis by the Minister of State, Department of Health, the hon. Member for Doncaster, Central (Ms Winterton) and her officials, and I know that Ministers are not super-people.
I should have graciously said that it is very nice to see that the Minister is now dealing with the debate. That is not meant to be derogatory to her colleague the Under-Secretary of State for Constitutional Affairs, the hon. Member for Tottenham (Mr. Lammy), but it changes the batting and the Department, which is important. I am sorry that my party cannot offer to do the same at present—at least not on its Front Bench. I will defer later to my hon. Friends, and in particular to my hon. Friend the Member for Tiverton and Honiton (Mrs. Browning); they will have more to contribute.
I have to admit to the Committee that I have undergone a slight conversion on this matter; I do not often admit to such experiences, but perhaps politicians should. My immediate reaction was to say that the matter ought to be dealt with under mental health legislation, because it is about detention. Let me explain that. I am only a layperson, but as I understand the Bournewood judgment the cardinal issues were: was the person detained, and was there was a process under which they were properly detained when it was necessary for them to be detained? Not unusually—the Minister will be familiar with judicial reviews in the United Kingdom system—the judgment in this case was very much about process. The judgment specifically stated that clinicians and medics had acted in good faith in the matter and—I suspect, although I cannot remember the exact reference—in the patient's best interests, but that a process was not in place.
If we are detaining people, we must have a process in place. The present mental health legislation now dates back over 20 years. Even if it is defective or needs updating, the cardinal provision of the Mental Health Act 1983 is a system for detention and safeguards in respect of the detained person; somebody can step in and make representations, and there is a process.
I defer to my hon. Friend's great knowledge of this matter, but as I understand it the difficulty with the Bournewood gap is that the person was not sectioned, to use the old-fashioned phrase; they were not detained compulsorily, either for their own good or for the good of other persons. This was a voluntary patient, who had no capacity, and the essence of the Government's case was that that person was detained on an argument of necessity. However, that would be displaced by clause 5 of this Bill, and the specific provisions for the various appointments, which we have also been discussing. The European Court felt that that was insufficient to deal with a position of detention.
My immediate reaction was that that was a mental health matter. It was buttressed by the prudential point that there is already a mental health review tribunal. There is a process—a mechanism—and the Minister's colleague, the Under-Secretary of State for Constitutional Affairs, did not want to overload the Court of Protection with a lot of detailed cases, particularly of a day-to-day or comparatively regular nature, because it would be better for it to deal with
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issues essentially of life and death, which would arise only in exceptional cases; there are hundreds rather than thousands of them a year. That all seemed perfectly reasonable, and somebody whom I know who is involved in the law tended to advise along those grounds.
I must now say why I have changed my mind. As a result of advice from the Royal College of Psychiatrists and others, and of going back and reflecting on the matter, I now feel that it should be dealt with in this part of this Bill. I will start with the lower order reason for making that decision. There would clearly be a gap of a different kind if we did not address this matter in the Bill.
There is a reasonable presumption, which I do not seek to derail, that the Ministers will have their legislation on mental capacity in place by next spring. The Mental Health Bill is a year behind, for reasons that we need not go on at length about now. It is still being subjected to scrutiny and, subject to whatever decisions are taken by the business managers, it may not appear, and is not likely to become law, for some considerable time.
Therefore, there is a legislative gap to add to the Bournewood gap: there will be no response to the ECHR judgment unless and until we have changed the Mental Health Act. That is a lower order reason for proceeding, because it flags it up to the Minister—quite firmly, I hope—that there will be concerns if the matter that we are discussing is not covered. Decisions taken by clinicians in good faith will have to be taken with a rather shaky legal cover while that matter is being considered, and until it is tidied up.
A senior lawyer in another place, to whom I spoke last night, said that he was concerned because there might be other areas of the mental health legislation that urgently need tightening up anyway, even before a full mental health Bill. That, however, would not arise under clause 28.
As I said to the Minister, that was the lower order reason for my changing my mind as I reflected on the matter. The more substantial reason is that the main point about the Bill is the fact that it is about capacity and the best interests of the person involved.
Mrs. Joan Humble (Blackpool, North and Fleetwood) (Lab): I am pleased that the hon. Gentleman has moved on to higher order issues. Surely one of the other failings in the process involved in the Bournewood gap is that the carers of Mr. L were not consulted or involved, and they were denied access to him. Yet, under this legislation, when the assessment of capacity and the person's best interests are being discussed, the carers, whether they are informal carers, family members or professional carers—as I understand was the case with Mr. L—would be part of the process. He would not therefore have languished for three and a half months in an institution without anyone being involved in determining that.
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