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Session 2006 - 07
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General Committee Debates
Mental Health Bill [Lords]

Mental Health Bill [Lords]

The Committee consisted of the following Members:

Chairmen: Miss Anne Begg, † Frank Cook, Ann Winterton
Boswell, Mr. Tim (Daventry) (Con)
Browning, Angela (Tiverton and Honiton) (Con)
Bryant, Chris (Rhondda) (Lab)
Coffey, Ann (Stockport) (Lab)
Duddridge, James (Rochford and Southend, East) (Con)
Gibson, Dr. Ian (Norwich, North) (Lab)
Gidley, Sandra (Romsey) (LD)
Gwynne, Andrew (Denton and Reddish) (Lab)
Hillier, Meg (Hackney, South and Shoreditch) (Lab/Co-op)
Iddon, Dr. Brian (Bolton, South-East) (Lab)
Kidney, Mr. David (Stafford) (Lab)
Loughton, Tim (East Worthing and Shoreham) (Con)
McCarthy, Kerry (Bristol, East) (Lab)
Moon, Mrs. Madeleine (Bridgend) (Lab)
Naysmith, Dr. Doug (Bristol, North-West) (Lab/Co-op)
Pugh, Dr. John (Southport) (LD)
Rosindell, Andrew (Romford) (Con)
Walker, Mr. Charles (Broxbourne) (Con)
Ward, Claire (Lord Commissioner of Her Majesty's Treasury)
Williams, Hywel (Caernarfon) (PC)
Winterton, Ms Rosie (Minister of State, Department of Health)
John Benger, Committee Clerk
† attended the Committee

Public Bill Committee

Tuesday 15 May 2007


[Frank Cook in the Chair]

Mental Health Bill [Lords]

Schedule 6

Mental Capacity Act 2005: New Schedule A1
4.30 pm
Angela Browning (Tiverton and Honiton) (Con): I beg to move amendment No. 11, in schedule 6, page 79, line 9, at end insert—
‘(3) Where the managing authority deprives P of his liberty by detaining him as mentioned in paragraph 1(2), the appropriate NHS body or local authority which has authorised the detention shall make arrangements for the provision of the accommodation with care or treatment, and it shall be free of charge.’.
We come now to the question of charges and the Government’s provision to amend the Mental Capacity Act 2005. The issue was debated in another place, but the Government rejected its proposals, so I make no apology for reintroducing it in Committee.
There are clear differences in the treatment of patients deprived of their liberty under the Mental Capacity Act and that applied to those deprived of their liberty under the Mental Health Act 1983. In the previous sitting, I alluded to the fact that I hope that the Minister will give some clarification regarding those patients who drift, as it were, between one piece of legislation and the other—we have not as yet had such clarification.
There are costs associated with the treatment of patients whose liberty has been withdrawn under the Mental Capacity Act. Accommodation is free for a person who is sectioned under the Mental Health Act—their liberty has been taken from them so that they can be treated—but the Government propose to charge for the accommodation and care received by those who have their liberty deprived them under the Mental Capacity Act. A person detained under section 3 of the Mental Health Act would find, on discharge, that their after care was free, whereas the Government propose that under the Mental Capacity Act, after care will be subject to a charge.
Equally, the appeals process will treat differently two groups of people who have been deprived of their liberty. For those detained under the Mental Health Act, the appeals process will be free, whereas there will be a charge connected to the appeals process to the Court of Protection under the Mental Capacity Act. We are seeing the development not only of an unequal footing, but of a clear disadvantage, particularly on charging, for those patients whose liberty is removed under the Mental Capacity Act.
The Government did not accept that argument in the Lords, so I am asking the Minister to look at the matter again.
Chris Bryant (Rhondda) (Lab): This is obviously an important issue. Will the hon. Lady comment on the situation of foreign nationals? I have friends who are consultant psychiatrists in London. They have told me that they regularly face foreign nationals with personality disorders whom they have to detain—they could not possibly allow such people to go free on the streets. They are not, however, British nationals. The consultants suspect that, sometimes, the relatives of foreign nationals with mental health problems come to London to dump them. That happens particularly in the case of people from African countries that do not have suitable mental health services. What does the hon. Lady think about charging in such a situation?
Angela Browning: We have clear rules about charging foreign nationals. It is a matter for the Government to determine health service policy, whether it is to do with physical or mental health. I have a lot of sympathy for people who are mentally ill. They often come to the attention of the appropriate authorities only after ending up on the streets. Anybody who is identified as having a serious illness is entitled to treatment—charging is a matter for the Government to decide. I would not preclude foreign nationals from receiving appropriate treatment whether they had come here of their own volition or been hoodwinked into coming here.
The legislation begins to identify and treat people differently, and to apply different sets of rules to people who, for their own good, have had their liberty removed. If people are sectioned under the existing Mental Health Act, everything is paid for, whereas those dealt with under the Mental Capacity Act are charged for their care. The danger for the Minister is that once the measures are operational and such things become apparent, relatives, carers and others might try to encourage patients down the Mental Health Act route because of the financial consequences for them and possibly even for those associated with them.
Mr. Tim Boswell (Daventry) (Con): Does my hon. Friend agree that if the circumstances are broadly similar and patients are receiving the same regime, whether formally in a hospital or otherwise, and if the essential difference between them is that some are detained under the Mental Health Act and some under the rather more comprehensive provisions of the Mental Capacity Act—if there is no other difference except their in statutory detention—it is a prima facie case of discrimination under the European convention, because the public authorities will be delivering a service partially between one case and another?
Angela Browning: My hon. Friend is right. The purpose of the amendment tabled by my hon. Friends on both ends of the Bench is to establish what happens to a person deprived of liberty, particularly in a care home. It is a slightly different dimension from the Mental Health Act, because we are now considering not just hospitalisation but another kind of accommodation—care homes of one sort and another.
In all other cases where a person is detained, the charges are paid, but if someone is detained in a care home or nursing home, suddenly they are compared not to people detained under the Mental Health Act but to other people resident in care homes and nursing homes, who may well be there as a result of their decision, or that of their carers or relatives, that it is in their best interests. They might be self-funded, paid for by the local authority or a combination of the two. I suggest to the Minister that that is not a comparison for her to make, because such people are a separate group from those whose liberty is denied them for their own good but under the auspices of the Mental Capacity Act.
Although we agree with the proposal, we think that it is unfair to expect people to pay once an authorisation to deprive them of their liberty has been granted. It will put them at a disadvantage relative to all others detained elsewhere, usually in hospitals. I think that the Minister has been looking through the wrong end of the telescope in opposing the amendment. I realise that it has big resource implications; of course it does.
The Minister of State, Department of Health (Ms Rosie Winterton) indicated assent.
Angela Browning: The Minister is nodding. I hope to come to resources later in a little more detail, because she has flagged up her concern, but the fact that she is concerned about resources is no reason for her not to do the right and just thing. It is clearly right and just to the group of people described in the amendment for her to reconsider the issue. Otherwise, the consequence, perhaps unexpected, will be that over time, the Mental Capacity Act will be used only in certain circumstances, and that it will not be as effective, because people will opt for the Mental Health Act. That would be quite the wrong effect, and contrary to what she is trying to do in identifying how she will deal with the Bournewood determination in the European Court.
Ms Winterton: As the hon. Lady said, the amendment seeks to provide free accommodation, care and treatment for all people deprived of liberty under the Mental Capacity Act 2005. I would like to challenge what she said about people choosing between the Mental Health Act 1983 and the Mental Capacity Act because there are obvious differences between the two. The criteria under the Mental Health Act are that an individual has a mental disorder of a degree or nature that they need to be in hospital, that they are a risk either to themselves or others and that appropriate medical treatment is available for their mental disorder. That is a very clear set of criteria. For people to be detained under the Mental Health Act, there must be a clinical judgment that all those criteria are met. One cannot go along and say, “I fancy being detained under the Mental Health Act.” One has to meet the strict criteria.
In the Mental Capacity Act, we are talking about an individual with a mental disorder who does not have the capacity to consent, and it is in their own best interests to be deprived of liberty; they are not a danger to others. We mentioned a number of such incidents this morning. Therefore, it is not a question of choosing between one of the two in a pick-and-mix approach. It is about meeting the criteria.
Let us take the situation of a person who is being deprived of their liberty and is in a hospital setting. That person might have advanced dementia. Their relatives might be asked not to take that individual outside the ward because they could become disorientated and distressed. If that was felt to be a deprivation of liberty, that person would be assessed. Of course, they are in a hospital setting in which the care and stay is free. Therefore, what we are talking about is the cost of personal care in care homes. The people to whom the new safeguards will apply in terms of an authorisation for the deprivation of liberty will largely be those with severe dementia or similar problems. Many of them will be living in a residential care setting. Any financial contribution that they may make towards the cost of their care is determined by the national policy on means testing. Since 1948, health care has been provided free in England and Wales and social care is mean-tested. Nothing in those new safeguards calls into question those fundamental principles.
Obviously, safeguards will add new protections for the human rights of those people and independent checks will ensure that it is in their best interest to be deprived of their liberty. There will be new rights of challenge for them and their family if they disagree with decisions. Giving people new rights and protections is not a reason to change the arrangements that apply to funding, health and social care.
Again, I must stress that if a person was in a care home and subject to a standard authorisation to deprive them of liberty, it could only be because an independent assessment had concluded that it was necessary and in their own best interests to keep them safe. We do not think that that should lead to changes in the way that their care is commissioned and funded. In many ways, the care regime for such a person is likely to be the same as that for others in the care home with a similar condition. There will be restrictions for the person’s own protection, but that does not mean that their whole care package should suddenly be free of charge.
I shall give an example of an individual called Mary, who has been living in a care home for a number of years. She has considerable means and is paying for her care. She chose the home herself. She was able to go out regularly and enjoyed using all the shared facilities of the home and garden. Mary suffers from dementia and, over time, her behaviour has become extremely disturbed in a way that puts her safety at risk, both when she goes out and when she is in the home. Her family want her to remain in the familiar environment of the care home as long as possible, but it has become necessary to increase restrictions to keep her safe. Eventually, the care home decides that all of the restrictions may add up to a deprivation of liberty and seeks authorisation, which is granted. However, given that those restrictions have been granted in Mary’s best interests, there is no reason for there to be a change in how her care is funded.
4.45 pm
We must consider the views of residents in circumstances when care for another resident suddenly becomes free because restrictions have been put in place for that person’s best interests, but their care does not. Under the amendment, Mary would immediately cease to pay for her care. That does not seem logical or fair to other residents. It would create unacceptable inequities between those care home residents who are deprived of liberty and those who are not.
Let us consider Ruth and Jean, two ladies in their 80s who are both living alone. Ruth develops dementia and, after a time, can no longer look after herself. Carers are arranged, but she refuses to have them in the house. Things come to a head when she is found in the road, late on a winter’s night, unwell and in her nightclothes—something that we know can occur. An ambulance is called. When she has recovered enough, a placement is arranged in a care home. That move is supported by her daughter, but disputed by her son who wants her to go back home. Initially, Ruth is extremely unsettled in the care home and her behaviour is very disturbed. Taking account of all the circumstances, including the restrictions needed to keep her safe, the care home applies for authorisation to deprive her of her liberty, and that is granted.
Jean, meanwhile, suffers a major stroke. After a period of rehabilitation, she is not well enough to manage at home on her own. She is not able to make the decision herself and her family, with great regret, agree that it would be best to move her to a care home. If the amendment were accepted, Ruth’s care would be free, but Jean would have to pay for her care. That would be unfair.
The decisions in such difficult cases are about whether it is necessary for a person to be deprived of liberty and whether that should be based purely on the genuine care and treatment needs of the person concerned. The amendment would risk introducing financial considerations into the equation. If we are talking about opting for different scenarios, it would almost be better for the person to reach a situation in which they were being deprived of their liberty because, under the amendment, their care would then become free. That perverse incentive would arise from the amendment.
The amendment would also place a duty on the NHS body or local authority that had authorised deprivation of liberty to make arrangements for the provision of the relevant accommodation. The supervisory body might also be involved in commissioning care arrangements, but that would not always be so—for example, it would not be involved if a private arrangement had been made between a family and the care home.
There are some genuine problems with the approach that is being proposed. We need to ensure that there are safeguards in provision of care that requires restrictions. Treatment is not covered. The hon. Lady’s proposals would introduce what is tantamount to an incentive for people to be deprived of their liberty, because that would be the cheaper option. They could also create distinctions between, for example, two care home residents, both of whom are receiving good care and attention, by allowing only one to receive free care. For that reason I ask the hon. Lady to withdraw her amendment.
Angela Browning: I do not really buy the Minister’s arguments and I increasingly feel that those arguments are resource driven. Her own Department’s documentation, in describing such people, refers to them as
“a small group of people who need to be kept in a hospital or a care home with a lot of controls on their freedom in order to protect them from harm.”
By definition, therefore, the Minister is contemplating a small, discrete group, and the resource implications consequently should not be prohibitive.
Detention and deprivation of liberty under the Mental Capacity Act are subject to article 5 of the European convention on human rights. Contravention of that article led to the Bournewood determination in the first place. Article 14 of the convention prohibits unjustified discrimination in the application of any of the other articles, including—of course—article 5, so there is not necessarily any difference between people detained under the Bournewood provisions and others in the same accommodation who are being looked after under, say, section 117 of the Mental Health Act. Both might lack capacity, be compliant, have a mental disorder or disability, need residential care, require high levels of care and be subject in their own interests to legislation, yet one would be charged and the other would not.
That point was made to the Government by the Joint Committee on Human Rights. In paragraph 91 of its communication to the Minister, it said:
“In our opinion, to charge someone for accommodation in which they are deprived of their liberty potentially engages civil rights and obligations and therefore the right to access to a court to determine those rights under Article 6 of the Convention. There is potential for discrimination for the purposes ofArticles 5 and 6 and Article 14, in that a person deprived of their liberty in their own best interests in a hospital will not be charged for the detention whereas a person deprived of their liberty in their own best interests in a care home will”.
I understand that the Government responded to that in the main simply by listing the current provisions, rather than by giving a substantive reply.
I am not a lawyer, let alone a human rights lawyer; there are others more knowledgeable than I who are. I am prepared to withdraw the amendment, but I must press the Minister to ask her officials to look again at the convention, and in particular the interaction between articles 5, 6 and 14. It seems to me that it is not only those of us who tabled the amendment who believe that there is unfairness and discrepancy.
Chris Bryant: The hon. Lady said that the problem is one of resources, so I presume that she would not be so irresponsible as to table an amendment whose cost implications she did not know. What does she think those cost implications would be?
Angela Browning: I tabled the amendment because of what is said in the Bill, and I want the Minister to explain how this group of people will be treated. I do not believe that there are huge resource implications. I repeat the words used by the Minister, which were that “a small group of people” will need to be detained under certain conditions. The hon. Gentleman is right that there are resource implications, but I would not have thought that they were so enormous overall that the Minister would need to turn down the request for the provisions to be included in the Bill. I am more concerned about whether the provision complies with the European convention, because if it does not we will have more test cases. That would be ironic, given that it was contravention of article 5 that led to the Bournewood judgment in the first place.
I will withdraw the amendment, but I ask the Minister to engage with her officials and hold any other audiences that need to be held to pursue the matter and get some clarity on how different parts of the convention overlap. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: No. 48, in schedule 6, page 88, line 1, leave out sub-paragraphs (2) and (3) and insert—
‘(2) The maximum authorisation period is the shorter of these periods—
(a) the period which, in the assessor’s opinion, would be the appropriate maximum period for the relevant person to be a detained resident under the standard authorisation that has been requested;
(b) 1 year, or such shorter period as may be prescribed in regulations.
(3) Regulations under sub-paragraph (2)(b)—
(a) need not provide for a shorter period to apply in relation to all standard authorisations;
(b) may provide for different periods to apply in relation to different kinds of standard authorisations.
(4) Before making regulations under sub-paragraph (2)(b) the Secretary of State must consult all of the following—
(a) each body required by regulations under paragraph 161 to monitor and report on the operation of this Schedule in relation to England;
(b) such other persons as the Secretary of State considers it appropriate to consult.
(5) Before making regulations under sub-paragraph (2)(b) the National Assembly for Wales must consult all of the following—
(a) each person or body directed under paragraph 162(2) to carry out any function of the Assembly of monitoring and reporting on the operation of this Schedule in relation to Wales;
(b) such other persons as the Assembly considers it appropriate to consult.’.—[Ms Winterton.]
Angela Browning: I beg to move amendment No. 72, in schedule 6, page 88, line 23, at end insert—
‘( ) The relevant person, when they are consulted by the best interests assessor under paragraph 4(7) of the Mental Capacity Act 2005, has the right to the support of an appointed Independent Mental Capacity Advocate during the assessment process.’.
The amendment deals with independent advocacy, which we have touched upon briefly. The Minister said she would bring back proposals in the light of discussions in another place, where the Minister there said that the Government wanted to provide tailored advocacy. I can think of nothing more appropriate to tailored advocacy than the requirement in the amendment.
We believe that it is very important that the relevant person, when they are consulted by the best interests assessor under section 4(7) of the Mental Capacity Act, has the right to the support of an appointed, independent mental capacity advocate during the assessment process. The relevant person should have that access if they need it. Not all will need it, but the Bill should provide a facility for an independent advocate to be part of the decision making right at the beginning. I am not saying that it is needed exclusively at the beginning; there are other points at which independent advocacy is needed throughout the process of implementing that part of the 2005 Act, as amended.
Advocacy is important—it is the key to promoting the rights and needs of patients deprived of their liberty. When the Mental Capacity Bill was before the House we had a lot of detailed discussion about advocacy being important, not least for some patients in communicating their views. It is sometimes important also for the person who is trying to assist the patient, whether they are a professional, a carer or someone who has the right under the 2005 Act to represent the patient’s views. They would all benefit from the help of an independent advocate. A person lacking the capacity to consent to their care and treatment is likely to need support to express their views, and there could be other communication complications that require expertise.
One of our worries when the 2005 Act went through was that if there was insufficient advocacy—if it was not provided in a timely fashion and the advocate was not able to assist and intervene—decisions would be made without the person’s view being properly understood. That is important, as is the right to support during the assessment process.
5 pm
The purpose of the amendment is to ask the Minister yet again what the Government’s intention is for independent advocacy, which the Making Decisions Alliance is already on record as supporting. Independent advocacy is also supported by the Disability Rights Commission, which stated
“Without rights to independent advocacy access to such a vital service will remain a postcode lottery and at the discretion of mental health professionals. Without such rights the Bill will not, in our view, provide effective protection for the human rights of mental health service users in situations where they risk being deprived of their liberty... Advocacy forms a vital safeguard against the improper use of power against a person denied their liberty.”
That statement could apply to many parts of the Bill. However, it is particularly important here because we believe that a person’s treatment will benefit from access to independent advocacy. It could prevent much misunderstanding during their treatment and management. Although I am well aware of the resource implications of early intervention and early access to independent advocacy, it could in the long run save money and prevent wrong decisions from being made.
Ms Winterton: I certainly sympathise with the aims of the amendment, but I hope that, when I explain more about the best interests assessor, the hon. Lady will accept that the aims of the amendment are covered by the safeguards that we are introducing.
The safeguards that we are adding to the Mental Capacity Act 2005 will introduce someone whose only role in the process is to establish and recommend what is in the best interests of the person concerned. That will be the role of the best interests assessor, who will be independent of everyone else in the process and who will act in the best interests of the individual. It will be the job and statutory duty of the best interests assessor to involve the person as far as possible and to take account of their past and present wishes, feelings, beliefs and values. The independent best interests assessor will need to do all they can to involve the person and find out what their views and wishes are, and the assessor should have the competence and skills to do that. Of course, that is a challenge and if the best interests assessor feels that an advocate would help with the process, they can ask for one to be appointed. However, it is the job of the best interests assessor to ensure that they know the views of the individual so that they can make the assessment in an independent way.
Mr. Boswell: I am grateful to the Minister for assisting the Committee as we look at some sensitive matters. Would she agree that this paragon—the best interests assessor—should have a duty not only to consider the wishes and previously expressed views and values of the patient, but to make their own judgment? That might be contrary to previously expressed wishes if they were felt not to be in the best interests of the person. If that is the case, can the Minister assure the Committee that the paragons, as I call them, will be sufficiently trained and have the robustness to make the right decision? Of course, they will not always get it right, but we would like to feel that they will address the matter in a well informed way. My hon. Friend the Member for Tiverton and Honiton made the point, to which the Minister has partially replied, that it might well be sensible for them to take a second opinion from an independent assessor, if that is helpful to the process.
Ms Winterton: The best interests assessor is an independent assessor; that is the point of having them. If necessary, they could say that it would be helpful to appoint an advocate—although they would not do the appointing as that would be done by the PCT or local authority. It is the job of the best interests assessor to try to ascertain the wishes of the individual. The Mental Capacity Act code of guidance gives extensive guidance on the practical issue of communicating with people who may lack capacity. It is important that, in many cases, the assessor involves others who are perhaps used to communicating with the person. That might be the family or carers who have established a relationship of trust; or they may need to involve specialist interpreters, signers or, if relevant, advocates. We are making it clear that the independent assessor should follow that route. The support of an independent mental health advocate as well would not be necessary in all circumstances, except for the real circumstances of there being no one appropriate among friends or family to consult, which we all refer back to in the Mental Capacity Act.
Our problem with the amendment is the possibility of the IMHA and the best interests assessor both seeking the input of the person concerned and both speaking to family, friends and carers, which would not only be cumbersome but also quite confusing for the person and the family. Frankly, it might also be quite intrusive and heavy-handed and, because of the possible confusion, could cause unnecessary distress and anxiety, which I know the hon. Lady would not want to see. I am sure that the amendment is probing and designed to explore the role of the independent assessor.
Angela Browning: Who would the Minister imagine to be the independent assessor? Is it most likely to be a social worker?
Ms Winterton: Yes. I hope that with those reassurances the hon. Lady will withdraw her amendment.
Angela Browning: I have listened carefully to the Minister’s answer. I perked up right at the beginning when she expressed some sympathy, but she cooled off. I felt dashed at the end, because she was not warming to our proposal.
There is a practical problem. Not all social workers in the role of independent assessor would, for example, be specialists in non-verbal communications. An IMHA would then be needed, because hopefully they would have that sort of specialism. Specialists are needed to assist people with non-verbal communication—not just those without speech because of a physical disability, but particularly those who are poor at communicating because they have a communication disorder, for example.
Mr. Boswell: Does my hon. Friend agree that an important competence for the independent assessor should be the ability to know when they are getting out of their depth? They need to know when to call in an expert, either to assist with communication or because of some other aspect of the best interest test that they might need to consider.
Angela Browning: Indeed, and although I hope that that would not be the norm, one can envisage an advocate not being employed to support the person to communicate. In practice, the best interests assessor might rely quite heavily on information from family members or carers, who may be experts in communicating with the person. That often happens and would not be a problem. However, there are occasionally other cases. I recall service users giving evidence to the Mental Capacity Bill scrutiny Committee almost making a unilateral declaration of independence of mum and dad and highlighting the possibility of circumstances in which mum and dad are not advocating or proposing what the person concerned would like to be known. I suggest that those are a minority of cases rather than the norm, but the legislation needs to safeguard against such unintended consequences. However, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Ms Winterton: I beg to move amendment No. 49, in schedule 6, page 91, line 31, leave out from ‘right’ to end of line 32 and insert
‘to make an application to the court to exercise its jurisdiction under section 21A;’.
The Chairman: With this it will be convenient to discuss Government amendments Nos. 51 and 52.
Ms Winterton: The amendments change the wording used to refer to application to the Court of Protection. They are purely technical and do not in any way alter the rights of the person concerned, or of that person’s representative, to make applications to the Court of Protection about deprivation of liberty. Their purpose is to ensure that references to access to the court are completely accurate. The correct reference is to a right to make an application that the court exercise its jurisdiction under section 21A of the 2005 Act, rather than to the right to make an application under section 21A. The subject matter is very technical. I hope that the Committee will support the amendments.
Amendment agreed to.
Ms Winterton: I beg to move amendment No. 50, in schedule 6, page 94, line 32, at end insert—
‘(aa) the person to whom the request relates;’.
The amendment would ensure that the person concerned was informed if a request was made to assess whether they were being unlawfully deprived of their liberty. We expect such situations to arise only very rarely. If a person such as a family member believed that their relative’s liberty was being removed unlawfully, they should draw that to the attention of the hospital or care home managers and ask them either to apply for an authorisation or end the deprivation of liberty. If the managers did not take action, the third party could apply to the supervisory body to commission an assessment of whether there was deprivation. If the outcome was that the deprivation was unauthorised, the full assessment procedure was immediately triggered as if the managers had applied for an authorisation.
The amendment requires the person concerned to be informed by the supervisory body that a request has been made to assess whether there is deprivation of liberty, to be informed of whether an assessor has been appointed, and to know the name of the assessor and the outcome of the assessment. In most cases, the request would be made by a family member or friend, who would be able to tell the person concerned. The amendment is simply for completeness. It will provide an important protection and I hope that it will be accepted.
Mr. Boswell: It is self-evident, I think, that the amendment more or less covers the population of people who might have an interest in the matter and is designed to ensure the issuance of a formal notice to the person concerned. If that person had others acting for them, such as an attorney under the Mental Capacity Act, would the notification to that person be available to the others who were acting on their behalf and how would it reach them? Has the procedure really been as comprehensively tied up as I am sure both the Minister and I would wish?
Ms Winterton: That is a very good question, to which I am awaiting the answer. If, for example, the Court of Protection appointee was looking after the care of the individual and taking decisions, I suspect it would be right for them to be informed. If, however, the individual merely had a financial authorisation from the Court of Protection, notification might not be appropriate. I suspect that it might be good practice, but individuals should make sure that they were not breaching confidences. We will address it in the code of practice, particularly now that it has been so carefully drawn to our attention.
5.15 pm
Ms Winterton: I am helpfully informed that notification of the attorneys and deputies is decision-specific, so I was right on that. So the answer is: it depends. We will explore that in the code of practice.
Amendment agreed to.
Amendments made: No. 51, in schedule 6, page 97, line 34, leave out from ‘right’ to end of line 35 and insert
‘to make an application to the court to exercise its jurisdiction under section 21A.’.
No. 52, in schedule 6, page 116, line 33, after ‘court’, insert ‘to exercise its jurisdiction’.—[Ms Winterton.]
Angela Browning: I beg to move amendment No. 12, in schedule 6, page 116, line 34, at end insert—
‘Part 11A
‘serious medical treatment

Provision of second medical opinions

161 (1) This paragraph applies to a person (P) who is deprived of liberty in accordance with this schedule if an NHS body is proposing to provide, or secure the provision of, serious medical treatment within section 37(6) to him.
(2) P shall not be given the treatment unless a registered medical practitioner (other than the medical practitioner in charge of the care of the patient) has certified in writing that the patient is not capable of understanding the nature, purpose and likely effects of that treatment but that it is in the best interests of the patient in accordance with this Act that the treatment be given.
(3) Before giving a certificate under sub-paragraph (b) the registered medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient’s medical treatment, and of those persons one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner.’.
Although it comes late in the day in the consideration of the Bill, this is a very important amendment, and I mean that seriously. I know that Labour Members have their minds on other matters, but it merits some time.
Ms Winterton: No, we are rapt.
Angela Browning: I am grateful. The amendment is about the provision for a second medical opinion on the treatment of serious medical conditions. I think it would be helpful if I began by clarifying what we mean by serious medical treatment. In the context of the relevant group of patients, we obviously think of electroconvulsive therapy. We discussed ECT earlier in the Committee, and it is a subject that immediately alerts people to the need for safeguards, but the term also includes major surgery, such as open heart surgery; certain types of chemotherapy or cancer surgery; major amputations; treatments that will result in permanent loss of hearing or sight; the withholding or withdrawing of certain types of treatment, and abortion or caesarean section, although not termination of pregnancy.
Those are all serious procedures, and one would hope that anybody detained under the Mental Capacity Act would also be provided with the right to a second opinion when any such procedure was being considered. Within the context of that Act there is very small group of people who are befriended and have support in decision making on those matters. That responsibility often rests with relatives or carers, but I believe that the vast majority of those patients will find that they are severely disadvantaged because they come within the scope of the Mental Capacity Act and that Act lacks the safeguard of a right to second opinion. I believe that they should have a right to a second medical opinion on such serious medical treatments.
Those treatments, including medication and ECT, should be approved by an independent clinician through a second-opinion procedure. Under the Mental Health Act 1983 there is a statutory second medical opinion procedure for medication beyond three months and for ECT, and it seems iniquitous that the same safeguards should not be given to people treated under the Bournewood provisions. I find it hard to believe that the Minister can justify that group of people not receiving the same protections.
The second-opinion doctor should be a specialist in the field of medicine proposed. I know that the Government believe that that is unnecessary, as the person’s representative or an IMHA advocate will be able to request a second opinion on serious medical treatment if they consider it necessary, but I do not think that that gives the surety that such people will be knowledgeable enough in that area of medicine to know when a second opinion should be sought. Whether they go out of their way to seek that second opinion will be pretty hit and miss if it is not in the Bill. They might not have the skills to recognise when a second opinion is needed.
We are considering some serious inequalities between a group of people treated under the Bournewood rules and the Mental Capacity Act and those subject both to the Mental Health Act and to what is sometimes normal medical practice in a serious situation. I hope that the Government will be amenable to considering those groups of people again. Before the Minister jumps up or the hon. Member for Rhondda asks me if I have costed my proposal, let me say that I do not think that there will be huge resource implications, but in the interests of the patient without the right to a second opinion—and of the medical staff taking responsibility for them in complex and serious situations—I ask the Minister seriously to consider accepting the amendment.
Mr. Boswell: I echo my hon. Friend’s remarks. These are serious matters in substance, and there are concerns about anomalies between the treatment of Mental Capacity Act or Bournewood patients and those detained under the Mental Health Act. I understand that it may not be possible to produce an identity of treatment, but I am sure that we all want safeguards in order to get as near to that as we can. I should like to add two points to the mix for the Minister to consider.
The first—I am not sure whether something was said about it while I was detained outside the Committee this morning—is the question of the status under the Human Rights Act 1998 of any resident of an independent care home. It is a matter of some concern in the wider context whether the protections of that Act are available as they would be to a resident of a public hospital.
The second point, which has only recently come to my attention—I am worried that another interpretation may even be possible—arises from the fact that the Government are considering corporate manslaughter legislation. One would like to feel that the safeguards of such legislation will be available to patients equally, whether they are detained under the Mental Health Act or the Mental Capacity Act—that is one test—and whether they are resident in a private sector care home or hospital, or in public provision.
Nobody is saying that we can produce an ideal and perfect solution, but it is important to reduce the anomalies to a bare minimum. It is also important to remember that such matters involve extremely serious decisions—by definition, life-or-death and related important decisions—and we owe it to those vulnerable people to ensure that they are treated properly and given all the rights available to their counterparts under the law.
Ms Winterton: I hope that I shall be able to give some reassurance. I understand the desire to ensure that all the proper safeguards are in place, but a deprivation of liberty authorisation deals only with the deprivation of liberty. It does not authorise any course of treatment. The provision of treatment to a person who lacks capacity to consent must be in accordance with the arrangements and safeguards in the Mental Capacity Act. The authorisation is entirely different; it is simply about the deprivation of liberty.
Where the primary reason for the deprivation of liberty is to allow treatment to take place, the benefits of treatment would be considered as part of the best interests assessment. That does not replace but is in addition to the requirement to comply with the Mental Capacity Act. We are talking about two entirely different things: deprivation of liberty and the provision of medical treatment, which reverts back to the Mental Capacity Act. For that reason, I urge the hon. Lady to withdraw the amendment.
Angela Browning: Will the Minister clarify the position regarding a second medical opinion being sought when serious medical treatment is being considered?
Ms Winterton: If a second medical opinion is required under the Mental Capacity Act, the requirement would come into effect at that time. However, that is to do with treatment issues under the Mental Capacity Act. Under the Mental Health Act, which is entirely different, a second medical opinion is sought, first, before admission to hospital and, secondly, if there is a compulsory treatment order concerning, say, medication. Treatment under the Mental Health Act is an entirely different issue. The Mental Capacity Act kicks in, as it were, in relation to treatment, but the schedule is about the deprivation of liberty that arises from Bournewood. The authorisation for such a deprivation is different—it does not bring about treatment.
Mr. Boswell: I think that the Minister is helping us. As I see it, the measure will effectively establish a defence for a clinician against an accusation of depriving a person of their liberty under Bournewood terms; it is about determining whether they have committed an offence by detaining somebody against their will, which is important.
The Minister then said that all of the safeguards available under the Mental Capacity Act will continue in relation to treatment, which I understand. However, if the distinction that she is making is complicated and only just intelligible to the Committee, it is important that clinicians are properly trained on the interaction of the two provisions and that their clinical decisions are carefully recorded in terms of what powers they are using and when. In a real world situation, the decision to detain and the decision to treat are not quite as discrete as they appear in the tidy minds of the draftsmen; they might be consecutive or contemporaneous.
Having spent some time briefing people on how the Mental Capacity Act works, I can see that there will be serious difficulties in explaining even to sophisticated clinicians exactly what the critical path of decision making would be. That is not to disagree with the Minister, because she has made a fair distinction. The distinction, however, needs to be conveyed in simple but sufficiently comprehensive terms to those who will be making the clinical decisions.
Ms Winterton: I certainly take on board the fact that we need to communicate simply and clearly. The hon. Gentleman referred to clinicians, but they might not be the people who decide on the deprivation of liberty. The measure is most likely to be used in respect of someone in a care home; it is not about medical treatment. We need to be clear that we are not necessarily talking about decisions that would be made by clinicians. With that, I hope that the hon. Lady withdraws the amendment.
Angela Browning: I have to say to the Minister that I would like to go away and study the matter and to come back on Thursday, but I do not have such an opportunity. I will go away and study and come back on Report because I am not totally convinced about the Minister praying in aid the Mental Capacity Act and the best interests provisions. I am not clear whether she is relying on the best interests measure in that Act to determine the issue. If that is the case, I have ongoing reservations. I think that the principle of a right to a second opinion should apply, whether or not best interests determine the decision on serious treatment. However, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That this schedule, as amended, be the Sixth schedule to the Bill.
5.30 pm
Angela Browning: I want to speak to schedule 6 because it is the principal part of the Bill that involves the Bournewood determination and the way in which the Minister intends to put it into legislation. In the debate on the amendments, I flagged up a very clear differentiation in treatment between people who are detained under the Mental Health Act and those detained under the Mental Capacity Act. That is not to say that I withdraw my support for the Minister in enshrining the Bournewood outcomes into the Mental Capacity Act rather than the Mental Health Act. We are all agreed on that, but as I said at the beginning, we need to get this right. The Minister’s rejection of some of the amendments tabled in this Committee and in the other place was clearly based on resource implications. We all understand that for the Government, those implications are material and have to be taken into account.
However, when the Minister considers how to implement the schedule I should like her to look again at the advice that she herself issued when the Bournewood judgment was published. The Department immediately sent out interim guidelines to PCTs, social services departments and so on. In that advice, the Minister flagged up something that I have been alluding to in our discussions of the amendments to schedule 6. We can see the differentiation very clearly. In the guidelines, the Minister alluded to the fact that there was a choice between detaining people under the Mental Health Act, which was all that the Government had at the time, or detaining people but not under the Mental Health Act. She alerted professionals in the field to the fact that
a significant increase in the use of the Mental Health Act will inevitably put considerable further pressure on local authority approved social workers, the availability of second opinion appointed doctors (SOADs)”—
whom we discussed this morning—
“and on the operation of Mental Health Review Tribunals (MHRT).”
I must say to the Minister that, when it comes to getting the response to the Bournewood judgment right and enshrining it in statute, I still have reservations that her concerns about resources and funding are influencing her to reject amendments that have been tabled not only in this Committee but in another place. I have no doubt that we will return to those on Report and in another place.
Question put and agreed to.
Schedule 6, as amended, agreed to.
The Chairman: I must make an announcement. Hon. Members are unquestionably sending text messages or responding to them. The Chairman’s Panel has specifically disapproved of such a practice. Therefore, I am appealing to all hon. Members on their honour to desist forthwith. If there is a need to send or respond to a text message, it can always be done outside the Room and outside my sight.
Schedule 7 agreed to.
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