Coroners and Justice Bill

My Lords, this is a very important Bill, which touches on a wide range of issues relevant to medicine. I shall mention some briefly. There are difficulties, particularly for those who practise psychiatry. My noble friend Lady Murphy could not take part in today’s debate. I am pleased to speak on her behalf as an honorary psychiatrist and will support her in Committee. First, the new system of accountability and the office of the Chief Coroner are very welcome and long overdue. Coroners have not always been keen to take up the benefits of the extensive training programmes that are now expected of the judicial classes, leaving some of them way behind in medical and legal knowledge and public expectations. The new system will, in time, cure that and create a better career structure for coroners. Other parts of the Bill are more worrying. One area of difficulty is the new rules on the partial defence of diminished responsibility. The problem of inquests on detained mental health patients is another. There is always an inherent mismatch between the methods of inquiry of law and medicine, which has led to some rather unseemly wrangling in court. Reform of the law should be directed at minimising the use of expert psychiatric evidence to determine a verdict, and at using expert opinion at the sentencing stage. The key problem here is the Government’s failure to accept the Law Commission’s recommendations to introduce two levels of homicide—tiers of murder—which, at a stroke, would have given the judiciary, rather than the Executive, the powers to sentence those who, at present, are all given a mandatory life sentence. Thus we will be stuck with highly unsatisfactory partial defences, such as diminished responsibility for murder only, but not for cases where the victim does not die. In those cases of attempted murder, a defendant can plead only the highly unsatisfactory "insanity", but not the more flexible "diminished responsibility". The phrase, ""an abnormality of mental functioning"," is an improvement on the current concept of an abnormality of mind, as it emphasises mental processes rather than a static condition. The new inclusion of the idea that the abnormality arose from a recognised medical condition is welcome, as it ensures that the defence must conform to accepted psychiatric diagnostic criteria and avoid the idiosyncratic diagnosis offered by some experts. There is however, concern that the word "medical" might rule out psychological evidence and conditions, but we will need to explore this more in Committee. The introduction of the notion of relative incapacity is consistent with civil law, for example as expressed in the Mental Capacity Act. In some ways, however, the description of the impairment that must be demonstrated harks back to the restrictiveness of the early 19th century and the so-called M’Naghten rules, which were highly dependent on the defendant’s intellectual grasp of the nature of the act and which largely ignore the power of delusions and emotions on behaviour. We will need to explore further in Committee what impact this narrowing of the defence will mean. It could mean that more mentally disturbed perpetrators of homicide end up with a prison, rather than a hospital, disposal: surely not what is intended. A defendant with severe schizophrenia might quite determinedly kill and with full self-control but on the basis of psychotic thinking. Such psychotic thinking could easily fall short of satisfying the criteria in Clause 44(1)(a) or (b). Thus a severely mentally ill man would be denied any psychiatric defence. It has been said that infanticide is a distinctive kind of human tragedy. Indeed it is, and it is one that has always generated enormous sympathy and understanding, but it is not so very different from other homicides in which health and mental health are involved. It seems extraordinary that the Bill proposes to retain this Victorian offence; it should surely be abolished. Cases that would otherwise come under that offence should be dealt with through the diminished responsibility provisions. The Butler committee recommended as much in 1975. If the killing was committed in the context of an abnormality of mind, it is covered by diminished responsibility. If it was not, a pseudo-psychiatric defence is not appropriate. Another problem is that the Bill withdraws the requirement for inquests into deaths in custody to be heard automatically before a jury. The noble Baroness, Lady Murphy, has extensive experience of inquiry panels into the deaths of detained patients in special hospitals for mentally disordered offenders and in NHS mental health units, and she will be greatly concerned about this part of the Bill. Again, I believe that there will be amendments to explore this further in Committee. The Bill provides that deaths in custody and detention will be heard before juries only if one of a limited set of circumstances is satisfied. This is not sufficient to ensure that such deaths are fully and independently investigated or to give the public the confidence that justice is being done. Deaths that occur in state detention are often complex and may require the detailed scrutiny of systems and procedures as well as of individual acts, and these cases are always best dealt with by juries. Clauses 49 and 50 deal with suicide. I welcome the Government’s efforts better to protect young and vulnerable people who may be encouraged by others to commit suicide. However, as other noble Lords, including the noble Baroness, Lady Jay, have stated, the Government’s reforms fail to address a wider problem with the law; it fails to distinguish between those who maliciously encourage suicide and those who compassionately assist the death of a terminally ill adult who is suffering but mentally competent. I look forward to debates on this issue in Committee. I turn briefly to one or two other areas that relate to medicine and medical research issues. I welcome the proposal for greater involvement of bereaved families and hope that the reforms will improve the processes for healthcare professionals and others who greatly contribute to the investigation. I support Clause 18, which would make it a statutory duty for doctors to report certain deaths. Clause 19, which creates a new role of medical examiners, is welcome. Like other noble Lords, however, I would like to see greater details about the skill, training, experience and other eligibility criteria for the appointment of a medical examiner and the nature of the independence and accountability of a medical examiner. Clause 20, which makes provisions for regulations about preparatory scrutiny and confirmation of medical certificates of causes of death, is welcome and may lead to fewer deaths requiring coroners post-mortem. There is, however, concern about the difficulty in integrating coroners’ post-mortems into research protocols. For some research areas—for example, sudden adult death—the need for tissue samples obtained at post-mortem for diagnosis and research will have to be discussed with relatives at a time that is sensitive for them. The ability in such circumstances for coroners to retain material for a post-mortem examination for a limited period to allow for appropriate discussions by potential research studies with families is important. Examples are the recent brain bank networks established by the Medical Research Council and others for storage of brain tissue for diagnosis and research. I hope that coroners’ offices do not impede such research. Finally, I welcome the Government’s decision to withdraw the information-sharing order-making power from the Bill. However, if they are planning a fresh public consultation in relation to information sharing, I hope that they will listen carefully to the medical and biomedical research communities and others so that any new proposals do not impede medical research, while preventing inappropriate use and disclosure of sensitive information.