Mental Health Bill [Lords]

Public Bill Committee, 26 April 2007.

Ann Winterton (Conservative, Congleton)

Welcome, everyone. You will notice that I am not Mr. Cook. He sends his apologies. I am afraid that you have me in the Chair all day.

Further written evidence to be reported to the House:

Clause 4

Rosie Winterton (Labour, Doncaster Central)

May I first welcome you tothe Chair, Miss Begg? It is a great pleasure to serve under you.

The Government are opposing clause 4. The clause goes to the heart of the issue of when people have to be detained in unfortunate circumstances. Obviously, we are referring to very vulnerable people whom we detain because of the risk that they pose to themselves or, in a small number of cases, to other people.

When I was looking through the Second Reading debate, it became clear that some of the Opposition’s arguments came from a libertarian approach. In effect, that means that the least compulsion is best and that people have a right to refuse treatment. That goes to the heart of the way one would approach physical health. However, I believe that there is a crucial difference when it comes to mental health in those circumstances. The effect of clause 4 is that no one may be detained under sections 2 or 3 of the Mental Health Act 1983 unless their ability to make decisions about their treatment is significantly impaired by their mental disorder. In other words, it superimposes on the Act an impaired decision-making test over and above what exists at the moment.

Tim Boswell (Conservative, Daventry)

The Minister is at least starting to explain very clearly the differences in the Committee. Would she not agree that the principles of autonomy and least interference that she set out are a good starting point and that any derogation from them—and there are many cases of that within the existing mental health legislation—should be precisely argued for and well justified? That should happen before any Member of the House even contemplates departing from them.

Rosie Winterton (Labour, Doncaster Central)

I absolutely agree. That is why we have set out the clear conditions for detaining someone that are in the legislation. It is exactly why we have two doctors, a mental health review tribunal and—and this is the crucial point—why the legislation is based on whether the person is a risk to themselves or to others. Those conditions form the basis of why we decide to take such a dramatic step for an individual. It is right that we protect people in those circumstances. As I have said, the clause goes beyond all the protections that we have at the moment and puts in place another test before somebody can be detained. We think that that test has no place in the Bill because it fundamentally changes the nature of the legislation. The reason for that is that patients’ needs and the risks posed by their mental disorders would no longer be what primarily determined intervention under the legislation. Instead, the patient’s decision-making ability would take priority in all cases except those of mentally disordered offenders. Opposition Members need to be absolutely clear that if the patient’s decision making were not impaired, the legislation would not be able to be used however much the patient would be at risk as a result.

Ann Coffey (Labour, Stockport)

Does my right hon. Friend the Minister believe that there is a further problem with the clause in that we already have the Mental Capacity Act 2005, which is very clear about what capacity is in determining the ability to make decisions? Introducing the term “significantly impaired” would add to the confusion about how capacity is defined—is significant impairment the same as a lack of capacity? That is somewhat problematic.

Rosie Winterton (Labour, Doncaster Central)

My hon. Friend has once again put her finger on it. Little is known about what impaired decision making or judgment would mean. We have the Mental Capacity Act, and I suggest that the clause would confuse impaired judgment and lack of capacity. We would be venturing down a track about which we know little and imposing confusion on the existing conditions.

Tim Boswell (Conservative, Daventry)

I am sorry that, as the Minister will well understand, the words “Mental Capacity Act” almost inevitably bring me to my feet. In the interests of clarification, and in the light of the intervention by the hon. Member for Stockport, does the Minister agree that the text that she seeks to delete is entirely within the spirit of the Mental Capacity Act, which is that different capacities are required for different decisions at different times? The test is not a general airy-fairy one about significant impairment; it is specifically about whether someone’s ability to make decisions about the provision of medical treatment is significantly impaired. That seems a precise test, not a general oneas the hon. Member for Stockport suggests.

Rosie Winterton (Labour, Doncaster Central)

If the hon. Gentleman is saying that the test would effectively be one of capacity, that is not what the proponents of deleting the clause are arguing. They are very clear that it is not a capacity test, which would be a much higher test. The hon. Gentleman is right that there are those who believe that it would be a capacity test, so the confusion gets even worse. We know what a capacity test is, but we do not know what an impaired judgment test is. The confusion that he highlights exists because we are clear about the fact that it will not be a capacity test.

Angela Browning (Conservative, Tiverton and Honiton)

I am sorry that the Minister was not there when we took evidence on Monday, because I raised the matter with the Royal College of Psychiatrists. I was a little concerned by some of the debate on Second Reading, but I was reassured by the response from the very people who would have to implement the provisions. In its written evidence to the Committee, the royal college states:

“The Act should limit the right to act against patients’ wishes to those patients whose ability to make decisions for themselves is impaired by their mental disorder.”

Psychiatrists seem to have a much clearer understanding of how they would interpret the clause than does the Minister.

Rosie Winterton (Labour, Doncaster Central)

It is possible to argue that during the course of assessing an individual and whether they should be detained, people consider that individual’s judgment and decision-making ability. I believe that that is certainly one of the procedures that a psychiatrist goes through. However, at the moment, for those people who do not have impaired judgment, what, in a sense, trumps that is whether that person is a risk to themselves or others. That goes absolutely to the heart of what happened on Second Reading. At the moment, although somebody may retain judgment, if the psychiatrist says that there is still a risk, it is the risk that is the trump. The clause would take that trump away.

I have had meetings with the Royal College of Psychiatrists and it is clear that there are people who follow the line that Opposition Members followed on Second Reading. That line is that, if somebody, having weighed up all the factors, has decided that they want to commit suicide, we should not stand in their way. The words that were used on Second Reading were that we should be willing to accept their verdict.

That issue relates to a question—why is mental health different from physical health? I know that that is an argument that some psychiatrists make. As legislators, we must decide whether we accept that argument. It has to be accepted that putting an impaired judgment test in the legislation would mean that there were people who would not be allowed to be treated under the legislation. That is because we would have to respect their opinion. I have had discussions with people from the Mental Health Alliance and they have said, “Actually, if someone’s life is so dreadful and they are homeless, have no friends, no job and they want to commit suicide, we should respect that”. That is the issue that is before us—it is straightforward.

Angela Browning (Conservative, Tiverton and Honiton)

That is exactly the point—the question of self-harm and the prevention of suicide—that I put to the Royal College of Psychiatrists in the evidence-taking session on Monday. I got a response from the RCP that was quite different to the position that the right hon. Lady is outlining today. Clearly, in a clinician’s professional judgment, if somebody was going to self-harm that would automatically raise the question of impaired judgment. The RCP seemed to have no difficulty at all in professionally saying that psychiatrists can distinguish the difference. After all, as lay people we are, in this Bill, relying on psychiatrists to make that decision as to whether judgment is impaired. Making that decision is what they do. The RCP did not accept the definition of impaired judgment that the right hon. Lady has just given to the Committee.

Rosie Winterton (Labour, Doncaster Central)

I would be interested to know, therefore, what the RCP accepts as the definition and whether it agrees with the psychiatrists who say—this is the question that the hon. Lady might have wanted to ask the RCP—that the judgment of people such as the examples that I have given of young women with a borderline personality disorder is not impaired. They have had a terrible time in their lives due to emotional, physical or sexual abuse and they go through crises, but during that time their symptoms—what is happening to them—are explained to them, along with what treatments are available and how they can be cared for. During that time, one could not say that the judgment of those people was impaired.

I draw the hon. Lady’s attention to the evidence from the British Psychological Society. It says:

“We recognise that this approach may mean that a very small number of people believed to be at risk of self-harm or suicide would be permitted to refuse treatment if their decision-making was not considered to be significantly impaired.”

That is the reality. The other side of the question is that, if Opposition Members want to put this impaired judgment test in, it must be because they feel that there are people who are detained who still have their judgment but are at risk of suicide or self-harm. Hon. Members on the Opposition Benches say that those people should not refuse treatment. They have to ask themselves who is being wrongly detained and needs such protection.

Tim Loughton (Conservative, East Worthing and Shoreham)

The Minister is aware from her Department’s reports that a large number of suicides among people who have undergone some form of mental health treatment happen soon after they are released from hospital. How might those people be released under a community treatment order? Does she think that they will be restrained or deterred from committing suicide when they are back in the community and left to their own devices?

Rosie Winterton (Labour, Doncaster Central)

Obviously, that point relates to an entirely different clause. The evidence is that in the first two weeks after somebody is released from detention, when medication is still in their body, the compulsory treatment order is not necessarily effective. We know, however, that there is the potential to save lives during the following two weeks—the hon. Member for Daventry is nodding—if the person has stopped taking medication. The last confidential inquiry into suicide featured 56 people who had stopped taking their medication during that time. Opposition Members are wrong to oppose the measure. It comes down to libertarian attitudes.

Ann Coffey (Labour, Stockport)

Is there not another difficulty? We are talking about not only people whose own safety is at risk, but people who may pose a risk to the public. If the phrase “significantly impaired” is included in the legislation, presumably somebody who is detained because it is felt that they are a risk to the public may launch a legal appeal against the meaning of “significant impairment”. If the court were to find in their favour, as might well happen, that might deter practitioners from sectioning people whom they might otherwise have sectioned, which could result in an overall increase in the risk to the public.

Rosie Winterton (Labour, Doncaster Central)

My hon. Friend has quite rightly highlighted a couple of other problems with the new test that the Opposition want psychiatrists to apply. First, the test would change the balance of the Bill by saying that the issue that it would address trumps the risk issue. Secondly, my hon. Friend is quite right to say that if somebody were to appeal to a tribunal, there would be fluctuations in judgment; I think that everyone accepts that, particularly with regard to the point that the hon. Member for Daventry made about capacity. We all know that capacity can change. The test is not a capacity test, but there is nevertheless a possibility that someone’s judgment may be impaired at one point and that they may then go before a tribunal during the assessment period. The tribunal would have to look at them on the day and decide whether their judgment was impaired. That possibility also trumps the risk issue.

The third point that my hon. Friend the Member for Stockport made is that it can be difficult to say that an individual is a risk only to themselves. As a result of somebody’s fears about themselves or their intense problems, it is not always completely clear to psychiatrists where the balance lies. My hon. Friend is absolutely right to point that out.

Charles Walker (Conservative, Broxbourne)

May I take the Minister back to her quote from the British Psychological Society, and ask her if it was in support of her argument?

Rosie Winterton (Labour, Doncaster Central)

No, it was not. The British Psychological Society probably says that we should go ahead and do it. It is saying that it recognises that this approach will mean that a very small number of people believed to be at risk of self-harm or suicide would be permitted to refuse treatment if their decision-making was not considered to be significantly impaired. It accepts the approach taken by Opposition Members, that there will be people who would go away and commit suicide.

Charles Walker (Conservative, Broxbourne)

For the sake of completeness, I will read into the record the next sentence of the quote from the British Psychological Society brief, which states:

“But we believe that there will be very few such cases and there will be many more cases where a person will avoid grossly inappropriate violations of their autonomy.”

Rosie Winterton (Labour, Doncaster Central)

Opposition Members have to decide whether they are prepared to accept that “very few cases” is okay. If that is what they are saying, that is fine. Therefore, they must be saying that at present people are being detained who they believe should not be detained and who should not be receiving the help that they get at the moment.

On Second Reading the hon. Member for Broxbourne said:

“Let us imagine what would be the outcome if we were to follow the advice offered in an article in The Daily Telegraph today. The article is entitled:

‘MPs should vote to save innocent lives’.

It is written by Philip Johnston, who writes:

‘If this Bill will save lives, then Parliament has a duty to support it.’”—[Official Report, 16 April 2007; Vol. 459, c. 118.]

Charles Walker (Conservative, Broxbourne)

Since the Minister seems to accept that this is a public order Bill, will she instruct a Home Office Minister to sit beside her and explain the public order aspects of the Bill to the Committee?

Rosie Winterton (Labour, Doncaster Central)

The hon. Gentleman is missing the point. He obviously believes that it is worth changing the legislation and including another test that must be gone through before someone can be detained, and accepting what that will mean. Okay, it is a small number of people, but do we really say, “Let’s not bother about that small number of people”? I find that extraordinary.

Tim Boswell (Conservative, Daventry)

I want briefly to share with the Committee two concerns that arise from these exchanges. The first relates to mental capacity; I do not want to muddy the waters, but it is arguable that asthat capacity is Act-specific and time-specific, the distinctions that the Minister makes between it and impairment eventually shave to a very narrow distinction, and I would like her to comment on that point.

My second concern is that she is talking about detention under the Mental Health Act, and again we need to be clear about the issue in the clause. If it is a matter of personal or public safety, it is arguable that detention should take place, but if treatment is not appropriate because there is no treatment, why does detention have to be under the Mental Health Act, any more than internment in times of warfare, for example, should be under that Act? We could legislate for it separately.

Rosie Winterton (Labour, Doncaster Central)

I want to make it clear to the hon. Gentleman that there are psychiatrists who say that they find the extra test confusing, because in order to be really clear it is necessary to use a capacity test. However, those who support the amendment claim that it is not a capacity test but a lower test. That is why we say that the thinking is muddled and confusing. There is honesty in saying, “Let us have a capacity test,” but it is claimed that this is not a capacity test because that would leave too many people out.

I suggest to the hon. Gentleman that he discuss with those who want to include the test how many of the people who are getting help at the moment they think do not need it, and why they do not go the whole hog and have a capacity test which is, as he has rightly pointed out, enshrined in law.

Hywel Williams (Plaid Cymru, Caernarfon)

The Minister has prayed in aid the British Psychological Society. Let me quote from its evidence to the scrutiny Committee about the very few patients who commit suicide or threaten to do so, and who appear unimpaired in their decision making. It says:

“We do not believe that these people should merely be ‘allowed to kill themselves’. We believe that these issues can best be addressed through the provision of appropriate consensual services. We think that all necessary services should be available, offered and assertively provided. Indeed, it is important to stress that the Mental Health Act does not prevent suicide. If it were implemented perfectly, it could not prevent all suicide.”

Rosie Winterton (Labour, Doncaster Central)

The hon. Gentleman needs to recognise that in considering the conditions of detention, we will talk about people who do not want treatment and will not consent to it. That is why they are to be put through the test. He is right in so far as we want people to access services at an early stage—before they become desperately ill—but the difficulty is that we are talking about those who do not want treatment. We have to take action to help them.

The British Psychological Society says that some people will be unable to get help. That takes us back to why we make a distinction between physical health and mental health. There is no denying that it is impossible to refuse treatment in respect of physical health. However, most people in our society would accept that the specific circumstances that we are considering now are different.

Charles Walker (Conservative, Broxbourne)

What would we do if we did not have the British Psychological Society to come up with statements for us to quote? Here is another one.

“The real problem arises from the Government’s wish to use mental health legislation to detain people on the basis of a prediction that they may commit an offence in the future but where they have not previously been convicted of such an offence.”

That is the real problem, Minister.

Rosie Winterton (Labour, Doncaster Central)

The hon. Gentleman is wrong.This measure does not apply to mentally disordered offenders. However, it is important to remember that it can be difficult to define the extent of the risk involved when somebody is as ill as the people we are discussing. Opposition Members need to be clear about what is being suggested. When considering mental health, we have also to be clear that in the most difficult circumstances we might have to decide whetherthere is—as the hon. Member for Caernarfon was saying—an obligation on society to intervene in order to help people who cannot, or in some cases will not, recognise that they need treatment for their own protection or that of other people.

As I have said, advocates of the impaired decision making test recognise that themselves. If they truly thought that mental and physical disorder should be treated indistinguishably, they would argue for a test based on legal capacity to consent, but this deliberately does not go that far.

Hywel Williams (Plaid Cymru, Caernarfon)

The Minister talks about the incapacity test as if it were a one-off, all encompassing test. However, someone could have the capacity to decide about the effects of a treatment or a medication and, perfectly reasonably, be against it. Depression,for example, is associated with feelings of lack of self-worth and unreasonable beliefs about self-worth. In those circumstances a clinician could take a decision about detention on the basis of that mental illness, rather than the person’s obvious capacity in certain circumstances to decide about a particular issue within the regime.

Chris Bryant (Labour, Rhondda)

That is the Government’s position.

Rosie Winterton (Labour, Doncaster Central)

Exactly, the problem is that someone might not have impaired judgment. The hon. Gentleman is arguing my case. There may be people who are extremely depressed but who retain judgment about their treatment. They know what the options are, what their problems are and that all these terrible things are happening to them. They have the judgment to know that the treatment could help, but they do not want to have it. I do not know whether the hon. Gentleman has decided to support clause 4—

Hywel Williams indicated dissent.

Rosie Winterton (Labour, Doncaster Central)

In that case I will not pursue it any further. Under that clause, that person would not be able to get treatment.

Tim Loughton (Conservative, East Worthing and Shoreham)

We are having an interesting debate about the clause, but can the Minister answer this question? If a person is in crisis and wishes to commit suicide, at that point their decision-making is clearly impaired and they would be subject to coercion under the provisions. There is a serious risk of suicide in such cases. In contrast, if a cancer patient decides that they do not wish to continue chemotherapy, even though there is a serious risk that the decision will hasten their death, they are not subject to any coercion. What is the difference?

Rosie Winterton (Labour, Doncaster Central)

That is exactly the argument that Opposition Members advanced on Second Reading. If they want to continue to do so, that it is fine. We believe that a distinction can be drawn between someone who refuses treatment for cancer and someone who has a mental disorder and wants to commit suicide or self- harm or who may be a risk to others. Although such a person might have not done anything, there may be a difficulty, and we would want to prevent such an outcome. Physical health is an issue; yes, as to physical health, people can refuse treatment.

What is before us today is a decision as to whether people who do not get the treatment they need have the “right” to commit suicide. The members of the Mental Health Alliance to whom I have spoken say that that right has to be respected, and that is what Opposition Members are saying. There will be people, as the British Psychological Society says, who will go away and do that. If Opposition Members are happy about that, it is for their conscience.

Angela Browning (Conservative, Tiverton and Honiton)

An analogy was drawn with a patient with terminal cancer, but there should be a difference in perspective here. Clearly someone who is terminally ill with cancer and has decided to stop chemotherapy or other forms of treatment has had to accept that a professional has said that the end is down the track. Very often their choice is not about whether to live or die, because unfortunately the outcome is already established, but about issues such as their quality of life for the next few weeks or months. The choice of such a person will be between undergoing treatment that makes them feel ill or accessing a final few weeks when they are compos mentis and able to do a few things. I am not 100 per cent. certain that there is a like-for-like comparison with regard to somebody who is contemplating suicide.

Rosie Winterton (Labour, Doncaster Central)

Quite. I thank the hon. Lady for making that point again. That is very good. I have always been surprised that she would go for such an argument, because I do not believe that that is where she would normally be coming from.

Tim Boswell (Conservative, Daventry)

Before the Minister relaxes unduly,I may say that once or twice she has slipped into suggesting that treatment would not be available for people whose judgment was impaired and who refused treatment; it would, of course, continue to be available, but it would not be compulsory. Will she say whether, as a general principle, if compulsory detention is required against the wishes of a patient with no impairment, or insufficient impairment, any action taken to detain would be in the best interests of the patient?

Rosie Winterton (Labour, Doncaster Central)

Absolutely. I would be surprised if the hon. Gentleman supported the kind of approach in question. [ Interruption. ] He is not listening. Of course, we want treatment to be available to the individual. However, the point is that they are saying that they do not want treatment, and that is where the decision has to be made. If the hon. Gentleman is thinking of supporting the clause, the idea could be that there is a kind of reassurance in justifying it by saying, “It is your right to commit suicide, but our conscience is okay because other treatment is there.” However, the issue is that such people do not want the treatment, which is why detention is being discussed.

I give the hon. Gentleman another reassurance: our suggestion that appropriate medical treatment must be available for detention is not about detaining people with no treatment, but detaining them with treatment, as opposed to not detaining them and their getting no treatment because they have refused it, and our saying, “It’s okay, it’s your decision. We respect your verdict.”

David Kidney (Labour, Stafford)

It must be most troubling for a psychiatrist to see a patient who appears to have the capacity to refuse treatment, but certainly has a mental illness. The psychiatrist may find it difficult to determine whether the mental illness is causing the refusal to take the treatment. Each time that we have legislated in modern times for such a situation, in 1959 and 1983, we have done so in favour of the psychiatrist being able to detain the person for compulsory treatment because of their mental illness. That is what the Minister is trying to uphold in this legislation. Does she agree that there has been no obvious change since 1959 or 1983 to overthrow that long-standing principle?

Rosie Winterton (Labour, Doncaster Central)

That is absolutely right. Opposition Members have to recognise that they would be introducing a new test that, by its nature, would have to exclude some people from being able to be detained for medical treatment.

Angela Browning (Conservative, Tiverton and Honiton)

We have started to talk about appropriate treatments and options for the patient, which are important. However, it is unfortunate that clause 4 comes before clause 5. If they were the other way around, the debate might be a bit better informed. We are putting the cart before the horse. What are the options? I would rather have explored the options with the Minister and found out what her understanding of treatability was before we discussed this clause.

Mr. Boswell rose—

Rosie Winterton (Labour, Doncaster Central)

I will now give way to the hon. Gentleman.

Tim Boswell (Conservative, Daventry)

I should like to return to our previous exchanges. If I heard the Minister right, she conceded the principle that the acts of the psychiatrist in recommending detention were in the best interests of the patient. If that is so—this is a seamless issue that is not divided in the clause—it also applies in cases where the psychiatrist may be concerned about the danger to others rather than to the patient. She is telling the Committee that that decision also has to be taken in the best interests of the patient, even if it overrides their will in the matter.

Rosie Winterton (Labour, Doncaster Central)

Exactly. That is why we have to consider, in terms of mental disorder, that there may be circumstances in which the psychiatrist thinks that there is a wider risk to society—not that the person has done something already, because this does not apply to mentally disordered offenders. If somebody has not committed an offence and the psychiatrist thinks that they might be a risk to themselves, it is difficult to make that judgment. That is why, when we think about wider society issues, there is a distinction between physical and mental disorder, except in some rare cases such as TB or infectious conditions, and society must take steps to say that somebody can be detained because of the threat that they pose to wider society. We must accept that in some exceptional circumstances, there are actions that we, as a society, decide to take for the greater good.

Angela Browning (Conservative, Tiverton and Honiton)

The point that the Minister made about the wider interests of society, and psychiatrists identifying among the group in question people who might go on to harm somebody else, is at the heart of the Bill. The pre-legislative scrutiny Committee spent a lot of time dealing with the point and took a lot of evidence on it. She will know that the ability of a psychiatrist to predict how a person will behaveand detain them, if they have no previous record, is virtually impossible. The statistics given by several eminent bodies range from 2,000 to 5,000 as the number of people who would have to be detained in order to identify just one potential person.

This is one of the most dangerous parts of the Bill. The Minister has now prayed in aid of the proposals the idea that somebody could predict a Michael Stone or somebody like him in future, but we know from the evidence that we took that that is impossible.

Rosie Winterton (Labour, Doncaster Central)

What is the hon. Lady suggesting? The argument is running down to what may lie at the heart of the approach of Opposition Members—a view that we should not detain anybody and that if nobody can predict behaviour, and people do not want treatment, we should not have any legislation at all. That is the logic of what she is saying. The point about the Mental Health Act is that we take that decision. It is true that we ask psychiatrists to say whether somebody is a danger to themselves or to other people. We want them to make that assessment; we do that already. If she is saying that we should not do that any more because we might lock up the wrong people—

Angela Browning (Conservative, Tiverton and Honiton)

No, I am not saying that.

Rosie Winterton (Labour, Doncaster Central)

Well, I do not understand what the hon. Lady is saying. If she is saying that is difficult to predict risk, I agree that that is true. Along with the Royal College of Psychiatrists and others, we continue to work on how to improve that risk assessment. That assessment is important. I do not understand why the hon. Lady is saying that, because we cannot predict risk well, perhaps all decisions are wrong. That is not the case.

Ann Coffey (Labour, Stockport)

Does this issue not go back to the clinical judgment of the psychiatrist concerned? The risk is assessed in the context of the judgment ofthe degree of mental disorder.

Rosie Winterton (Labour, Doncaster Central)

We need to keep making the point that the Bill is about the use of clinical discretion. At the moment, the basis of that discretion, along with all the other things, has to be whether the person is a risk to themselves or to other people. Opposition Members are saying, “Let us put another test in there and ensure that some of those receiving treatment now do not get it in the future.” It could not be plainer than that. As I said, there is an issue about whether we accept the libertarian argument and say that if they want to commit suicide, it is up to them. That might apply only to a few people, as the BPS says, but does that make it okay? Frankly, I do not think so.

Angela Browning (Conservative, Tiverton and Honiton)

The Minister referred to people who have no track record with mental health services and who have not been subject to treatment, or whoare being considered for detention for the first time. However, we have the criminal justice system as well. My hon. Friend the Member for Broxbourne was being a little tongue in cheek, I think, when he talked about having a Home Office Minister in the room, but we seem unable in this legislation to disaggregate those with capacity who are a danger to others and who, if they have committed a crime, should come under the criminal justice system.

Rosie Winterton (Labour, Doncaster Central)

First of all, suicide is not a crime. The hon. Lady needs to recognise that we are always trying in legislation to prevent offending. Let us imagine that an individual feels that somebody’s judgment is not impaired, but is at risk of offending. Her party’s approach would be to take action only when that person has offended. Frankly, that would create a real difficulty, because she is saying, “Do it when they have offended, not when they haven’t.”

James Duddridge (Conservative, Rochford and Southend East)

The Minister has referred a number of times to the intellectual argument about liberty. May I probe her own intellectual coherence? Her case for public protection is greater, which perhaps is why some Opposition Members believe that this is more of a public order Bill. However, her case for the protection of those with mental health problems is less compelling. If there were no murders and no harm was done to others—in other words, if there were no offences—and this was just about suicide and self-harm, would she still wish to amend the Bill in the proposed way?

Rosie Winterton (Labour, Doncaster Central)

Anything that stands in the wayof treating people is wrong. Any approach that Opposition Members support which says “There are people whom we will no longer treat, as we will put this extra test in.” It is wrong that they are proposing this test, which would mean that those who are suicidal or self-harming and have been through all the options for treatment, but whose judgment is not impaired, will not be allowed treatment. Opposition Members need to come clean and say, “We accept that that is fine”. If that is what they are saying, they must agree with the BPS: a small number of people would be allowed to commit suicide.

Ann Coffey (Labour, Stockport)

But are the Opposition not saying something else, to carry their arguments to the logical conclusion? Offenders should never be offered mental health services; they should be dealt with in the criminal justice system.

Rosie Winterton (Labour, Doncaster Central)

The real issue in what the Opposition are saying concerns somebody who is a risk to others and does not have impaired judgment. The clause covers people who are a risk to themselves and a riskto others, but not mentally disordered offenders. Presumably the people promoting the clause recognise that a mentally disordered offender who had been placed on a hospital order, but had gone to a tribunal and challenged it, saying, “I don’t have impaired judgment”, could not be detained. That is why mentally disordered offenders have been excluded. However, the people who were judged a risk to others, if they did not have impaired judgment, could not be detained.

Tim Loughton (Conservative, East Worthing and Shoreham)

What we are saying is that if a person is at serious risk of suicide, their decision-making is impaired, therefore the treatment would be invoked. Also, there would be more patients who could be detained earlier because psychiatrists would focus on their judgment, which is much more preventive. That is what we are saying. Given that the Minister is now focusing exclusively on self-harm rather than public safety, perhaps she can help us by explaining why she thinks suicide rates have been falling over recent years—for which she is always taking credit.

Rosie Winterton (Labour, Doncaster Central)

I do not quite understand. Is the hon. Gentleman saying that because of the judgment test there is now no risk to self or others in his proposals? He is saying that we could detain people earlier because they had impaired judgment, and we would not have to detain them on grounds of risk to themselves or others. So now we only have the impaired judgment case. Anybody who has impaired judgment is going to be detained even if they are a risk to themselves or a risk to others. That is what the hon. Gentleman has just said, because we would not have to take other factors into account. We could prevent the risk to self or others, because we would only have the impaired judgment test, but surely the hon. Gentleman is not suggesting that that is how we remove the risk to self or others? If he is talking about that, then the number of detentions would be massive. I find that a very curious argument.

Charles Walker (Conservative, Broxbourne)

To help frame the rest of the debate, will the Minister give her best estimate of how many violent offences the Bill will prevent if it goes forward as originally presented by the Government? How many homicides will it prevent? Of course those will have to be estimates, but I imagine that the evidence is there. How many suicides will the legislation prevent? The evidence must be around somewhere.

Rosie Winterton (Labour, Doncaster Central)

As I have said to the hon. Gentleman previously, we have a particular problem about suicide. Under the changes that the Opposition are attempting to make, it is not possible to allow somebody to have supervised community treatment. Our figures are quite precise about timing of medication and, as I said, the potential is for 56 people during that limited period to be under supervised community treatment, to continue taking medication and therefore not to commit suicide. I would ask the hon. Gentleman how many people he thinks that the impaired judgment test would mean would not get treatment, given that the British Psychological Society says that it would be a very small number. I would be interested to know what he thinks is an acceptably small number for people who he says do not need treatment.

Tim Loughton (Conservative, East Worthing and Shoreham)

The Minister is making sweeping assumptions, as usual. Where is her evidence that supervised community treatment orders would have been effective in preventing the suicide of those 56 people? It is entirely theoretical. There is no empirical evidence to suggest that they could have been effective in saving those people’s lives. It is bogus to suggest otherwise.

Rosie Winterton (Labour, Doncaster Central)

Obviously, that is a different area altogether, but the evidence is the national confidential inquiry into suicide. Each suicide is looked into very closely, and one can pick out specifically the non-compliance of those 56 people during the second two weeks, when they stopped taking medication and therefore became seriously ill again. It is quite wrong to say that you can always prevent that.

Tim Loughton (Conservative, East Worthing and Shoreham)

But that is what you have said.

Rosie Winterton (Labour, Doncaster Central)

No, it is not. If the hon. Gentleman reads the record, he will see that I have always said “potentially”—these are people whom we could help.I have never said that that means that the lives of56 more people could have been saved. That would be perfectly ridiculous.

Tim Loughton (Conservative, East Worthing and Shoreham)

That is entirely the implication of what you said.

Rosie Winterton (Labour, Doncaster Central)

It is not. I have said clearly that there is the potential there. The hon. Gentleman may reject that, but I suspect that hon. Members on this side of the House will want to know exactly how many people the Opposition are prepared to see not getting treatment if they vote for this clause.

John Pugh (Liberal Democrat, Southport)

The hon. Member for East Worthing and Shoreham has made his statement defending the amendment—and I think it quite a legitimate statement—that someone who is suicidal necessarily has impaired judgment. I think that that is more or less what he said. I understand that Earl Howe in the other place has said the converse: that someone is not necessarily mentally impaired if they are suicidal. Have we not hit on a fundamental difficulty here, namely, that people who support this amendment derive different consequences from it? Before going any further, ought we not to clarify its true intended consequences?

Rosie Winterton (Labour, Doncaster Central)

The hon. Gentleman has raised a valid point—one that I was trying to make earlier—which is that we do not know what the impaired decision-making test is. It is untested. There is no case law on it, even in Scotland. Those who say that the test should trump the risk to themselves or the risk to others are quite right. In the other place, the official Opposition spokesman, Earl Howe, argued the complete opposite to what the hon. Gentleman just said. He said that the law and the state had no business interfering in the lives of patients who retain decision-making capacity, despite being seriously mentally ill, if the risk that they pose is to themselves only. He went on to say that

“if the risk they pose is to others, they are or should be the province of the criminal law.”—[Official Report, House of Lords, 10 January 2007; Vol. 688, c. 233.]

However, that is fundamentally wrong. We feel very strongly that—

David Kidney (Labour, Stafford)

I have tabled an amendment to a later clause on the assessment of risk. Being at risk of committing suicide is not a criminal offence. However, I recall an event last year, which is not uncommon, involving a man who committed suicide by parking his car on a railway line. He was struck by a train travelling at 70 mph with 200 people on board. Therefore, there are shades of risk between a suicide on one hand and a criminal offence on the other.

Rosie Winterton (Labour, Doncaster Central)

My hon. Friend makes an important point about where we see a difference. He is quite right to say that some people who commit suicide but who retain their judgment throughout the period of their illness—

Rosie Winterton (Labour, Doncaster Central)

We are discussing a fundamental issue. In the other place the spokesman for the official Opposition argued that the law and the state hadno business interfering in the lives of patients who retained decision-making capacity, despite being seriously ill, if the risk that they posed was to themselves; if they posed a risk to others, that was or should be the province of the criminal law. As I said this morning, that seems fundamentally wrong. It means the state abdicating its responsibilities for protecting people suffering from mental disorder who may be driven to self-harm or even suicide.

As for people whose disorder may be putting others at risk, it is true that the criminal law can intervene,but only after an offence has been committed. In other words, the Opposition have said, in effect, that the rights of those patients not to accept treatment are invariably to take preference over the rights of other people who may become victims. They have said that the competing rights are not to be balanced, but that the former is automatically to be given preference.

I ask the Opposition to think carefully about attempting to retain the clause. It really will have a detrimental effect, admittedly, as the British Psychological Society said, on a small number of people. However, it is not right that we, as parliamentarians, are prepared to turn our backs on those people and not get treatment to them when they desperately need it. That is why I am asking the Committee to reject clause 4.

John Pugh (Liberal Democrat, Southport)

I am delighted to see you in the Chair, Miss Begg. Although I cannot imagine what you have done to hold such a positionfor the whole of Thursday when you were not even assigned to chair the Committee, I am pleased tosee you.

We debated exceptions the other day, most ofwhich could be resolved easily by including a statement of principles in the Bill. The Scottish Bill excludesany prejudice on the grounds of age, sex, sexual orientation, religious persuasion, racial origin, cultural or linguistic background and membership. I could not help reflecting that, had we had such a statement of principles, much of our earlier debate could havebeen avoided.

The clause that we are considering is verbatim the clause in the Scottish Bill and the Secretary of State seeks to remove it. In its submission, the Royal College of Psychiatrists said about the Scottish Bill that

“We consider that the Scottish Mental Health Act provides an excellent model for a new law for England and Wales. The positive experience of our colleagues in Scotland over the last year and a half has reinforced this view.”

I am mindful of the danger that all that we will do in the Committee is repeat the mantras and arguments of the other place. Despite the copious briefings that we receive, we shall just be marking time until the real trial of strength occurs between the Lords and the Government, which to some extent will mask the real and long battle that has been going on between the Government and the Mental Health Alliance, where briefings can simply be used as ammunition and Members of Parliament can be used as proxies for organisations outside this place and reduced almost to the state of ventriloquist dummies whereby discussions can be choreographed and so on.

I genuinely believe that that is a waste of our time. It is a misuse of what is obviously a talented, informed and able Committee. A Public Bill Committee hasvery real strength. We cannot rival their lordships’ eloquence or eminence—[Hon. Members: “Come on.”] Well, some of us cannot. There is far more interchange and challenge and more probing questions are asked in a Public Bill Committee, as we found out this morning. I was struck by the lack of interventions in the Lords’ debate and the rather respectful audience that they gave one another. That is fine if one wants to state a case, but less good for exploring, analysing and defining points of difference.

One of the best speeches in the House of Lords was from Baroness Murphy, whose contributions throughout the debate were splendid. She is a psychiatrist, and she said of the amendment—which is now clause 4—which might puzzle some members of the Committee:

“I do not believe that the amendment will change who is detained and who is compulsorily treated”.—Official Report, House of Lords, 10 January 2007; Vol. 688, c. 234.]

That may puzzle some members of the Committee. It prompts one to ask what all the fuss is about.

Ian Gibson (Labour, Norwich North)

What is the answer?

John Pugh (Liberal Democrat, Southport)

Clearly, the Government and the Mental Health Alliance think that there is an important issue, as there are two conditions in the 1983 Act for the detention of a mentally ill person. One, obviously, is having a severe mental disorder; the other is to be seen or judged to constitute a risk to oneself or others. Essentially, the amendment would add a third condition—that the individual has impaired judgment about his medical treatment.

The Government want to insist that it is perfectly safe to leave just the two conditions in place. They argue that to add the other condition would make matters worse because mentally ill patients whoare judged at risk will be left free to commit suicide and, less commonly, to harm others.

The key question is who we are talking about here. Could there be people who are judged to be a serious danger to themselves and others who are diagnosedas mentally ill and who are possessed of unimpaired judgment? I wanted to define where people stood on that issue, so I wrote to a number of the bodies that contacted me and asked if there were such people and what they were like—we explored some differences in the debate this morning.

Mind wrote back to me saying that it was hard to imagine that there were such people; the British Medical Association said that it was entirely possible that there are such people. The Royal College said not in most cases, although there will be some dangerous people who coincidentally will have mental problems. Lewis Appleby at the Department of Health said yes, there definitely were such people. The Law Society, in submission MH20 said that it was axiomatic that if one is dangerous and disordered one is mentally impaired.

The British Association of Social Workers in submission MH25 said:

“If a person’s judgement is not impaired, they cannot be suffering from a serious mental disorder”.

Baroness Murphy said that

“many if not all”—

of the people who pass on the first two criteria—

“will have impaired decision making”.

Rosie Winterton (Labour, Doncaster Central)

Many.

John Pugh (Liberal Democrat, Southport)

Well, “if not all” was added.

Baroness Barker, Earl Howe and the Royal College of Psychologists said, explicitly, that there would be some without impaired decision making, who should be allowed to act freely. They took what the Secretary of State described as a libertarian position.

The interesting thing about the variation of views is that it genuinely does not depend on whether someone is for or against this Bill, which leads me to surmise that there is an element of confusion about what weare discussing. I posed the question whether impaired judgment is not by itself clear, and I considered whether I could make it any clearer. It is not defined in the Scottish Act, although it is in the guidance, but when Baroness Barker introduced the amendment she contrasted the lack of decision-making ability and capacity with impaired decision making. On the other hand, Professor Richardson, in her submission MH22, said almost precisely the opposite, talking of:

“our desire to see the introduction of an incapacity criterion.”

All this is less than clear. The Lords notes distinguish impaired decision making from disorder of cognition, but in submission MH9, Professor George Szmukler, who is quoted on several occasions by a number of people, said:

“‘emotional elements’ are ... in an important sense ‘cognitive’”.

Even if it is not clear what effect the Lords amendment would have, it is fairly clear what it was intended to do—to reduce the pool of potential detainees, although by all accounts it would do so by only a small number, and assert the right of patients, particularly those who are not impaired in their judgment, to have a say in their treatment. I believe that we all support those laudable and important objectives.

I share the concerns voiced through the Lords amendment and in many of the objections to the Government’s position. We all know the sad historyof full-frontal lobotomies, for example, that were performed on people who did not know that they were being done. We know more recently of overdoses of Largactil and so on, with all kinds of adverse effects on people’s physical health that had not been anticipated and were not properly explained to them.

The clause is supplementary to, not a replacement for, the two conditions laid down in the Mental Health Act 1983. Many of the fears that have been expressed about not including the clause could relate equally to how that Act has functioned. To some extent, we are now seeing how it has functioned, and we have had24 years’ experience of it. The addition of a third condition to that Act, that of impaired judgment, would by all accounts exempt a limited number of people who also satisfy the other conditions. So it cannot by its presence or absence significantly affect the number of people likely to be sectioned by psychiatrists, unless psychiatrists start behaving markedly differently from how they have behaved for the past 24 years.

However, the clause makes an important pointabout patient autonomy and choice, and it underlines and makes explicit the connection between cure and consent. Provided that the Government’s fears are not realised, and people judged a threat to the health and safety of themselves or others under the 1983 Act are not allowed to commit suicide or an aggressive act on somebody else by virtue of their mental disorder, there seems no major harm in leaving the clause in the Bill.

We must address the Government’s fears, as they have been put seriously. I tried to follow the argument as fairly as possible, and there are fundamentally three categories of response to what the Minister said. The first is that her fear is groundless; there is no category of people about whom we need to worry. The second is that responding to that fear by removing the clause would generate more unnecessary incarceration than one would expect and certainly more than it is worth. If it prevented one ill, it could create a worse ill elsewhere. The third response is the more radical one given by Baroness Barker and Earl Howe—that we must put up with the current state of affairs on the grounds of civil liberties. When individuals defend the clause, they sometimes select one of those responses and sometimes give all of them.

I have said enough about the first two responses, so I shall turn to civil liberties. One can fairly claim the right of an individual to commit suicide by virtue of their mental illness. I do not, but one can make that point and it is intellectually defensible. Nearly everyone would hesitate to claim the right of an individual,for instance a stalker, to harm and harass another individual by virtue of their mental illness. It is often pointed out when dealing with civil liberties that sane people, or those with no mental disorder, commit suicide and do wrong things, and that, hey, there is criminal law out there. That is a slightly glib response, because it depends on believing that people who are mentally ill and those who are not possess the same personal and moral autonomy. I cannot in all cases believe that.

If an individual with a diagnosed personality disorder were treated simply as a common criminal, we might have some reservations. Do we not believe that mitigating conditions might apply, or ought to apply, if someone has a diagnosable mental disorder? Why do we believe that, and what remedies do we have?

The Joint Committee looked at the thorny issue of untreatable personality disorders. I do not have the quote to hand, but I do not think that it is unfair if I summarise a crucial passage of the Committee’s findings. It said, “Yes, this is a residual problem, but that must be left for other legislation.” However, it slightly sold the pass by failing at that point to tell us what such legislation would look like and whether or not it would involve mental health legislation.

Rosie Winterton (Labour, Doncaster Central)

Would the hon. Gentleman address the point that outwith the criminal justice route, one of the things that we want to do is to prevent people from offending to reduce offending rates. Therefore, unless someone’s judgment is impaired, we are allowing them—perhaps when they have not offended before—to go ahead and commit an offence because we are saying that we cannot intervene. That is the other side of it. It is not just about someone committing an offence but about getting help to them before they have done that.

John Pugh (Liberal Democrat, Southport)

There are obvious concerns about pre-emptively acting to prevent people from committing an offence that they have not as yet started to commit. Lawyers can comment on that issue far better than I can. However, I accept that the Minister has made a perfectly decent point.

This is not an easy issue. Anyone who pretends otherwise is being simple-minded. According to my account—I do not think that it is an unfair account—the Government and the Mental Health Alliance are not as far apart as it might seem. However, simply removing the clause leaves the issues unresolved, the differences unexplored and sends out all the wrong signals.

Ann Coffey (Labour, Stockport)

I am a member of the Modernisation Committee, which produced the report proposing to set up Public Bill Committees and emphasising the importance of pre-legislative scrutiny. We also do not do enough post-legislative scrutiny in the House, particularly on Bills such as this. Questions such as those rightly raised by the hon. Member for Southport about the 1983 Act could be answered if we had more information or had examined since 1983 how the Act operated and was implemented. We do not have that degree of knowledge, so we have to predict the consequences of legislation.

My right hon. Friend the Minister has a point when she says that by leaving in clause 4 and enforcing the Lords amendment in a rigid way, a very difficult group of people, who are difficult to help, might be denied help. That is a very strong consideration. We cannot divide the problem into those who self-harm and those who harm others because, as my hon. Friend the Member for Stafford pointed out very coherently this morning, they are often the same people. The people who jump off the motorway bridge in my constituency into the path of a car not only lose their own livesbut endanger the lives of people travelling along the motorway. The same thing applies to people who jump in front of trains. The act of suicide can in itself bea very aggressive and angry act from people whohave had a very disturbed background. Therefore, the interests of people who harm themselves and the wider community are interlinked.

Although I understand the reasons behind the separate test, I am not sure that it is totally necessary. Two weeks ago, I went out and spent time with approved social workers from one of the London hospitals, and witnessed a mental health assessment. It was clear to me that the issues of mental disorder and capacity were interlinked in how the two psychiatrists and the approved social worker conducted that interview. What they brought to the interview was several years of training and experience. As has been said, mental disorder, or the continuum on which somebody is disordered, is not easy to identify; one cannot take such people’s temperatures or see whether they have a rash. Ultimately, the matter depends on clinical experience, which is why I do not understand where the Royal College of Psychiatrists is coming from on this matter. It is very jealous of its professional expertise. Some clauses that we will talk about later argue for the retention of a central role for psychiatrists in assessment because of their expertise, which they cannot be substituted by anybody else. I am not sure why the royal college wants to have that flexibility to make clinical judgments taken away from it, in effect, by putting a test about a test about impaired decision making—nobody knows what that means—in the Bill.

There is also another issue that we should consider. The professionals who will work in mental health will also work in other areas that will be governed by the Mental Capacity Act 2005, which comes into forcein January 2008. Psychologists, psychiatrists, mental health workers and community nurses will all implement that Act, which, as everybody knows, sets out the definition of a person who lacks capacity. It focuses on a particular time when a decision has to be made, and on the particular matter to which the decision relates. The Act states:

“It follows that a person can lack the capacity for the purposes of the Act even if the loss of capacity is partial or temporary or if his capacity fluctuates.”

I am reading out the provision because it goes into some detail about what the criteria are for lack of capacity. The so-called diagnostic test picks up a range of problems such as

“psychiatric illness, learning disability, dementia, brain damage, or even a toxic confusional”

state. Those are the same areas in which psychiatrists and approved social workers will make judgments in mental health assessments. That is underlined by a very strong set of statutory principles that apply to the Mental Health Act.

Administering or implementing the 2005 Act will lead to those professionals having a shared view of what capacity is, and sharing their clinical experience through case studies and case law. That is a very important process, and it is a welcome Act. However, the problem is how that process would sit with clause 4, which takes in impaired decision making. Part 4 of the Mental Health Act 1983, which is about consent to treatment, uses the term “capacity”. In other words, somebody has to make a decision about consent to treatment. The decision will be either that the patient is not capable understanding the nature, purpose or likely effect of the treatment, or that the patient does not consent to it. It is all about issues of capacity. It will be difficult if clause 4 introduces provision about impaired decision making, however, but part 5 of the Act, which is about consent for treatment, talks about capacity. The words that we put in the Bill and what they mean are very important, and that will lead to difficulties.

Further confusion may arise in another area, in which I envisage—I am not a lawyer—that many in the courts and mental health tribunals will be interested. If somebody with learning disabilities also has a mental disorder and is being assessed for treatment under the Mental Health Act, they will already have been assessed under the Mental Capacity Act 2005 for capacity in decisions relating to other areas of life, such as finance and so on. They will then attend an assessment for treatment under the Mental Health Act, in which the criterion is whether they have impaired decision making, which is different from having the capacity to make decisions. Even though people say that the terms are the same, they are different words, and therefore mean something different. They canand will be interpreted differently by the courts. If impaired decision making is a higher obstacle, therefore, someone with learning disabilities who has been deemed incapable of making decisions underthe Mental Capacity Act could be refused treatment under the Mental Health Act, as they would still be considered as satisfying the clause 4 condition, as that is different. I do not think that we can have two different tests in this area.

The way forward is to see how the Mental Capacity Act is implemented when it comes into force in 2008, as I think that it has some implications for the Bill. The hon. Member for Southport seemed to say that he did not think that it made a great deal of difference. In that case, to avoid confusion, I suggest that the best way forward is to remove clause 4 from the Bill until we can see the results of the implementation of the Mental Capacity Act, and not add further confusion tothis area.

I will just make a final plea. Legislation is not perfect, and I am a strong believer that we should leave as much flexibility in legislation as possible concerning the decision making of people who will have to operate it on the ground. We should not be in the business of having tick boxes or setting obstacles for people to overcome. We should set standards for them, have confidence in those standards and let them get on with the job that they have chosen to do.

Tim Loughton (Conservative, East Worthing and Shoreham)

I welcome you to the Chair, Miss Begg, for the second time today, which certainly needs endurance.

I should like to set out the parameters of wherewe stand on this issue, and try to address some ofthe Minister’s points. There is a clear differenceof principle, and the clause was added in the House of Lords after a great deal of deliberation; it was not just thought up on a wet Friday afternoon. “Impaired decision making” is not some clever little phrase that someone has come up with; it has been thought about over many years by the Mental Health Alliance of professional service users and providers. “Impaired decision making” is a recognised phrase, and most, if not all, professionals know where they stand on it and what it means.

David Kidney (Labour, Stafford)

Will the hon. Gentleman give way?

Tim Loughton (Conservative, East Worthing and Shoreham)

So soon? Very well.

David Kidney (Labour, Stafford)

Will the hon. Gentleman confirm that, in accordance with the explanatory notes to the Bill, there is no legal precedent for that phrase?

Tim Loughton (Conservative, East Worthing and Shoreham)

As the hon. Member for Stockport has just said, she wants to leave the decision to the professionals at the sharp end who are providingthe services to people, and we should rely on their judgment and their interpretation of these phrases. All the professionals who have made representations, and all those represented in the Mental Health Alliance—I need not list them all again—are in accord with having a clause about impaired decision making.

Rosie Winterton (Labour, Doncaster Central)

Has the hon. Gentleman seen the latest letter sent to members of the Committee bythe Royal College of Nursing, which was mentioned yesterday as part of the enormous number of professional bodies in this area? He says that all professionals are agreed, but I will just read to him from that letter:

“Nurses are bound by a code of conduct and professional ethics to do all they can to prevent harm. We could not support any legislation that could impede our members in their primary aim of preventing foreseeable harm. We do appreciate the Government’s concern that the amendment relating to the absence of ‘impaired judgement’ could enable service users to take decisions that may have tragic and regrettable consequences for their families and themselves. It is imperative that our members work within a clear and unambiguous legislative framework which will enable them to provide appropriate care and treatment in situations of obvious moral, legal and ethical complexity.”

I understand that the letter has been sent to members of the Committee today.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am grateful; I have not seen that brief. Of course, nurses will not make decisions on sectioning.

Rosie Winterton (Labour, Doncaster Central)

Yes, they will.

Tim Loughton (Conservative, East Worthing and Shoreham)

No, those nurses will not be making decisions on sectioning or the renewal of sectioning under the amendments that we have supported in the Lords.

Rosie Winterton (Labour, Doncaster Central)

In the Lords.

Tim Loughton (Conservative, East Worthing and Shoreham)

Yes, absolutely. That is entirely consistent with what we are saying. If the Ministercan quote similar comments from the Royal Collegeof Psychiatrists or the British Medical Association, perhaps that would show that I am wrong, but why have all the submissions that we have seen and all the deliberations in the Mental Health Alliance supported the inclusion in clause 4 of “impaired decision making”?

Rosie Winterton (Labour, Doncaster Central)

I should like to draw to the hon. Gentleman’s attention a note that was attached to a letter dated November 2006 from members of the Royal College of Psychiatry, Dr. Tony Zigmond and Dr. Ian Hall. It stated that the college wanted

“to see patients having the freedom to decide whether or not to accept medical help if they retain decision-making capacity... We know some colleagues have some reservations about this.”

The hon. Gentleman will find that there are many different views on the subject, but it boils down to whether there is an agreement that, if somebody does not have impaired judgment, they should be allowed to go out and commit suicide or, in some cases, harm others. That is the long and the short of it. There are certainly different views within the profession; it is our job to decide which side of that argument to come down on.

Tim Loughton (Conservative, East Worthing and Shoreham)

Perhaps the Minister will name those members of the Royal College of Psychiatrists or the BMA who take that view.

Rosie Winterton (Labour, Doncaster Central)

I have a list of about 10 psychiatrists who have signed up to a letter—I do not have it in front of me, so I shall come back to it in my winding-up speech if the hon. Gentleman allows me to—saying that the issue of impaired judgment is extremely important, because some people will not get treatment. It is important to recognise that there are those who disagree.

Tim Loughton (Conservative, East Worthing and Shoreham)

Will the Minister tell us how many members of the Royal College of Psychiatry or practising psychiatrists there are in this country? She refers to a list of 10 signatories to a letter—presumably, the same people whose names she trotted out when challenged on various occasions to find practising psychiatrists who would support some of the measures in the Bill. If she claims that there is widespread support for her view, she needs to produce the evidence. [ Interruption.] The situation is that out of 80 members—[Interruption.] I do not know whether Minister wants to listen; I am trying to respond to the point that she made to me. The Committee is trying to scrutinise the evidence. [ Interruption. ] The Committee should be scrutinising the evidence in support of our scrutiny of the legislation. If Government Members want to scrutinise the legislation in the absence of any evidence—in a factual void—we are coming at the issue from different viewpoints.

Is the Minister seriously trying to claim that there is a large body of people who share her position? Of course there are individuals who will take a different view, but 80 organisations, representing thousands of professionals, service users and service providers, have signed up to an amendment in favour of the inclusion of “impaired decision making”, which went into the Bill in the Lords. The balance of argument from those organisations is therefore in favour of “impaired decision making”, which is against what she has proposed.

A note from the Royal College of Nursing on behalf of people who will not be making those decisions has gone round today, although nobody has seen it, and there is a list of 10 people with a different view, whose names the Minister cannot quite put her hands on, but who I am sure do exist—I shall give her credit for that. That is a small number. That is precisely the point that I am making.

Ian Gibson (Labour, Norwich North)

Will the hon. Gentleman tell us about the decision of the Royal College of Psychiatrists? At which meeting did this understanding come to him? How many people voted? Was there an annual meeting, a ballot or what? If we are going to penetrate how decisions are made, let us do it openly.

Tim Loughton (Conservative, East Worthing and Shoreham)

The hon. Gentleman will have had the opportunity to quiz the representatives from the Royal College of Psychiatrists and will have seen its official submission. Is he trying to tell us that what has officially been advanced as its position is not its official position, or that the majority of its members do not agree with that? That seems to be the tenor of what he is suggesting.

Ian Gibson (Labour, Norwich North)

I am not making the assertions. You are asserting that you understand that an organisation did this. I am asking you for the evidence, because you are asserting it.

Anne Begg (Labour, Aberdeen South)

Order. I remind the hon. Gentleman that I am not making any assertions whatsoever.

Several hon. Members rose—

Tim Loughton (Conservative, East Worthing and Shoreham)

Let me take that point, then I will give way to lots of hon. Members.

The hon. Gentleman has the evidence in his own files. He will have received the official submission of the Royal College of Psychiatrists, as part of the written submission to the Committee, along with everyone else. However it came to that decision—whether the psychiatrists all got together in a big room or whether it was made by a committee on their behalf—is the hon. Gentleman seriously suggesting that the Institute of Psychiatry, or any other organisation that is part of the Mental Health Alliance, has a little clique or minority in control that has advanced a view that is not shared by the majority of the people whom they represent? [Interruption.] I will read these notes shortly. If so, I suggest that the hon. Gentleman takes a dim view of the way in which the Royal College of Psychiatrists and other medical professionals behave, and I am surprised about that.

Charles Walker (Conservative, Broxbourne)

I have the brief from the Royal College of Psychiatrists in front of me: it says that the royal college is a member of the Mental Health Alliance and agrees with its briefing. It agrees with everything. The Minister seems to suggest that it is not in agreement. [Interruption.] She is quoting psychiatrists who, somehow, do not seemto be in agreement with the position taken by their professional body.

Tim Loughton (Conservative, East Worthing and Shoreham)

Indeed. I have had the privilege of a little in-flight refuelling, which the Minister usually has the monopoly on. The position of the Royal Collegeof Psychiatrists was decided on democratically, by democratically voted-for representatives who are entirely answerable to their members. That strikes me as pretty good. I am confident from my conversations with practitioners and representatives of the Royal College of Psychiatrists that the briefing that both the hon. Gentleman and I have received represents its official position and that of the great majority of its members, even though there may be at least 10 out of many thousands who do not sign up to that. I am prepared to go with the majority. An awful lot of the Government’s approach to the Bill appears to be predicated on a vociferous minority that happens to agree with the Government, but it is very much a minority.

Several hon. Members rose—

Tim Loughton (Conservative, East Worthing and Shoreham)

I will give way to the Minister first, then to my colleague—and I have only read the opening paragraph of my notes.

Rosie Winterton (Labour, Doncaster Central)

Does the hon. Gentleman accept that what we are saying leads on from what the Royal College of Psychiatrists said? It has told me quite openly in a meeting that we have to accept that some people will not get treatment as a result of the impaired judgment test. The Royal College of Nursing very quickly said at our meeting that it did not agree that that is the right approach to take. That is why it has been very keen to ensure that members of the Committee understand that it believes that approach to be bad. It believes that people should be helped, if needed, which is why it has been so keen. Let us remember that community psychiatric nurses and others will be the ones doing such work. For example, they will be involved in the renewal of detention, so their views should be taken note of.

Tim Loughton (Conservative, East Worthing and Shoreham)

By the same token, there are many sufferers from mental illness who will be admitted by compulsion for treatment that will be counter-productive. We can come on to that as well. The Minister is predicating all her argument on treatment working. For many, it does not, and for many, it can be counter-productive. That is what I want to come on to, when I get to my speech.

Angela Browning (Conservative, Tiverton and Honiton)

I am grateful to my hon. Friend, and I hope he enjoyed the little billets-doux between us.

Chris Bryant (Labour, Rhondda)

A one-way street.

Angela Browning (Conservative, Tiverton and Honiton)

The story of my life. The hon. Member for Stockport began her contribution by suggesting that the debate would be better informed if we were able to scrutinise post-legislative examples—in this case and clause we can. The Mental Health (Care and Treatment) (Scotland) Act 2003 includes a clause on impaired decision making, as well as one on capacity, although in the Scottish legislation it iscalled “incapacity”, while we have chosen to call it “capacity”. We might have hoped that the Government would have learnt from the very real experience of an Act passed in 2003, not ignored it, particularly when that Act provides for impairment as well as incapacity.

Tim Loughton (Conservative, East Worthing and Shoreham)

My hon. Friend makes a very good point. Based on the Government’s logic, there should have been an increase in the number of suicides in Scotland, for example, if what the Minister is trying to warn us of is true. I am not aware of any increase in the number of suicides in Scotland. My impression is that there has been a small fall, in line with the rest of the United Kingdom. I do not understand, if something appears to be okay in Scotland and working, why it is going to give rise to all sorts of horrors if we enact it in the Bill.

Tim Boswell (Conservative, Daventry)

Does my hon. Friend not agree that one of the reasons why patients or potential patients may be reluctant to submit to certain treatments, certainly if imposed on them compulsorily, is their prior experience? For example, they may have offered themselves as voluntary patients and found the likely medications prescribed not only extremely unattractive, but with very damaging or alarming side effects.

Tim Loughton (Conservative, East Worthing and Shoreham)

My hon. Friend is absolutely right, and I should like to elaborate in a minute if hon. Members would allow me to make some of my points. We seem to be having a bit of an argument about the veracity of certain of the evidence before us. I want to counter the Minister’s points and justify why clause 4 should remain in the Bill.

I am sure that all hon. Members agree that weare approaching the issue from a point of non-discrimination, which should be the basis of all health treatment and certainly of mental health treatment. Enshrining the principle of non-discrimination andthe non-stigmatising approach in mental health lawis important and is all about protecting those with capacity who are capable of making their own decisions from being forced to undergo treatment or medication to which they object and that, in some cases, may have side effects and not be beneficial to their physical health. I will come on to that in a minute.

Whatever the Minister says and however many letters she pulls out, the Government are in a position of relative isolation. The Government’s expert committee, under Professor Genevra Richardson, came out in favour of such an approach. She stated:

“Patients should not be subjected to compulsory treatment against their capable wishes simply in the interests of their own health or for the avoidance of annoyance to others. To do so would be to discriminate unjustifiably against mental as opposed to physical ill health. If we are to apply the recognised principlesof health care equally across mental and physical disorder, it would help significantly to reduce both the discrimination reflected in the Mental Health Act 1983 and the stigma which feeds on it. Far from seeking to deny treatment to those who need it, the impaired decision making condition would place mental and physical disorder on an equal footing and would begin to break down those barriers which deter people from seeking the help they need.”

I agree with that and I think that the Minister will agree with the anti-stigmatisation sentiments behind it. The Government’s own committee is in favour of the terminology, wording and approach added to the Bill in clause 4.

Chris Bryant (Labour, Rhondda)

Clause 4, which is being debated almost as much as the Labour party used to discuss clause IV—[ Interruption. ] We will not start on that one. Clause 4 is the only change that the Bill would make to section 2 of the 1983 Act. I can only presume that the hon. Gentleman and those who support the change believe that presently there are people being detained who should not be detained and who should be granted an exemption by the clause. [Hon. Members: “How many?”] Who are those people and how many of them are there?

Tim Loughton (Conservative, East Worthing and Shoreham)

A lot of people with autism spectrum disorders might be affected, as was mentioned. That is why we need new legislation to update and amend an Act that is now 24 years old. I do not see the point that the hon. Gentleman is making. I challenged the Minister this morning on how confident we can be about the prediction that the Bill will lead to a specific number of lives saved. We cannot predict that. To get into a ridiculous numbers game is wholly unrealistic and is in any case unhelpful.

Rosie Winterton (Labour, Doncaster Central)

Will the hon. Gentleman give way?

Tim Loughton (Conservative, East Worthing and Shoreham)

I shall make a couple of further points and then give way, although I do not want to speak for as long as the Minister, who took a lot of interventions.

Let us remind ourselves of what the Joint Scrutiny Committee said. It stated:

“We acknowledge the Government’s concerns about the use of a criterion of impaired decision-making, but we believe that most of those concerns can be overcome. We believe that compulsory powers should only ever be used as a last resort when people are very seriously ill, and we do not agree that a person would become too seriously ill before an impaired decision-making criterion is met.”

The Law Society’s brief, stated:

“We are clear that this amendment would not exclude a mentally disordered person who was a danger to themselves or other people from compulsory detention and treatment under the 1983 Act—since their decision making ability would by definition be impaired.”

That was the point that I tried to make this morning.

Chris Bryant (Labour, Rhondda)

Will the hon. Gentleman clarify that? Is he saying that he agrees with those who believe that, by definition, the desire to kill oneself is demonstrable evidence that one has impaired judgment?

Tim Loughton (Conservative, East Worthing and Shoreham)

That is entirely the point that I made this morning. Looking at my notes now, I can see that I said that if there is a serious risk of a person being about to commit suicide, or capable of or intent upon suicide—if a person is in crisis—de facto their decision-making capacity is impaired.

Let us also remember that a recent addition tothe Mental Health Alliance is the Samaritans. The organisation has some expertise in suicide and in people who are in a state of crisis and it has been alarmed at the implied connection between committing suicide and suffering from a mental illness. It does not agree with that. It has also signed up to the impaired decision-making clause. The Samaritans organisation talks with some expertise. In whatever way it reached its decision—democratically or not—however official or unofficial its brief might have been, and on whatever basis it signed up to join the Mental Health Alliance, the organisation believes that an impaired decision-making clause is beneficial to people and certainly would not lead to an increase in suicide or an increased risk of suicide. Some volunteers within the organisation might take a different view, but that is what the organisation is officially saying, and experts such as the Samaritans are people to whom we need to listen.

Rosie Winterton (Labour, Doncaster Central)

I want to clarify whether the hon. Gentleman is actually disagreeing with what the Opposition said in the House of Lords. The official Opposition spokesman argued there that the law and the state have no business interfering in the lives of people who retain decision-making capacity despite being seriously ill, if the risk that they pose is to themselves.

That is a manifestly different position fromthe one that the hon. Gentleman has just proffered. Furthermore, he has quoted from evidence, but does he accept that the British Psychological Society has said that a very small number of people believed to be at risk of self-harm or suicide by this approach would be permitted to refuse treatment if their decision making was not considered to be significantly impaired?

The hon. Gentleman cannot have it both ways. He cannot say that everybody would be covered by the proposed provisions on impaired decision making as they stand, but that we need to include a test just in case anybody is not. His argument must be that there are people whom we should not be treating, as his party’s spokesman said in the House of Lords. That is the inevitable logic.

Tim Loughton (Conservative, East Worthing and Shoreham)

Has the Minister finished? I spoke to my colleague in the Lords, Earl Howe, who was at the forefront of the debate there, and I have his comments before me. The point that he was making, which he made directly to me as well, was that of course we are not in the business of allowing or even encouraging a position that would fail people to the extent that more suicides would result. We believe that the impaired decision-making clause is a much better preventive measure. The question that Earl Howe asked was: why should the law allow the overriding of the wishes of people who have the capacity to determine their treatment?

Ms Winterton rose—

Tim Loughton (Conservative, East Worthing and Shoreham)

If the Minister will allow me, I shall continue a little longer. Our debate so far has been entirely about whether people should be sectioned or not; we have not touched at all on the issue of treatment. Many people under section still retain capacity, but the clause allows people with capacity to have a say on their treatment—that is entirely allowed.

Ms Winterton rose—

Tim Loughton (Conservative, East Worthing and Shoreham)

Calm down, Minister. How can we justify saying that we are happy for somebody who has been sectioned to have their wishes and their previous experience completely overridden as far as their treatment is concerned? I shall give way to the Minister, before she bursts.

Rosie Winterton (Labour, Doncaster Central)

The hon. Gentleman has just said that there are many people currently under sectionwho retain their ability to make decisions. Under his proposal, those people could not be detained, because the impaired decision-making test would trump the test of whether the person was a danger to themselves or to others. Furthermore, will he give a number for “many people”? It is curious that the British Psychological Society said that there were very few such people, whereas the hon. Gentleman says that there are many. How many is it?

Tim Loughton (Conservative, East Worthing and Shoreham)

We keep going back to the British Psychological Society. It has never had so much publicity as it has had today in the Committee. Let me quote an example from Dr. George Szmuckler, who is involved with the Institute of Psychiatry. Speaking about capacity assessments of different types of people, he said:

“The research at the Institute of Psychiatry involving both patients on the medical wards at King’s College Hospital on the one hand and 112 patients on the psychiatric wards at the Maudsley on the other, found similar percentages of patients with impaired capacity—around 40 per cent.—and did not find significant differences in the reliability of capacity assessments.”

The point that he was making was that people with physical illnesses lose their capacity just as much as those with mental illnesses. The point that I am trying to make is that people with a long-term mental illness will have been subject to all sorts of medical treatment and other treatments in the past. Many of them therefore build up a degree of expertise themselves as to what treatments and drugs work and which may have negative effects. If they retain some capacity to make those judgments, those judgments should be listened to. If they are receiving long-term drug treatment that can cause obesity, or may cause their hair to fall out, or cause all sorts of liver or heart problems, surely they should be able to have some influence over that treatment. That is what the clause is all about.

Tim Boswell (Conservative, Daventry)

I am sure that my hon. Friend will also have noticed another witness. Clause 10 states the fundamental principles that should inform the code of practice. The first three are:

“(a) respect for patients’ past and present wishes and feelings,

(b) minimising restrictions on liberty,

(c) involvement of patients in planning, developing and delivering care and treatment appropriate to them”.

If those principles apply, surely it is much better that they should do so than that the patient should be put under compulsion as an alternative.

Tim Loughton (Conservative, East Worthing and Shoreham)

My hon. Friend is right and the Minister mentioned that earlier in her references to best interests. As my hon. Friend said, best interests include past and present wishes as set out in the Mental Capacity Act 2005. It is not just about access, but about treatment. The problem seems to be that mostof what the Minister has said today was based on the effect that this provision might have on people self-harming. She ended with a great cry of force that this will have an impact on public safety too. She sneaked in the old canard, which has been a particular focus of the Government, that it is the public who are being put at risk.

By that same token, should not the alcoholic who is a driver have his licence taken away because he may, while under the influence of alcohol, kill someone? Similarly should not the diabetic who is not taking his medication have his licence taken away—never mindbe restricted? Subject to passing occasional tests, a diabetic is at liberty with a physical illness that could result in them causing damage to someone else. We are talking about people who retain capacity who are being treated differently. That is the whole point of the difference between them.

Rosie Winterton (Labour, Doncaster Central)

I am worried that the hon. Gentleman does not understand the effect of the clause. The clause prevents the detention of people who are a risk to themselves or a risk to others unless it can be shown that they have impaired judgment. It is nothing to do with the treatment that they might receive once they are detained. That is absolutely separate. It simply prevents their detention in the first place. It is important that he acknowledges that that is what it does.

Tim Loughton (Conservative, East Worthing and Shoreham)

I totally acknowledge the point that the Minister is making, which is predicated on a subjective interpretation that an impaired decision-making test will in some way be a greater hindrancefor people accessing treatment than is the current legislation. What we said earlier was that people who are in a state of distress and are likely to commit suicide are more likely to be picked up on the basisof impaired decision making. We seek to protectthose people. The Minister’s is an entirely subjective interpretation of what will be achieved by using an impaired decision-making test.

Ann Coffey (Labour, Stockport)

Will the hon. Gentleman give way?

Tim Loughton (Conservative, East Worthing and Shoreham)

May I just make one more point? The other basis on which the Government have got it wrong—going by an earlier reference to the numbers needed to treat—is the assumption that treatment works. We know that, as with any physical illness, a lot of patients with a mental illnesses will not respond to the treatment that is prescribed for them on the first, second or even third prescription. In order to justify the use of a treatment for a physical illness, one would, typically, look to have a one-in-three success rate; so, for every three patients given some medication or other form of treatment, one would expect at least one of them to benefit. That is the sort of figure that NICE guidelines would work on.

For suicide, the statistic is that something like one in 100 might benefit from treatment to prevent them from meeting that end, and for homicide prevention the figure is some one in 2,500 to 5,000. There is no guarantee that the treatment will work. It has to be judged on the basis of the numbers needed to treat. By the Minister’s own NICE set-up, that is the basis on which the efficacy of a treatment will be judged. The point is that for some people compulsory treatment will not be beneficial. For them, treatment without compulsion is more likely to be successful and in their best interests.

Ann Coffey (Labour, Stockport)

I am sure that the hon. Gentleman will agree that that is exactly the situation that exists at the moment. Treatment for mental health problems has never been totally effective for everybody at the time when they have received it, because giving such treatment is a more difficult intervention than giving drugs for a disease. The situation that the hon. Gentleman describes is a reflection of our ability to help people with mental health problems; it is not something new. He cannot do anything about it by ensuring that clause 4 is part of the Bill; we are where we are.

Tim Loughton (Conservative, East Worthing and Shoreham)

I accept the hon. Lady’s point. I do not disagree that the system has shortcomings; we know that it has them, just as the legislation and the service provision do. If the service provision were perfect, legislation of this sort would not be necessary, or at least it would not need to be so severe. We are going to get it right only if the service provision isin place.

What mystifies me is that on every clause so far the Government have taken the attitude that a section is on a service provider—the mental health trust or whatever it might be. It is not. The section is on the service user to comply with treatment. This legislation is being used almost as a means of forcing the provider to provide treatment. If treatment is required, it should be provided anyway by virtue of the fact that the mental health service is working. Our fear is that too much of this legislation is designed to make up for shortfalls in this country’s service provision.

We have spoken for a long time on this clause—[Interruption.] I want to bring my comments to a close. There are serious inconsistencies between this Billand the Mental Capacity Act 2005. We could have suggested a capacity test as a threshold for this measure, but it is difficult to use in borderline cases, and impaired decision making is a more flexible test and a more familiar concept to professionals. Thereis an anomaly in the fact that it has been used in Scotland, and the clause is largely based on the Scottish experience. As it is apparently good for Scotland and has been working there without the sort of downside that the Minister warns about, I do not understand why she is making such a big song and dance about it now.

There is clearly a major gulf between us. We both approach this on the basis that we need to know whatis best for service users and for the clarity of professionals providing that service. We think that clause 4 provides that extra clarity. That is what the professionals seem to support.

Angela Browning (Conservative, Tiverton and Honiton)

It seems to me that we have heard quite a lot in the debate on this clause about capacity and the Mental Capacity Act 2005. Having sat on the scrutiny Committee and the Standing Committee that considered that legislation, I think that it is a verygood Act. However, I think that the assessment of impairment is also applicable. It is something that the Minister has rejected. I would like to put on record, for the benefit of my hon. Friend, the General Medical Council’s definition of the difference between impairment and capacity. Capacity, or incapacity as the GMC calls it,

“broadly involves a disorder of brain and cognition”,

whereas impaired decision-making

“is primarily a disorder of the mind in which a decision is made, resulting in the decision being made on the basis of reasoning coloured by a mental disorder.”

Therefore, this clause takes into account the possibility that someone could be suicidal or even dangerous to others. On that basis, the clinician would be making a judgment. The patient could have quite well advanced cognitive function but their impairment would mean that the clinician had to decide whether they needed to be detained. That does not mean that the patient could not be involved in that decision making.

Tim Loughton (Conservative, East Worthing and Shoreham)

My hon. Friend is absolutely right and puts it more clearly than I have been able to upto now.

John Pugh (Liberal Democrat, Southport)

Perhaps the Minister and the hon. Member for East Worthing and Shoreham are not quite as far apart on matters of substance as they believe. He quite correctly said that “impaired decision making” has a clear meaning for psychiatrists; if 99 out of 100 psychiatrists were asked to decide who in this room had impaired decision making, they would come to much the same conclusions. It is, therefore, clear for psychiatrists. However, the point is whether it is clear for legislators. I have seen nothing to persuade me that we, as legislators, are perfectly clear about what we mean by “impaired decision making” and I feel that we ought to be.

Tim Loughton rose—

Doug Naysmith (Labour, Bristol North West)

Will the hon. Gentleman give way?

Anne Begg (Labour, Aberdeen South)

Let the hon. Member reply.

Tim Loughton (Conservative, East Worthing and Shoreham)

I give way to the hon. Member.

Doug Naysmith (Labour, Bristol North West)

I thank the hon. Member; he has been very generous in giving way to many people this afternoon.

Tim Loughton (Conservative, East Worthing and Shoreham)

I have been foolhardy.

Doug Naysmith (Labour, Bristol North West)

“Foolhardy” is a good word. The hon. Gentleman has made numerous references to the Scottish Act this afternoon. He will recall that I stumbled by accident into a meeting of his the other day at which he was taking evidence. One of the witnesses, a psychiatrist, was saying that the Scottish Act, although it was passed in 2003, had not been implemented for long enough for any conclusions to be drawn and that the numbers were so small that he did not think that any conclusions could be drawn from it.

Tim Loughton (Conservative, East Worthing and Shoreham)

I agree with the hon. Gentleman on the basis that the Milan Committee discussed this long and hard in preparation for the Scottish Act, as did the pre-legislative Scrutiny Committee in preparation for the Bill. It is not something that has been plucked out of the air. It is early days, although that has not stopped the Secretary of State from trying to claim figures for the number of children now being detained in adult wards, in which I think that she was quite wrong. It is too early. However, Scotland has done it and many people are happy with it in Scotland and many people were happy to put it in place there. So far, at this early stage, it does not appear to have led to the horror stories that the Minister seems to suggest will occur.

In the interests of moving on, I would like to sit down now. [Hon. Members: “Hear, hear.”] Clearly, all hon. Members are in favour of that. We are perfectly happy with clause 4. There are all sorts of confusions over it, but we think that it gives extra clarity and a good steer to professionals, who are in favour of this measure. On that basis, I hope that the Government will not push this matter to a vote, but if they do we will vote in favour of retaining clause 4.

David Kidney (Labour, Stafford)

Thank you, Miss Begg. It is a pleasure to serve on a Committee that has you in the Chair, with your usual assured skill in keeping us all in order.

I oppose clause 4 because it introduces a test that is new, additional and may have unforeseen consequences that could be detrimental to people in the future if we pass it in its present form. I want to follow on from what I thought was a very constructive contribution to the debate by the hon. Member for Southport. He asked what we might do instead if we accept that there is still improvement to be made in the Bill but that removing clause 4 is not the right improvement.

I have a briefing from the Mental Health Alliance, which it sent to Members of the Committee. It is part of a detailed briefing that they sent us on individual aspects of the Bill, so its heading is “Impaired Decision Making”. It is not the same as MH21 in the bundle of documents that we have.

As I said on Second Reading, I would like to say that I have the greatest respect for the individual members of the alliance and for the alliance as a whole, but, of course, it is not homogenous and all its members have not agreed on every aspect of its submission. Indeed, within the briefing that I am referring to, on “Impaired Decision Making”, the author mentions occasions when members of the alliance had different points of view. A very good example is on the issue of whether capacity would be a good test as the threshold for compulsory detention in a hospital.

Of course, we all now have MH40, a briefing from a number of other organisations that are members of the alliance, but who write in respect of their professional qualifications and responsibilities. They say that they are writing

“to ensure that Parliamentarians are fully aware that regarding certain key aspects of the Bill, the Alliance does not speak for our organisations, and that we disagree fundamentally with several of the public statements made by them.”

I am just pointing out that it is not always the case that the alliance must be right, and must be speaking for all its members.

My starting point is a point that has been made by other Members in the debate. The briefing says:

“Practitioners in both physical and mental health care regularly conduct tests of capacity, as they are required to do in relation to consent to medical treatment.”

That is an important point that a lot of people have overlooked in the debate so far. We should remember that a practitioner giving treatment without consent could be convicted of an unlawful assault on a patient. A practitioner who detains somebody without their consent could be guilty of an offence of unlawful imprisonment. So, that is a very important first test. However, the crucial difference between mental and physical health, of course, is that, once that assessment is made, a psychiatrist, being presented with a possible mental illness, can override the capacity and apply, by law, a power to detain.

That is an important starting point for our debate. As the hon. Member for East Worthing and Shoreham has just said in his contribution, there is evidence that people who still have capacity are being detained at present. In fact, the alliance’s briefing says that

“A recent study found that a significant minority of detained patients, particularly those who had been detained on a previous occasion, retained their capacity.”

That is an important starting point. Incidentally, the reference for that study is “Prevalence and predictors of mental incapacity in psychiatric in-patients”, by Cairns and others in the British Journal of Psychiatry in 2005.

I think that is our starting point. Capacity is something that all psychiatrists and medical practitioners arevery accustomed to trying to establish, but at the moment it is not the deciding factor when exercising the powers under the Mental Health Act 1983 to compel detention.

It is also important to bear it in mind that Parliament has provided for a very long time the power to override capacity and detain compulsorily, most recently in the Mental Health Act 1959 and the Mental Health Act 1983, which is the Act that we are debating now. I pause to point out that, in both of those years, the Government of the day was a Conservative Government who clearly felt, as a matter of principle, that there were occasions when it was right to override somebody’s capacity and detain them against their will for compulsory treatment. If people now want to debate the principle of doing that, let us have that debate, but I have heard no arguments from the Opposition as to why we should change the present position.

I have briefly reviewed why such powers were felt to be appropriate in 1959 and 1983, and why we still think they are appropriate today. I think that the less good argument is a paternalistic one; the argument that we the parliamentarians and we the psychiatrists think, “This is good for you, whether you like it or not. It is a matter of your safety or public safety and we should do this to you.”

There is a subtler argument. If a person is presenting with a potential mental disorder and is saying, “I refuse to have treatment,” to what extent is the refusal to have treatment part of the symptoms and the outward emanation of the mental disorder? That is why I said in an intervention this morning that psychiatrists were in a particularly difficult situation in making these very, very difficult judgments on our behalf. We give them the power and I think that we have an obligation to back them when things go wrong, as they have done in a high-profile way on a number of occasions and no doubt will again in the future. That is the question of capacity.

Some have argued—this is in the alliance’s document, too—that the threshold for compulsory detention should be capacity. If a person has capacity and says, “No, I refuse to have treatment,” there should not be a power to detain them compulsorily. That brings us to the quote that my right hon. Friend the Minister has used several times from the British Psychological Society about letting them go even if they might be a danger to themselves and to other people.

Such a change would be a radical shift in the present state of the law and a very dangerous one. The alliance draws back from that and says instead, “How about impaired decision making as an additional test that is a threshold for compulsory detention?” It describes that as a less demanding test and a “softer option” than mental capacity. Clearly, it recognises that mental capacity as a threshold would be very dangerous, but that this provision is something additional to what the law requires at present; it is a meaningful test. As the Minister said, some people clearly will not reach this threshold and will be turned away, even though they are presenting in such a way that many people would think that they ought to be treated even if they will not consent to it.

So I hesitate to say whether we should have an additional test and I look, then, to where we are with the words before us today. The explanatory notes to the Bill say that

“there is no precedent for this provision in legislation in England and Wales”.

However familiar psychiatrists are with such a phrase, interpreting it among themselves and in their assessments of patients, it is not something which in England and Wales has legal meaning or of which there is legal understanding such that we can all say that we are confident what the outcome of adopting such a test would be.

The alliance’s briefing says that we can now lookto an Act in Scotland—the Mental Health (Care and Treatment) (Scotland) Act 2003—which says that

“a patient cannot be brought under the Act unless his ability to make decisions about his treatment is deemed to be significantly impaired as a result of his mental disorder.”

I immediately point out that that wording is different from the wording in our Bill, so even if anyone had evidence of how the changes have been effected in Scotland—they do not yet, because it is too soon to tell—it still would not be a great guide for us, because it is a different test.

The alliance quotes the British Psychological Society in a different context—its evidence to the Joint Scrutiny Committee back in 2004. In its submission, the society says that it notes that

“the Human Rights Act legitimises such compulsion only in the case of ‘persons of unsound mind’. As psychologists, it is axiomatic that being ‘of unsound mind’ equates to being significantly impaired in decision-making—in this case being harmfully and significantly influenced by the mental disorder.”

I think that we are being in a sense conned. It is being said to us that it is axiomatic that if a person says that they want to commit suicide, they must have impaired decision making and therefore, “Don’t worry. We will still detain them.” However, as the Minister has warned us time and again, that is not necessarily the interpretation of the practice that will follow as a result of adopting this test, so I for one am extremely hesitant about accepting it.

My last word on the alliance’s briefing is this. Atthe end, it helpfully refers us to the world view about what good legislation should be. It says that theWorld Psychiatric Association approved at its general assembly on 25 August 1996 a statement of its ethical standards. The briefing says:

“Article 4 states ‘When the patient is incapacitated and/or”—

incidentally, the “and/or” is important—

“unable to exercise proper judgment because of a mental disorder, the psychiatrists should consult with the family and, if appropriate, seek legal counsel, to safeguard the human dignity and the legal rights of the patient. No treatment should be provided against the patient’s will, unless withholding treatment would endanger the life of the patient and/or those who surround him or her. Treatment must always be in the best interest of the patient.’”

I happen to think that the Government’s view of what this law should say is closer to that statement thanwhat clause 4 includes in the Bill as a result of the amendment in the House of Lords. We may not all necessarily be reassured that that good statement is completely covered by the Bill. Like the hon. Member for Southport, I want to continue to consider whether some other amendment could reassure everybody that the use of the powers will be interpreted in accordance with that statement of principle. We may be able to have a debate about that when we discuss clause 10, but, for the moment, I do not think that this clause should stand part of the Bill.

Rosie Winterton (Labour, Doncaster Central)

Obviously, this has been a full debate, and I want briefly to pick up on a few points made by hon. Members.

The hon. Member for Southport rightly said that there is a difficulty in adopting a test such as that which is proposed, because we are all clear that we do not know how it would work; there is consensus that we do not know what the effects would be. Some hon. Members have said, “It is used in Scotland, so we should use it.” As legislators, we must make the decision on the basis of the evidence before us.

We should ask what we know the effect will be. We do not know, and merely to say that something happens in Scotland should not be our approach. We know various things, but as the hon. Member for Southport said, we do not know very much about this extra test—it is a leap in the dark. My hon. Friend the Member for Stockport said that the element of confusion is enormous, particularly in respect of the Mental Capacity Act 2005.

We are further taking away clinicians’ discretion to decide whether a person poses a risk to themselves or to others. Another test is being put on top of that, and it will mean that certain people will not be able to get treatment. Everybody is agreed on that. The British Psychological Society says that the number involved will be small. The hon. Member for East Worthing and Shoreham said that many people would not necessarily need to be detained if such a test were included. The figures cited vary from very few to quite a lot, but as my hon. Friend the Member for Stafford said, differences also exist within the Mental Health Alliance about whether the provision on impaired decision making should be included. The Royal College of Nursing has said that to include it would be wrong because certain people would not get treatment.

I ask Opposition Members to consider the fact that they do not know the number of people who will not get treatment, although they know that we will have to say to some people, “I am sorry but the impaired decision-making test overrides the test of whether somebody is a danger to themselves or to others. Even where someone is a danger to themselves and to others, they cannot be detained because they do not have impaired judgment.” This a matter of numbers, but let us make no mistake: the numbers exist. It is wrong for us to change the current position and do something that we all know will lead to fewer people getting treatment. That is why I ask the Committee to reject clause 4.

John Pugh (Liberal Democrat, Southport)

Will the Minister help me with a slightly tangential point? Are the conditions for compulsory admission for treatment identical in every respect to those for admission for treatment? Once conditions are met, cannot a person simply be admitted but treated in whatever way it is decided that they want to be treated?

Rosie Winterton (Labour, Doncaster Central)

Again, there is a problem with the test. In many cases, treatment is given to people who started off with impaired judgment, but if an individual’s judgment became less impaired and that person went before a tribunal and on that particular day the condition had changed, it would override the danger to themselves or others. That must be remembered about the test. The numbers are there; they range from very small numbers of people to larger numbers who, as the hon. Member for East Worthing and Shoreham said, would not be detained as a result of this change. I therefore ask hon. Members to think carefully about making such a change.

Clause 5

Rosie Winterton (Labour, Doncaster Central)

I beg to move amendment No. 17, in clause 5, page 3, line 13, leave out from ‘is’ to end of line 14 and insert

‘appropriate in his case, taking into account the nature and degree of the mental disorder and all other circumstances of his case.”’.

Anne Begg (Labour, Aberdeen South)

With this it will be convenient to discuss the following: Amendment No. 59, in clause 5, page 3, line 13, leave out ‘likely’ and insert ‘intended’.

Government amendments Nos. 19 and 20.

Rosie Winterton (Labour, Doncaster Central)

The purpose of amendment No. 17 is again, I am afraid, to change what was put into the Bill by the other place. It will restore the appropriate medical treatment test to its original form and once again remove the so-called treatability test that was reinstated in another way in the other place. While the amendment will change the position of the House of Lords, amendment No. 59 is an attempt to compromise between the two. Amendments Nos. 19 and 20 restore the changes that we wish to make to the test that second opinion appointed doctors must apply when deciding whether to authorise certain treatments.

The so-called treatability test is one of the criteria for detaining people for medical treatment, if their medical disorder is categorised as either psychopathic or mental impairment. It requires the doctor recommending detention to state that treatment is likely to alleviate or prevent deterioration in the patient’s condition. The treatability test is not one of the criteria for detaining patients categorised as having a mental illness or severe mental impairment. In other words, it is not one of the criteria for detaining the vast majority of patients, either under the civil system in part 2 of the Bill or the provisions in part 3 relating to offenders.

The current wording derives from the Mental Health (Amendment) Act 1982. The origins of the treatability test go back to the 1959 Act and the Percy commission, which preceded it. At the time, it was based largely on the notion that society owes a greater duty to protect people with mental illness or more serious learning disabilities than it does to those suffering from psychopathic disorders or less serious learning disabilities. The idea was that those in the former groups might deserve to be protected by being housed in a hospital even if their disorder could not be expected to improve as a result of treatment.

Over time, attitudes have changed, and we no longer judge the value of the treatability test by those criteria. The debate now is about whether we should persist in talking about the concept of treatability at all, given what we know now about the options for treating people, and about whether it is right to have a test that requires clinicians to predict whether treatment is likely to have a beneficial effect before they can detain someone. For the Government, the salient questions are: does the test help people to get treatment, whether voluntary or compulsory? Does it help clinicians to treat people? Does it provide the necessary safeguards for patients that cannot be provided any other way? Those are the questions that we are addressing at the moment.

Treatability is not the sole bulwark against non-therapeutic detention; there are other criteria. In fact, the treatability test in the Bill does not even apply to those detained for assessment—nearly half of all detentions under the Mental Health Act—and it does not apply to the large majority of the rest until after they have been detained. The test cannot guarantee therapeutic benefits. No one can guarantee that treatment will work. Appropriate medical treatment, which we want to introduce, does not mean that people can be locked up without treatment. That is precisely why the Bill states that appropriate medical treatment must be available. Of course, it would be wrong to detain people for treatment without actually offering them any, but the Bill does not require or allow that.

The problem with the treatability test is that it has stood in the way of a number of people in need of treatment. It has had quite a pervasive effect in mental health services. Leading forensic psychiatrist Professor Tony Maden summed it up when he wrote in a letter to The Guardian recently that the treatability test

“was included in the 1983 Act for the best of intentions, but proved a disaster in practice.”

The key to that disaster is the way in which the test has contributed to a culture in which certain groups of patients, particularly those with personality disorders, are too often simply written off as untreatable without regard to whether potentially effective treatment is available. Such treatment is increasingly available but its development is being impeded by a culture, fostered by the treatability test, of dismissing people as untreatable when their needs cannot be met by general psychiatric services.

Curiously enough, two committees of the British Medical Association wrote to me recently suggesting that personality disorders be excluded from the scope of the Bill because they are untreatable. That is the kind of myth that has pervaded services and service delivery because there is a treatability test. It has led to people being turned away from services or discharged after a period of crisis intervention without proper follow-up. It is important to recognise that because of the changes that have been made in the treatments that are available, we need to ensure that nothing stands in the way of getting treatment to people who can benefit from it.

A sad result of people being turned away from services was highlighted by Baroness Corston in her recent report about the prison system. She found that many women with personality disorders end up in the prison system rather than being diverted into a hospital to get treatment. She welcomed the changes that weare introducing in the Bill because they mean that services can be developed and people can be more appropriately placed.

Meg Hillier (Labour, Hackney South and Shoreditch)

My right hon. Friend may not be aware that I am representing the family of a mental health patient who had been in and out of the Homerton hospital in my constituency for two years, being treated for suspected schizophrenia. On 7 July last year, he murdered a man by pushing him under a tube train at Highbury and Islington station. Everyone, including the defence counsel, believed that he would be put in Broadmoor for the rest of his life under sections 37 and 41 of the Mental Health Act 1983, but to our surprise, Broadmoor professionals have judged that because he has a personality disorder he will not be put in a mental hospital, but will go to prison. Tomorrow, he will be given a prison sentence, yet he has a clear mental health problem.

We must remember the people involved—not just the murder victim and his family, but the family of the patient and the patient himself. I have sat through two and a half days of debate listening to legal points being made, but we are dealing with people. My constituent’s mother comes to see me in great distress; her distress, and that of her family and the patient, will not be any less if he is put in prison.

Rosie Winterton (Labour, Doncaster Central)

My hon. Friend has a very great understanding of some of the problems that have been caused by the treatability test, especially because of her constituency work in this case. I am grateful for her support for our view, which is reflected by others, especially in Jean Corston’s report, that that test has stood in the way of people getting treatment. It has also meant that people end up in the wrong place, with tragic consequences.

Another extremely difficult and sensitive consideration is that the treatability test is also a perverse incentive for people not to comply with treatment. Tony Maden, a forensic psychiatrist, has spoken to me about the fact that in Broadmoor, for example, lawyers have advised their patients not to engage with treatment because if it can be proved that they are not treatable they have to be released. Naturally, a mental health review tribunal would not accept that, but nevertheless there is that perverse incentive at present because of the treatability test, and people can quarrel about whether they are detainable in sometimes very difficult circumstances.

Tim Loughton (Conservative, East Worthing and Shoreham)

We have heard this story before. On Monday we interviewed Lucy Scott-Moncrieff, who is a member of the Law Society’s mental health and disability committee, and we have spoken to other lawyers and experts on the matter. She said categorically that she does not believe that it is a problem and that she could count on the fingers of one hand the number of inmates of Broadmoor who, in20 years, have been deemed untreatable. Of those, only one was let out, and that was against the doctor’s recommendation. The same line came from Alan Franey, the chief executive of Broadmoor for many years, who also supports our position. If the Minister has evidence, she needs to produce it rather than come up with wild accusations that seem to have no basis in fact or reality.

Rosie Winterton (Labour, Doncaster Central)

I understand that the hon. Gentleman raised the matter on Monday and that the witnesses said that they had heard of cases in which that happened.

Tim Loughton (Conservative, East Worthing and Shoreham)

They did not. The Minister was not there, she does not know. I am telling her that theydid not.

Rosie Winterton (Labour, Doncaster Central)

I am absolutely prepared to accept that I may have heard incorrectly, but I was led to understand—it is certainly something that I have been told—that there is such an incentive. The hon. Gentleman actually acknowledged even in the story that he just told that there is an incentive to say, “I am not treatable.”

Charles Walker (Conservative, Broxbourne)

One person in 20 years.

Rosie Winterton (Labour, Doncaster Central)

One person can be one person too many.

Meg Hillier (Labour, Hackney South and Shoreditch)

The point is not about people being let out, but about people being let in in the first placefor the treatment that they need. Too many people, particularly black men, and too many of my constituents, are in prison rather than in mental health hospitals or long-stay institutions, which are what they need, because of that approach.

Rosie Winterton (Labour, Doncaster Central)

It is also important to remember that some offenders might well prefer to be in a prison setting because removal to a special hospital, for example, has entirely different consequences. There is therefore bound to be an incentive for people to say that they would rather serve a sentence than have treatment. The implications are extremely serious.

Tim Loughton (Conservative, East Worthing and Shoreham)

The Minister is again guilty of talking highly hypothetically. If she now wishes tobase entire legislation on one person, that is quite extraordinary. Last year, I visited the dangerous severe personality disorder section of Broadmoor, which is relatively new. It was full of people who had been in prison and were given the opportunity to come to a hospital environment to be treated and looked after. All of them were there by choice, and they all preferred that setting to being in prison, which is entirely contrary to what the Minister has just said.

Rosie Winterton (Labour, Doncaster Central)

I think that the hon. Gentleman will accept—it is almost universally accepted—that there are people with personality disorders who are in prison because of not being taken into a hospital setting.

James Duddridge (Conservative, Rochford and Southend East)

Will the Minister give way?

Rosie Winterton (Labour, Doncaster Central)

In a moment.

For some of those people that is because they would prefer to be in the prison system because they will not be detained there as long. That is a real issue once a sentence comes to an end.

James Duddridge (Conservative, Rochford and Southend East)

The Minister has answered my point.

Rosie Winterton (Labour, Doncaster Central)

Thank you.

It is important that we recognise that the current situation has in some instances prevented services from being developed and turned some people away from services as a result, and that it also provides a perverse incentive to make certain arguments in front of tribunals. It is because of those problems that appropriate medical treatment is much better.

The change will get rid of the incentive to resist treatment and remove all trace of the language of treatability. At the same time, it will give patients a safeguard that is every bit as good—better, in fact, because no one will be able to be detained for medical treatment unless they are to be offered treatment thatis appropriate for their disorder and for them as individuals. The hon. Member for Tiverton and Honiton and I discussed that issue this morning, particularly when considering the situation for people with autistic spectrum disorder. The psychiatrist whom the hon. Lady brought to meet me said that she knew of people with autistic spectrum disorder and Asperger’s syndrome who had been turned away from services and told that they were untreatable, and so she felt that there was a lack of service provision for them. We needed to ensure that the development of services was not an excuse that could be hidden behind as regards the Mental Health Act and the treatability test. I thought that that she gave a good example of why that had caused problems, in this case not just for people with personality disorders, but for those with ASD and Asperger’s.

Sandra Gidley (Liberal Democrat, Romsey)

I am trying to follow the argument that the previous law somehow led to a barrier to the development of services. Surely if a condition was treatable in some parts of the country, treatment not being available in a particular area would not be a barrier to detainment—or it should not be. In fact, is this not a Government problem in terms of not developing the appropriate services?

Rosie Winterton (Labour, Doncaster Central)

No, I am afraid that the approach has led to a culture of saying that if a condition is not treatable, there is no point in developing services to try to treat it. I went to east London recently, where I met an impressive woman psychiatrist who said that, for the first time—she had been there some 25 to 30 years—services were being developed for people with personality disorders. The Government have tried to pilot several schemes to encourage the development of services, but there is no doubt that the test has been a barrier. The psychiatrist with the hon. Member for Tiverton and Honiton said the same thing.

We are trying to get rid of that test, as we need to make clear that certain criteria must be met under mental health legislation. First, does the person have a mental disorder? Secondly, are they a risk to themselves or to others? Thirdly, does that treatment have to be given in a hospital setting? Fourthly, is appropriate medical treatment available for an individual? We are clear about what counts as appropriate medical treatment. We are not just asking whether treatment is available somewhere at some point in the future, or whether treatment could be provided, with wishful thinking; it must be a treatment that suits the individual at that time. For the first time, the clause puts that argument on a good legal footing, and it would enable the tribunal to look at whether treatment is appropriate for the individual. That is what the psychiatrist whom the hon. Member for Tiverton and Honiton brought to meet me this morning said. She spoke about the very issue of appropriate medical treatment and how important it is that we make that change, so as to give that legal basis—in this case, to help with and encourage the development of services. Once we overcome the idea that certain conditions are untreatable in a culture, we can move to a whole different level.

Angela Browning (Conservative, Tiverton and Honiton)

The Minister will know that a great deal of our debate has focused on the more critical end of treatment—she mentioned crisis management and so on—but it is actually in the stages prior to that point that services are at a far lower level. Whatever the Bill determines, appropriate treatment needs to be provided, because many people will still end up in crisis in these situations, purely on the basis that sustained and appropriate treatment was not available to them on the path that they took to reach the point that she describes. I hope that this Bill and her intentions will encompass appropriate treatment in the community and will be shared across agencies.We know that mental health patients often need multidisciplinary teams often need to address the problems of mental health patients at a much lower level.

Rosie Winterton (Labour, Doncaster Central)

The hon. Lady is right. That is why the psychiatrist whom she brought to see me this morning welcomed our plans for supervised community treatment and said that it is important that we have those services in the community and do not just wait until people get to crisis point. That is a real issue. What has happened with treatability is that people get to crisis point because there has not been the service development that we would like to see.

James Duddridge (Conservative, Rochford and Southend East)

If I follow the Minister’s logic, she is saying that a category of people is going untreated because of the peculiarities of legislation, and that although more people will be treated overall, there will remain a category that will be untreatable. I was going to ask her to put a number on both figures for those who would be receiving treatment but do not currently receive it and those whom I would term the untreatable. Perhaps there are none.

Rosie Winterton (Labour, Doncaster Central)

The hon. Gentleman needs to recognise that the problem at the moment arises because of the treatability test and the pervasive culture that says, “These people are untreatable”. For example, my hon. Friend the Member for Hackney, South and Shoreditch mentioned her constituent who was told that there could not be a particular disposal in terms of the court because his condition was untreatable. We hear about that time and again. A woman came to see me in respect of the Mental Health Alliance lobby and said, “Rosie, I have a multiple personality disorder and keep being told I am untreatable.” I said, “That’s exactly why we want to make the changes that we are trying to make at the moment.”

At the moment, many people with personality disorders, for example, are experiencing exactly what my constituent experienced. It is important that, overall, in our mental health legislation we try to deal with that. We want to introduce some supervised community treatment to ensure that people get treatment when they need it. This is about the development of services in the community. However, if the untreatable label is hanging over things the whole time, it is difficult for those services to develop in the first place. That is why we want to replace the treatability test with an appropriate medical treatment.

The hon. Member for Rochford and Southend, East asked about what is untreatable. Again, that was something that the psychiatrist introduced to me by the hon. Member for Tiverton and Honiton mentioned and the Committee discussed this morning. The psychiatrist felt that the problem was that the treatability test was interventionist, like giving an individual an injection or medication, and that people can come to associate that with treatability. She said, “I can’t cure Asperger’s syndrome, but I know that there are things that I can do to help.” Some of those things even boil down to ensuring that somebody is properly nursed and under nursing care.

When we talk about untreatability, it is important to recognise that some people go through a crisis and, even in the course of detention—this is where we have a big problem with the amendment made in the Houseof Lords—it is not always possible to say that theywill immediately get better. Some people in such circumstances may deteriorate to start with and get better after that. In a sense, the treatability test has got in the way of good care because it implies something much more active and sometimes it just might be appropriate for the individual to have, as I have said, good nursing care—observation and somebody to talk to at a particularly difficult time—as opposed to what some regard as interventionist treatment.

Angela Browning (Conservative, Tiverton and Honiton)

This may be an unscientific, layman’s approach, but there seems to be a tendency to move away from in-patient care. Having spoken to GPs, I know that they would welcome being able to refer patients to something that I shall describe as sanctuary—a safe place in which there may be support of a non-invasive nature. A lot of our mental hospitals are now predominantly admitting people in crisis, which makes the environment inappropriate for people with acute depression, and that would also apply to my Asperger group.

When the Minister talks about appropriate medical treatment, can she expand on what it encompasses? A safe place of sanctuary that is supervised and without lots of medication or invasive procedures is to my certain knowledge not out there. It is certainly not out there in sufficient quantity for it to have any impact on the definition. Can she expand on that?

Rosie Winterton (Labour, Doncaster Central)

It is important to say again that it is very difficult for us to predict in advance what the appropriate treatment would be for every single individual. It has to be up to the clinician to decide what is best. However, if the clinician was detaining somebody, they would need to be able to say whatwas appropriate for that individual. That is a very important change. From the treatability tests, they must be able to say that appropriate medical treatment is available and that it meets the needs of that individual. As the hon. Lady said, if meeting the needs of an individual does not entail direct intervention and that keeping them safe is the right thing, then that is what should be available. The problem we have at the moment is that the treatability tests lead people in the other direction and that is why we want to get rid of them.

James Duddridge (Conservative, Rochford and Southend East)

Just for the sake of clarity, what precisely is medical treatment as opposed to simply treatment? I have noticed that a number of people, including the Minister and myself, have been bandying the two around almost interchangeably. Clearly, they are different, but I am not sure how.

Rosie Winterton (Labour, Doncaster Central)

Confusingly, the term that is used in clause 5 is “appropriate medical treatment”, yet the title of the clause refers to “appropriate treatment”. I prefer to talk about appropriate medical treatment because that is what it actually says. The parliamentary draughtsman would say that “appropriate treatment” is fine for the name of the clause, but our proposal refers to “appropriate medical treatment”.

Ann Coffey (Labour, Stockport)

I understand that the words “medical treatment” include medication, nursing care, habitation, rehabilitation as well as psychological treatment and support. It is good that the Government have introduced psychological treatment as part of medical treatment. Often psychological intervention can be much more effective than simply giving pills to somebody.

Rosie Winterton (Labour, Doncaster Central)

That is one of the reasons why we have said that that kind of treatment should be included. However, it is very difficult to predict from here what will be right for every individual in terms of medical treatment.

James Duddridge (Conservative, Rochford and Southend East)

Such a definition of medical support is very useful, particularly as it implies broad support. The reason why I was struggling between the two definitions is that this is at such a low level. Everyone should deserve support, so everybody should be treated. Therefore, I do not really understand what the problem is. Perhaps I did not explain myself first time around, but I was saying that the definitionof medical support was helpful, because it included support in general. Surely everyone deserves such support. People can be given support; as a definition, it implies a low level of intervention. I do not understand why there would be a problem with the Bill as it stands after coming from the other place.

Rosie Winterton (Labour, Doncaster Central)

The problem is that of effectively reinstating the treatability test. That is why it uses the same barriers that have existed from the beginning. It is saying that the treatment is likely to alleviate or prevent deterioration in a patient’s condition. I do not have the wording in front of me. The difficulty is in predicting that treatment will alleviate or prevent a deterioration. One of the problems is that we then become mixed up not only in proving in advance, but in the difficulties caused when talking about treatability and curing.

I shall move on because I want to address amendment No. 59. I am grateful to my hon. Friends the Members for Rhondda, for Bridgend and for Stockport for tabling it. It attempts to define appropriate medical treatment as treatment that is intended to do what I described as the difficulty—to alleviate or prevent a deterioration in someone’s condition. The amendment tabled in the other place would restore the treatability test, which is treatment that is intended rather than likely to alleviate orprevent deterioration in the patient’s condition. The amendment is not dissimilar to the amendment tabled by the Government in another place to make explicit the purpose of treatment for mental disorder. Unlike the Opposition, whose amendment appears in the Bill as it is currently drafted, my hon. Friends have looked closely at whether there is a way to avoid some of the perverse incentives to which I have referred.

My main caveat is that there is more to appropriate medical treatment than merely a substitute for the treatability test. It is also intended to provide a new safeguard for patients, namely, that medical treatment must be appropriate to them as individuals. I am slightly worried that the amendment would not cover that, so I find it difficult to support it today. However, I shall certainly take it away and think further about it, particularly if my hon. Friends can expand a little more on exactly how they have moulded it and their interpretation of it.

As for Government amendments Nos. 19 and 20, I believe that no one has anything to fear from the changes that we wish to make to the tests to be applied by second opinion approved doctors when authorising treatment under part 4 of the 1983 Act. We do not expect the changes to make a material difference to what SOADs can and will authorise, but that does not make them unimportant. Our amendments make explicit the breadth of what SOADs must consider but, in so doing, they will not dilute the current test.

In summary, Government amendments Nos. 19 and 20 would merely reinstate wording that more accurately reflects the work of SOADs. By contrast, Government amendment No. 17 corrects what would otherwise be a serious mistake and a missed opportunity to improve the criteria for detention under the Act.

I would like to hear my hon. Friends’ arguments, but amendment No. 59 looks like a helpful suggestion of compromise and one that I will reflect on further.

Chris Bryant (Labour, Rhondda)

It is a delight to serve under your chairmanship, Miss Begg. I normally sit next to you in the House, where you sometimes run over my foot, so it is nice to be at a slightly safer distance from you this afternoon. I would like to say a few things before I specifically talk to the amendment in my name and those of my hon. Friend the Member for Bridgend, my near neighbour, and of my hon. Friend the Member for Stockport.

First, a lot of stereotypes of different people’s views seem to be floating around in the debate. Some people stereotype the Government’s view as wanting to lock up anybody who has any kind of mental disorder whatever. Sometimes even the hon. Member for East Worthing and Shoreham slips slightly towards suggesting that the Government have such motives. In his calmer moments, I know that the hon. Gentleman would know and say that that is not what the Government intend at all. Others would seem to suggest that those with a libertarian point of view believe that absolutely nobody, ever, in a free society should be detained under a mental health Act and that people should only ever be detained under the criminal justice system for things that they have done. Both are stereotypes that we should eschew. I do not believe that anyone in the Committee holds either view.

If that is true, we must believe that some people ought to be detained under mental health legislation by virtue of their mental disorder. It must also, therefore, be clear that there must be some form of treatability test. I say some form of treatability test, because as we have already removed the two concepts of mental impairment and psychopathic disorder from the 1983 Act, it seems clear that the old treatability test cannot survive. Nor, for that matter, do I believe that there should be a curability test, which is what some people understand the treatability test to be. We cannot simply say that because we cannot cure A, B or C conditions, we ought not be able to detain somebody. What we may believe to be incurable today may not be what we believe to be incurable or—I hope—curable in 10, 15 or 20 years’ time.

The hon. Member for Tiverton and Honiton made many references to advances in the understanding of autism. I believe that there will be significant changes in how we understand personality disorders in the next 20 to 30 years. It is probable that in the past we have not invested enough in investigating the aetiology of such conditions. We probably need to do more about that, which I hope will pay dividends.

However, I am left with some very importantthings that we need to consider. Yesterday I spent a considerable amount of time with a lot of psychiatrists—I know that that does not sound right, but I am sure that hon. Members will understand what I mean. Some of the psychiatrists maintained that the way the Government were moving with the clause was inappropriate. Their argument was that the Government were being driven by some psychiatrists out there trying to drum up business for themselves, particularly high-profile business, running new clinics to deal with people with personality disorders. I had to say to my psychiatrist friends that I thought that that was really rather good news—it is good if people are saying, yes, here is a whole area of psychiatric treatment that we have not yet done enough work on. If there are psychiatrists—in fact, more likely psychologists, in this area—who are trying to explore the recesses of how people come to develop or acquire personality disorders and how those disorders can be treated, then that ought to be wholly welcomed.

I also think that, as my hon. Friend the Member for Hackney, South and Shoreditch in a sense pointed out in her intervention on my right hon. Friend the Minister, the way in which the criminal justice system overlaps with the mental health system is an important factor. In too many cases, the victims of crimes that were perpetrated by people with personality disorders are let down by one or other system because they are not kept informed about what is happening to the people who committed those crimes.

My hon. Friend mentioned a case in which the criminal justice system went in one direction and I referred on Second Reading to another in which the actress Lynda Bellingham had exactly the opposite experience. The courts said that if she withdrew the charges against the person who had thrown a fire bomb through her window because that person had a significant mental disorder, then the judge would commit him to a hospital. However, in the event, the moment she withdrew the charges, the court decided that it could not do that because the gentleman had already been in hospital for some time. He went on to cause further problems to Lynda Bellingham and on top of that took his own life only a week later.

There are clearly instances in which the mental health system and the criminal justice system do not interrelate appropriately for the victims of crimes perpetrated by people with mental disorders or in the interests of those people themselves. There are even cases in which there is a direct incentive for somebody to say to his lawyer, “I would prefer to go to prison than into the mental health system, because I know that I will be out in two years’ time when my sentence comes to an end, even though the environment might not be a therapeutic one”. He might, of course, gain some benefit from the services that are provided to him in prison. That is an important issue that we need to bear in mind.

Rosie Winterton (Labour, Doncaster Central)

It is important to remember that. I take on board the point made by the hon. Member for Broxbourne about the release of the wrong person. The fact that the majority of restricted patients detained under the category of psychopathic disorder claim untreatability at some point during their detention is a reminder of that important point.

Chris Bryant (Labour, Rhondda)

Absolutely. The Minister is right. I would also make the point that even in respect of conditions that some people believe to be incurable and many believe to be untreatable, early intervention by the mental health services is of enormous value. Indeed, we touched in our debate on Tuesday on black African Caribbean members of the community, who are probably far too often detained in the mental health system for psychotic disorders. Many people have pointed out that the very late presentation of people in their mental disorder is one of the factors that leads to their eventual detention. If it were possible to ensure far more early intervention, with the appropriate treatment, we might be able to avoid the need for detention. The more that we as a society can avoid the need for detention, the better it will be in respect of the health of the individual and the costs to the state.

Angela Browning (Conservative, Tiverton and Honiton)

The hon. Gentleman mentioned costs right at the end of his sentence. It is very difficult to persuade service providers that a little investmentin people at a lower level, so to speak, saves a huge amount at the other end. In terms of human suffering it is almost unquantifiable.

Chris Bryant (Labour, Rhondda)

The hon. Lady is absolutely right. One of our difficulties in persuading mental health services to make that investment and indeed in persuading people to present is associated with the stigma that sometimes attaches to specific communities and individuals. It is a sad fact that a young gay man is six times more likely than a young straight man to commit suicide under the age of 16. By definition, those young people find it difficult to come forward to psychiatric services, because they already feel alienated from society. The more we can do to transform that situation, the better. It is in everybody’s interests. We are light years away from where we were 30 or 40 years ago, as I know from my own experience.

Madeleine Moon (Labour, Bridgend)

We have had discussions about early treatability; my hon. Friend has also mentioned the difficulty that people with personality disorders have had in accessing treatment and services. Does he agree that the whole point of the amendment is for the term “intended” to open up the potential for a lot of people to have treatment, which we hope will prevent long-term deterioration? It would mean that people would at least get access, albeit belatedly, to services that they would not otherwise have got.

Chris Bryant (Labour, Rhondda)

As is often the case, my hon. Friend puts far more eloquently than I would do the point that I was about to make. Before I get to the specifics of the amendment, I want to make a further general point. Even with what I hope will be the end result of the Bill, clinicians will sometimes make mistakes about whom to detain and whom not to detain. I wholly deprecate the fact that the print media in particular often plays at saying “Let’s search for the clinician who got it wrong” when somebody commits suicide or kills someone else after having been through the mental health system.

In my experience, everybody who works in the system copes with enormous stress and strain; the chaotic lifestyles of others descend on them on a daily basis, which can place huge pressures on them. They are wholly to be commended. I fear that the blame culture that sometimes surrounds the issues has made it difficult for people entering medical school to think about psychiatry as their future career. That is one reason why we still do not have enough consultant psychiatrists or enough people applying for vacancies. I hope that we will be able to transform that situation in the years ahead.

I like the Lords amendment in part, but I think that it has significant problems. It is in two parts; I shall deal with them in the wrong order, chronologically speaking. First, I shall refer to the second element of the amendment, which relates to

“treatment which is likely to alleviate or prevent a deterioration in his condition”.

As the Minister said, there are many cases in which one knows that the mere fact of somebody’s detention means that their personality disorder or other condition will deteriorate. That is a simple point of fact, because losing their freedom and their volition might well exacerbate their condition. In many cases, it is therefore difficult in the short term for a clinician to say unambiguously and without threat of challenge that the action taken will alleviate or prevent a deterioration in the condition. In the short term at least, it will almost certainly cause deterioration.

John Pugh (Liberal Democrat, Southport)

The Lords amendment does not refer to an immediate amelioration or worsening of the condition; it simply says that that will occur. It is therefore perfectly compatible with people being admitted and going on a downward spiral for a short period.

Chris Bryant (Labour, Rhondda)

I did not say “immediately”, so I was not seeking to misrepresent the Lords amendment. There are many cases in which it is uncertain how long that period might be. A lawyer would certainly be able to ask a tribunal, “Is the person’s condition going to get better in two, four, six or eight weeks?” That is the problem with the Lords amendment.

Another problem is that a person’s condition may have many different facets, and for that matter, many symptoms. A clinician may want to treat some of the symptoms and some of the conditions, althoughthe treatment may not be able rectify, in any sense,the underlying causes of those symptoms and the condition itself. That is why there might be value in exploring whether it would be better to refer to elements or symptoms of the condition, rather thanthe condition itself.

I have also tabled an amendment, along with my hon. Friends the Members for Bridgend and for Stockport—they are my friends—on the issue of likelihood. It is quite interesting that the hon. Member for East Worthing and Shoreham referred to the hope that, in the ordinary provision of treatment, one in three people would benefit from the treatment provided. However, the likelihood of treatment alleviating or preventing a deterioration in condition suggests a more than 50 per cent. chance. However, it is rare for any treatment to guarantee more than a 50 per cent. chance of doing either of those two things. That is why I do not very much like the word “likely”.

Sandra Gidley (Liberal Democrat, Romsey)

I understand that the amendment is well-intentioned, but it struck me that it is, to some extent, a guinea pig’s charter, because, increasingly, we must have an evidence base for what we do. If a treatment has had some proven benefit in some cases, there is an argument for accepting that. Surely, ifthere is a good intent but no proof that somethingever works, that opens vulnerable patients up to experimentation.

Chris Bryant (Labour, Rhondda)

The hon. Lady is an absolute genius; she foresaw exactly what I was going to say next. As a good Jesuit, she would know that intention must always include an element of likelihood, although likelihood is not predominant. I could not say that I intend to be good if I know for certain that what I do will not be good. There is always an element of likelihood in any degree of intention, but I want to shift us away from saying that people must provethe likelihood of ameliorating or preventing the deterioration of the condition towards considering intentionality.

Tim Loughton (Conservative, East Worthing and Shoreham)

I am following what the hon. Gentleman says; he is making a very good case. I am slightly enamoured of his amendment, as it contains a scintilla of the therapeutic benefit that we think is very important. However, what the clinician intends as appropriate could be a subjective judgment, and it is important in all aspects of medicine that there is an evidence base for their intervention. Would the word “intend” mean that the intention could be examined by a tribunal to ensure that it was reasonable from the point of view of its likely effect given the evidence base, because it is the evidence base that is important in respect of the point that he is making?

Chris Bryant (Labour, Rhondda)

I am fascinated; there are chinchillas, guinea pigs and all sorts in this debate—

Tim Loughton (Conservative, East Worthing and Shoreham)

Scintillas.

Chris Bryant (Labour, Rhondda)

I am sorry. The hon. Gentleman makes a good point and it is important. As I was trying to explain, if one intended to do something that was not in the interests of the patient, clearly one would not be intending appropriate medical treatment. Obviously, that must be judgable and verifiable on the basis of evidence according to treatment that has been provided to others. But the word “likely” on its own and ofitself suggests not the one in three benefiting fromthe treatment that is provided that is a common understanding of where medical treatment will be appropriate, but one in two. That is a very high hurdle for clinicians to have to overcome to be able to propose a detention. That is why I tabled the amendment.

I realise that what is most likely to happen is that the Government’s amendment will be taken first. If that amendment is carried, there will not be an opportunity to vote on my amendment. However, I hope that, as we move towards the debates on Report, the Minister will look at whether it is something that the entire Committee can support. It would relate not only to this clause, but to clause 8, where exactly the same words have been inserted by the House of Lords.

Debate adjourned.—[Claire Ward.]