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The noble Baroness said: Following what I believe was commonly considered an excellent debate on Monday, we return to detailed and important aspects of the Mental Health Bill. On Monday, Members of the Committee considered the purpose of mental health legislation. We had a long discussion on matters of principle. It was clear that, although we have deep differences of opinion about this legislation, there is commonality regarding the end that the Government and the Opposition seek; that is, legislation which is fair, transparent, and is trusted by those who are subject to it and those who have to implement it. One of the main reasons this amendment is tabled is to try to achieve that.
I remind the Committee of our discussion on Monday. The Bill, as it stands, has a very wide definition of mental disorder. We heard why, unlike any other jurisdiction in the world, the Government are unwilling to accept any exclusions to that. As we shall discuss in detail, there is a very wide definition of what appropriate treatment for mental health conditions should be. That is the context within which we need to consider this proposal. Before a person is subject to compulsory powers under Part 2 of the 1983 Act, it would impose an extra condition that the person has impaired decision-making ability. It is important to set out at the beginning precisely what is meant by impaired decision-making ability. We may hear many Members of the Committee talk about capacity and capacity tests. It is important to draw a distinction here. I am sure that Members of the Committee will understand this, but for the benefit of those who do not I should make clear that capacity tests—I refer to the one that we are perhaps most familiar with as we debated it at length when we discussed the Mental Capacity Act—are usually measures of a person’s cognitive ability; their ability to make a decision. However, Amendment No. 6 describes something different—impaired decision-making. A person may have the ability to reason and to make decisions, but by dint of their mental disorder those decisions may be unwise or impaired.
I will try to explain this with the example of an older man whom I knew who had dementia. One evening he told me, at considerable length, about a film he had watched. He described it as a good political exposition of the position of working-class people in America and how they had suffered in consequence of the economic policies pursued by the Reagan Government. It was a cogent and persuasive argument which made me rather want to run off to, say, the National Film Theatre to see this really heavy film. The problem was that the actual film he was talking about was a light piece of comedy which I think the Americans would describe as a “screwball comedy”. The person’s cognitive abilities and capacity
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I hope that example enables your Lordships to draw a distinction. Many mentally ill people are very intelligent and retain an ability to make complex decisions but their overall ability to make decisions—particularly about their treatment—may be impaired as a function of their disorder. That is why Amendment No. 6 is not talking about the test of a person’s capacity, as one would be under the Mental Capacity Act.
Why should we include such a provision in the Bill? As we said on Monday, many thousands of people who are mentally ill are subject to compulsory treatment. Yet many of them retain full decision-making capacity and an ability to make decisions about their treatment, including the refusal of treatment. It is an omission in the 1983 Act that they do not have the power to do so. Any other patient subject to other forms of medical treatment has such a power. Any other individual with capacity has the right to refuse medical treatment however ill-advised it may be, even to the point of refusing treatment that would sustain their life or would almost certainly bring about death. For centuries we have bracketed all mentally ill people as being unable to make those decisions, but it is not true.
In mental health, as in all other aspects of healthcare, there is a growing recognition that the involvement and compliance of patients in their treatment, and in maintaining their treatment regimes, rests on their ability to be part of the decision-making about it. It is therefore something of an anachronism to say that people who are subject to mental health treatment should not have that ability. It also causes clinicians problems.
There is another reason why we believe that this amendment is right at this time. It has been said by some of the small handful of psychiatrists who oppose the views of their royal college, and who are deeply supportive of the Government’s existing proposals in the Bill, that it would be impractical or impossible for them to implement an assessment or test of a person’s daily decision-making ability. I believe that that statement is wildly untrue. Not only professionals in the mental health system but many other professionals, such as policemen, social workers and those who work with prisoners who have mental disorders, make judgments on a daily basis about people’s capacity. They have a finely tuned sense of people’s capacity to understand, to retain information and to make decisions about their own care. That is part of good practice.
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Furthermore, it is becoming more common in mental health to use tests of capacity. That is one of the reasons why they have been used in Scotland. The test for significantly impaired decision-making is a feature of Scottish legislation. It is something that clinicians need to do before reaching decisions on compulsion and treatment. We have had the concept
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Why do we believe that it is important to include such provision in the legislation? If people have the right to have their decision-making ability taken into account, and therefore retain some decision-making capacity about their treatment, they will be more likely to present themselves for treatment in the first place and to comply with it once it is recommended for them. That probably also applies to people who have fluctuating capacity. It is well known that in many mental conditions a person’s capacity to make decisions changes. Clinicians have recognised and have had to deal with that fact for many years. Clinicians are not in the habit of making an assessment of a person on a particular day, assessing their capacity to make decisions at that moment and promptly ceasing all treatment at that point. They usually continue to monitor people over a period of time. They take into their decision-making their calculations on what someone’s ability to make decisions would be in the future.
It has been alleged that people on this side of the House are unnecessarily antipathetic to the use of compulsion, but it is not true. We accept that there always has been and always will be a need for some people to be treated under compulsion. However, many of us who served on the joint scrutiny committee spent a considerable time listening to service users. Anyone who did so could not fail to be moved, or at least to come away with knowledge of the extent to which compulsion affects patients. It is a frightening process to go through. Patients talked to us about being subject to compulsory treatment in crisis situations, but they also talked about the effect of being subject to compulsion on a more routine basis. They said that once you have been subject to compulsion, your ability to make decisions about anything, no matter how minor, can just go. Frustration and rage builds up in people when they have been put into a position where they are not permitted to make even small decisions which in any other circumstances would be deemed reasonable. That is not only a source of immense frustration but it leads in some cases, according to our witnesses, to violence and non-compliance with treatment.
I am grateful to the royal college, which has furnished us with research into the issue of impaired decision-making. The research was conducted by Professor Szmukler, dean of the Institute of Psychiatry at King’s College, and involved patients on medical wards at King’s College and 112 psychiatric patients at the Maudsley Hospital. He found similar percentages of patients with impaired capacity in both locations. He did not find a significant difference in the reliability of the capacity assessments that had been made.
There are two reasons to adopt the proposal in Amendment No. 6. From April 2008 practitioners will be forced to assess a person’s capacity because the Mental Capacity Act will come into force. They will have to decide, on a daily basis, whether those who present to them should be treated under the Mental
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The final reason why we should adopt the proposal is that it will force clinicians to focus on the issue of a person’s capacity. I am persuaded that causing them to do so will better enable them to identify the patients who do not recognise their own illness. I am thinking in particular of patients who experience hallucinations and believe they hear voices telling them to do things. Patients who undergo that sort of experience, who know that it is part of their illness and have a degree of decision-making capacity, often present themselves for treatment because they know that they are becoming ill. Patients who experience such conditions but do not recognise them, and whose decision-making ability is impaired, often do not. Sometimes such patients present the most serious risk.
Other provisions in the Bill extend compulsion. In the view of noble Lords on this side of the House, those measures are likely to make people fearful of approaching mental health services. I believe that this provision is an important safeguard. It is also an important discipline for practitioners which will require them to focus on the individual’s capacity to make decisions. It will help to bring about a state of good practice whereby those who retain full capacity to make decisions will be able to do so. That will increase overall take-up and lead to greater safety and security. I beg to move.
Earl Howe: With this amendment we have reached a watershed issue. The challenge to the Government is straightforward. They have to justify why a patient with cancer, provided that he has capacity, may validly refuse treatment for that cancer, but a patient with a mental disorder who retains full capacity may not validly refuse treatment for the mental disorder, even though he may still validly refuse treatment for cancer. That is the first question that the Minister needs to address before any other.
This amendment moves us into a completely new environment for the care of the mentally ill. It is an environment that reflects today’s values, rather than the values of the past. I would characterise today’s values as those which seek to put the patient at the centre of decision-making about his or her care and which shift us consciously away from putting mental illness into a compartment that is quite separate from all other illness. That tendency is what we mean when we speak of discrimination against those who are mentally ill, and it is exactly that discrimination which, when promoted and practised, leads to the stigma to which many noble Lords referred powerfully in earlier exchanges.
I hope that all of us in this debate take as our starting point the firm conviction that compulsory powers should be used only as a last resort when people are very seriously ill. The idea that someone
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The Government’s central objection to a test of that kind is that there is no proven correlation between the severity of a condition and the loss of mental capacity. It is possible to imagine—one does not have to imagine it, because it happens—someone who poses a risk to themselves, but who also retains cognitive decision-making capacity. That is precisely why the noble Baroness was right to say, as I understood it, that a straightforward capacity test would not work in this context. A test of impaired decision-making, on the other hand, does not fall foul of that objection. The difference between capacity and the ability to take a balanced and rational decision about one’s own care may be difficult to assimilate, but it is significant. You can retain cognitive capacity and, indeed, decision-making capacity, about many aspects of daily living—going out shopping, taking the car out, taking the dog for a walk or whatever—while nevertheless being unable to take a balanced and rational decision about your own care and treatment. The distinction takes us away from pure cognitive ability into the realm of the emotions—the way in which one sees the world. The concept of mental capacity does not deal easily, if at all, with the emotions. Rather, it is concerned with the ability to understand, retain and communicate information. Very many people with mental illnesses have no difficulty doing that.
The British Psychological Society stated in its evidence to the joint scrutiny committee:
“We believe that the vast majority of patients currently detained under the Mental Health Act (1983) who have serious mental illnesses would quite clearly be demonstrably and significantly impaired in their decision making because of their mental disorder. We believe that psychologists and psychiatrists already make these judgements frequently in their clinical practice”.
If there are individuals who are seriously mentally ill and who pose a risk but retain, nevertheless, decision-making capacity about their treatment—there may not be many of them—what are we to say? How should they be dealt with? My view is that if the risk they pose is to themselves, the law and the state have no business interfering in their lives; and if the risk they pose is to others, they are or should be the province of the criminal law. People who have mental illnesses know what works best for them and what treatments they absolutely cannot tolerate. Why should the law allow for their wishes to be over-ridden? Why should those people not be allowed
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Those are the questions I posed when I began: they are the questions I again pose. The Minister should be in no doubt as to what we are saying with the amendment. We are saying that the law is out of date. We are saying that we have an opportunity to do something major to tackle the perennial and worsening problem of discrimination against the mentally ill. I hope that we can seize that opportunity.
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Baroness Murphy: First, the noble Lord, Lord Rix, sends his apologies to the Committee. He is quite unwell and has gone for some tests. He has asked me to give his apologies for not being able to speak to the amendment about which he felt passionately.
In adding my voice to the amendment—it is probably one of the three most important amendments we have tabled—I do not wish to repeat what the noble Earl, Lord Howe, and the noble Baroness, Lady Barker, have already said. They have been eloquent in their statements and I fully support their arguments. I wish to talk about the clinical realities of daily life as a psychiatrist and why I and my colleague professionals believe that it is time to introduce this extra criterion. I shall mention assessing capacity and decision-making because I have heard quite a lot of nonsense talked outside the Chamber about the process; it is really quite straightforward.
I also wish to mention the extraordinary impact on the culture of psychiatric practice which the current discriminatory legislation produces and, most importantly in this Chamber, why there are fears that this would lead to mentally disordered people being excluded from care and treatment. I believe that to be completely wrong. It is also extremely important in the other Chamber, whose Members receive many letters about people who it is felt might be excluded from care and treatment because of current proposals.
The small country north of the Border, to which we referred on Monday, has already adopted this measure in its new mental care and treatment Act 2003 with no adverse consequences at present on the care and treatment of mentally ill people in Scotland. I accept that there is only a year or so of experience on which to judge but so far there are no great disasters.
I do not believe that the amendment will change who is detained and who is compulsorily treated since by the time someone is sufficiently disturbed that they satisfy the criteria of detention—that is, that they have a disorder of a nature or degree which warrants detention in hospital and it is in the interests of their health and personal safety or for the protection of other people—the level of disturbance is such that in practice the majority of, if not all, patients who are assessed for a Section 2 order will have significantly impaired decision-making in relation to their care. That is why one is assessing them in the first place.
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In Section 3 a patient’s condition must be sufficiently severe to warrant continued detention in hospital. Almost always the patient has continued impaired judgment about the short and long-term outcomes of any care plan, which will bring him fully within the Act if this amendment were to apply. That is as true of people with seriously abnormal disturbed personality disorders, as of people with psychotic illnesses and profoundly disabling neurotic disorders.
We have already heard about Professor George Szmukler’s research at the Institute of Psychiatry, about the patients at King’s and at the Maudsley, where it is clear that 85 per cent currently detained for treatment—and the assessments were done after the immediate period of admission—did not have capacity at all. That is using the much higher test. If we lower the bar and put the test further down to impaired decision-making, almost everybody would be included.
I have often received letters from Members of the other place about difficult and challenging people, whose mental disorders give rise to a degree of mayhem in the community. Clearly, there are many such individuals. I think for example of people who cause a lot of concern, such as a young woman going around the community and perhaps setting fire to things, who is cutting herself, who is very disturbed and who ends up in A&E threatening to commit suicide. Such people do not get into hospital when they should. They seem to be in and out of casualty and causing great distress to their families and the community. Nobody can understand why they have not been admitted and detained.
The young male stalker is another typical case which causes serious concern among everyone in the community. For some reason such people seem to get assessed but not admitted often enough, and yet there are concerns about when that will flip over into a serious problem for the young woman. Then there are the people in the community with other sorts of personality disorders who come through the magistrates’ courts, such as persistent recidivist offenders with seriously disturbed personalities that are the bane of housing officers, who again seem to be constantly circling around.
It has been suggested to me that these people are extruded because they do not fit the criteria of the Act and that these people would be removed from the Act by the amendment. I am absolutely clear that that is not true. If you look at these people and assess their capacity on impaired decision-making, you would find that they would fall quite well inside the Act.
The current doctrine of suspension of all rights to autonomy survives as the sole distinguishing feature in discriminating patients; the rights of patients detained in a mental hospital separates them off from all other occasions when they are being offered medical care. That encourages psychiatrists and psychiatry teams to behave in not exactly an authoritarian fashion—in fact I often wish my colleagues were a little more interventionist and authoritarian—but rather in a culture
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This amendment would ensure that those rare people who have full decision-making powers could not be forced to have treatment. It would signal a change in relations between civilly detained patients and clinical services, which would be of immeasurable benefit in giving patients confidence in the system. Once again, I refer to the over-representation in our mental health system of black and minority-ethnic communities, especially young black men. The new clause would give them some small confidence that they would be treated on the same lines and receive the same sort of benefits as people going into hospital with any other illness.
I turn to the assessment of mental capacity and decision-making and congratulate the noble Baroness, Lady Barker, who gave a marvellous example of how it works. It is a regular function of health professionals in relation to consent to treatment for all illnesses, physical and mental. Capacity is often thought of as a matter of intellectual reasoning or cognitive powers in relation to a specific decision. Of course that is an important aspect, but sufficient cognitive capacity—if you like, megabytes of brain computing power—is a prerequisite for decision-making but by no means the only or, indeed, most important aspect of it.
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