| Mental Capacity Bill
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Mr. Boswell: Yes. If I may say so, the hon. Lady has illuminated the point very well. Central to this issue—I Column Number: 238 should have added it to the list of good things in the Bill—is the built-in requirement for consultation; that would help. I will return to the subject in a moment, because we should not shy away from it, but even if we used the Bill and we thought that it was in a person's best interests for them to be voluntarily in some form of treatment—Mrs. Angela Browning (Tiverton and Honiton) (Con): It might interest my hon. Friend and other Committee members to know that the carers in that case were paid carers. I shall read to the Committee a letter from them in which they continue to express concerns about the Bill; even as it is currently drafted, they would not have been included as people to be consulted. Mr. Boswell: That is a sobering point, and perhaps we will hear more about it in my hon. Friend's speech. It should be self-evident, even if we did not have the relevant legislation, that it is good practice to consult. It is distressing if that does not happen. It is another element that the ECHR took into account during their discussions. I was about to say to the hon. Member for Blackpool, North and Fleetwood (Mrs. Humble) that we must face the fact that there could be a clash between carer and clinician, however much consultation takes place. That would ultimately come before the Court of Protection, which would then determine the matter with regard to the regime of care and treatment, but might also have to consider, under this measure, the issue of detention. I revisited the clauses that we have already dealt with—specifically, the famous clause 5, which would update the old doctrine of necessity and enable carers to take action. Later, the duties of people appointed as deputies are set out. Under clause 16, deputies would have powers to rule on personal welfare issues—on behalf of the court, in effect. Such issues would include where P is to live, for example. I suppose that one could argue, and perhaps the Government would want to, that a decision about where P is to live would cover wherever they might be taken for treatment without being able to leave. The power to decide that would have been devolved to the deputy, just as, under clause 5, carers would be given very general powers—I shall not use the words ''general authority''. Clause 6 would limit such powers in the case of restraint, but they would not be taken away altogether. I can understand the mindset that has emerged from what Ministers have said to date. Prior to the ECHR judgment, they could say that the Bill was about the overall approach to the needs and best interests of the person without capacity, and that there were general powers for carers, and specific powers for deputies to exercise on behalf of the court, which covered where the person should reside, if, in the judgment of the deputy, after consultation and all the other caveats, it was in their best interests. However, all that is cast into doubt by the ECHR judgment. Ministers must react to that, and the Bill would be the right place to do so, because they could build on some of the concepts. Column Number: 239 I want to go back to something that I said to the hon. Member for Blackpool, North and Fleetwood a moment ago. First, not everybody with a mental problem has to be treated in hospital. One of the difficulties is that in mental health legislation we are talking about a detention ''sectioning'' someone, or whatever, to a mental health hospital or institution. That may not be appropriate. Secondly, this Bill, and all that it says about those engaged in taking decisions on behalf of a person, is about the overall best interests of the person, which will include courses of treatment, what is sensible and what safeguards there are. Arguably, such best interests could include personal safety or an assurance that the person will continue treatment until it has done its work. To take an analogy from a rather different context, many of us are concerned that if mental patients are released into the community, they get slack with their medication and they go back to having problems. So it is perfectly reasonable to say that carers and clinicians need to look together at where the incapacitated person should live, be protected and receive complete treatment. That might be in their best interests. However, it might be seen as detention—not, of course, detention for an offence, but some kind of compulsory locking up or inhibiting of the person. We need to respond to that idea. There is also the real-world issue of people with fluctuating capacity, particularly those with a mental illness. A GP might say to such a person, ''We think you need help. Would you like to go to this place and get some?'' While they had capacity, the person might voluntarily consent to that; they might have a mental illness condition, but they might still have mental capacity. How would it be if the news got around that they could go to such a place as a voluntary patient, but might never come out because somebody might detain them—what is more, detain them without the safeguards available under the Mental Health Act? That could act as a deterrent, which is one reason why I expressed concern before.
2.45 pmWhat we should do about this I am not certain, but Ministers need to get a grip on the issue now—I do not mean today, but during the passage of the Bill—and get a sensible response into the Bill. I do not think that that can wait indefinitely. In the interests of the people, and now that we have excited the interest of the European Court, I do not think that it would be wise to wait. The Bill is the best forum for dealing with the issue. We must build on the concept of taking a holistic approach to someone's best interests, ensure the minimum intervention appropriate to secure a person's safety and welfare, and ensure the qualified nature of acts that can be done for them. As was discussed extensively this morning in a different context, we probably need some kind of independent certification by a third person—someone from outside who has no interest in the case—who must agree that something is in the person's best interests. On the analogy with the Mental Health Act, we may need a review procedure whereby that person is not permanently detained, and under which the case can Column Number: 240 be reviewed. That would go some way to meeting the concerns expressed by the European Court and by carers. That would be a sensible incremental response, and this is the right Bill to deal with it at the earliest possible moment.Mrs. Browning: I realise that many distinct areas are covered by new clauses 6 to 21, which I tabled, but as my hon. Friend the Member for Daventry (Mr. Boswell) outlined, the purpose of the new clauses is to use the Bill to close the Bournewood gap. As a House, we are in quite a lot of difficulty at the moment because of the two separate Bills running in tandem. We also have some difficulty in that the Bournewood judgment is relatively new, but the Government must acknowledge it in law. I appreciate that the Government will need to take best advice and consider the matter, but I am convinced that the Bill is the right vehicle for filling the Bournewood gap. Indeed, the Joint Committee, of which I was a member, made it clear in our recommendations to the Government that the Bill should close the Bournewood gap, but at that stage we had not yet heard the determination of the European Court. Over several years, and through the consideration of the draft Mental Health Bill, we have become aware that the Bournewood case has flagged up a problem, but until now it has been difficult to know exactly what we need to do. We now know what to do; the question is how we do it, and which Bill to use. That is at the heart of my new clauses. Before I say any more, it might be appropriate to declare some interests; as many people know, I hold several positions in autism charities, including the National Autistic Society. I know the carers involved in the Bournewood case personally, and I have followed that case for some years. It might also be helpful to identify the surroundings of the Bournewood case, because although it is of particular interest to people with autistic spectrum disorders, it goes wider than that. It brings within its scope a lot of people who would fall into the same category as Mr. L, a gentleman with autism in his 50s, who had lived for some years with paid carers as part of their extended family. He was taken to psychiatric hospital in July 1997 but was not allowed to leave. He remained there for some five months. He was deemed mentally incapable of consenting to treatment, and that meant that his detention in hospital was authorised under the common law, effectively on the basis of a single doctor's opinion. The opinion was that Mr. L was suffering from a cyclical mood disorder, and that admission to hospital was in his best interests—a term that we have mentioned quite a bit in Committee. Therefore, there was no need to use a sectioning order under the existing mental health legislation. Through his carers, Mr. L took proceedings through the High Court to the House of Lords and then ultimately to the European Court. We have now heard the judgment, with which the Minister will be only too familiar. It is not just people with autistic spectrum disorders who would find themselves in a similar situation. It Column Number: 241 would extend to a great many people who lack capacity but are detained under the common law. My new clauses enjoy widespread support in the disability world, including that of the National Autistic Society. I must credit the Making Decisions Alliance, which has assisted me with the drafting of the clauses and in trying to see how best to fill the Bournewood gap.The Joint Committee pointed out to Government on page 63 of its report the need to fill the Bournewood gap; indeed, the Minister gave evidence to our Committee. Nevertheless, having heard the Minister's evidence, we felt that a great deal more clarification was needed. At that time she was waiting for the European Court's decision, but in view of the Joint Committee's recommendations and the Government's response, the Minister should consider this Bill as the appropriate vehicle. The Committee said at the time that it disagreed with Lord Filkin's assessment, in terms of recommending that consideration be given to making a statutory requirement for an independent second medical opinion. I was interested to hear yesterday, when I attended the Committee scrutinising the Mental Health Bill, that the Royal College of Psychiatrists supports a second opinion. We understand the weakness of a single doctor, as in the Bournewood case, taking a decision that, despite being taken in the best interests of the person concerned, was clearly wrong.
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| ©Parliamentary copyright 2004 | Prepared 28 October 2004 |
