Mental Health Bill [HL]

My Lords, I support all that the noble Lord, Lord Carlile, said, and I do not propose to repeat those points. I would, however, ask the Minister to focus on a particular aspect of this issue when he replies. The Government have sought to respond to some of the concerns expressed in Committee by tabling amendments that would require the responsible clinician, if he is not a registered medical practitioner, to consult a medical practitioner who has examined the patient before a renewal passport is issued. To be clear, is it correct that consulting a medical practitioner is not the same as agreeing with that practitioner? What happens if the two professionals do not agree? What processes are there for resolving disputes of this kind in which, say, a doctor does not believe that there are valid grounds for a renewal passport and the responsible clinician does? If the responsible clinician remains in overall charge of the patient, is his or her opinion trumped by that of a doctor? If so, where does the government amendment make that clear? Who, in the end, takes the decision? Secondly, the concerns which I and others raised in Committee related primarily to professional expertise. Our worry was that renewal of the detention order is at least as complex a business as the original decision to detain—it is often more so—and therefore it cannot be right to allow for professionals who lack the necessary competencies to take the renewal decision. This concern has since been echoed by the Joint Committee on Human Rights following a case heard by the European Court. The key requirement from the human rights point of view is that the approval of the responsible clinician should depend for its validity on his competence to provide the objective medical expertise required by the convention. Either he has that competence or he does not. I continue to argue that it is essential for a medical practitioner to be intimately involved in the decision making. Initially the Government took a different view but they have now changed their mind. Do they now acknowledge that the Bill in its current form is not human rights compliant, and if so do they believe that their amendments put right the defect? It has been put to me by the British Psychological Society that we should on no account rule out the possibility of psychologists, with the appropriate training and experience, acting as the responsible clinician and being able to decide on their own account whether the person under examination meets the criteria for continued detention. In other words, the society does not accept that a doctor always needs to be involved. It would appear from the Government’s amendments that they do not now agree with that proposition even though they have argued for it in the past. But the issue raised by the BPS in turn begs the question of the competencies that would be required of anyone carrying the job title of responsible clinician or approved clinician. The Minister spoke about these at some length in Committee. One of the competencies will be, "““the ability to identify the presence or absence of mental disorder and the severity of the disorder””.—[Official Report, 15/1/07; col. 446.]" Can the Minister clarify that point? Will the competencies required of responsible or approved clinicians amount to an ability to meet the ECHR criteria for objective medical expertise? Was that what she was trying to say? If so, in what way will those competencies be evidenced and proven? Notwithstanding their amendments tabled here and the opinion of the Joint Committee, do the Government envisage a time when psychologists might be granted sole responsibility for determining a renewal decision? I welcome the fact that the Government have moved in the direction urged by many of us in Committee. However, some important questions have been left dangling and I am a little worried that if the government amendments are accepted as they stand, we will be left with some important uncertainties.