Mental Health Bill [HL]

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2. This takes us back to another matter that has already been debated extensively in your Lordships’ House and in the other place. As your Lordships will recall, the House inserted a clause on impaired decision-making into the Bill, which was passed to the other place on 7 March. The proposal to include an impaired decision-making test in the criteria for detention has now been debated in the other place, which removed it from the Bill. The new clauses that were removed from the Bill in the other place would have introduced a fundamental change not only to the Bill but also to the approach taken in mental health legislation. They would have required the needs of patients and the risks posed by their mental disorder to be subordinated to their decision-making ability. The primary purpose of the Mental Health Act is to provide an effective, properly safeguarded mechanism by which clinicians can intervene to protect people from the risks that arise from mental disorder, not because they have made a judgment about the person’s ability to make informed decisions but because it is necessary to protect them or others from harm. Accepting those amendments would have meant abandoning one of the most fundamental objectives of the Act, namely that compulsory intervention should be based on need and risk. As my honourable friend the Member for Stafford pointed out in Committee in the other place, there has been no obvious change since previous Mental Health Acts in 1959 and 1983 that would require this long-standing principle to be changed. We cannot accept that it should be changed, yet that would have been the effect of this proposed new test. I know that some proponents of an impaired decision-making clause have said that the law and the state have no business interfering in the lives of patients who retain decision-making capacity, despite being seriously ill, if the risk they pose is only to themselves. Yet others have said, quite definitely, that if a person is at a serious risk of suicide their decision-making is necessarily impaired. I appreciate that some noble Lords and the British Psychological Society have said openly that what they see as the greater autonomy for patients that the test would have brought would have been right, even if it meant that some people killed themselves as a result. I respect the honesty and sincerity of those views, but do not agree. We are not alone. The Royal College of Nursing, for example, has said it could not support any legislation that could impede its members in their primary aim of preventing foreseeable harm. A number of leading clinicians have written to us expressing their concerns. The honourable Member for Southport, in Committee in the other place, was so concerned to establish the true intention of the impaired decision-making test that he asked a number of leading organisations whether someone could be judged a serious danger to themselves and others because they are mentally ill, yet still be possessed of unimpaired judgment. He reported that the answers he received flatly contradicted each other. For example, the Law Society and British Association of Social Workers said that it could not happen, while the British Medical Association and the British Psychological Society said it was entirely possible. On the basis of those and other answers that he received, he worried that, as legislators, he and his colleagues were not able to be clear about the effect that an impaired decision-making test would have. This is an important point that the proponents of the new test have to resolve before any responsible Government could accept it. The fact that there were so many different views about the effects of this test lends weight to the argument that it would have been a shot in the dark, fraught with the risk of unexpected and unintended consequences. We should remember that this proposal was not just about the risk of self-harm. Of course most people’s mental disorders, even when severe, pose no danger to anyone except themselves, but sometimes there is a risk to other people, unfortunately. No one has convinced us that because a person has a mental disorder which makes them prone to violence against other people it necessarily follows that they have impaired decision-making. A point made to my ministerial colleague, the then Minster of State for Health Services, Rosie Winterton, in a recent letter from a number of senior psychiatrists was that, "““while impaired thinking is a common feature of mental disorder, impairment of the ability to make treatment decisions specifically is not, of itself, a criterion for diagnosing mental disorder, or any particular mental disorder””." One of the signatories to that letter was Dr Kevin Murray, associate medical director of Broadmoor. If there were such a test in the relevant criteria and the clinicians could not be sure that the patient’s decision-making was significantly impaired, that would be that. The history of violence and assessment of future risk would have been irrelevant. If the patient could not have been persuaded to accept treatment voluntarily, the clinicians could have done nothing. Again, I acknowledge that not everyone sees that as a problem. The view has been expressed in debate that if a patient’s decision-making is unimpaired, any risk that they pose to other people should be a matter for the criminal justice system. The problem with that view is that if there is no possibility of compulsory clinical intervention to prevent the violence, with all its implications, an action would have to wait until after an offence had been committed. That does not seem to me to be a very preventive approach. I know that this matter has exercised noble Lords considerably. The Government have given it considerable attention and it has been fully debated in the other place, but I have to say that we are not persuaded to move on it. Moved, that the House do agree with the Commons in their Amendment No. 2.—(Lord Hunt of Kings Heath.)