Mental Health Bill [HL]

moved Amendment No. 9: 9: Clause 8 , page 4, line 29, leave out from ““substitute”” to end of line 30 and insert ““““drug therapy, nursing and also psychological intervention and specialist mental health habilitation, rehabilitation and care, for mental disorder and its consequences, under the supervision of the responsible clinician;””.”” The noble Lord said: My Lords, moving back into Mental Health Bill mode, I also speak to Amendments Nos. 10 and 75. These amendments refer to matters brought to my attention since Committee by a distinguished consultant physician in Surrey and a barrister colleague of mine. With Amendment No. 73, they mainly deal with issues arising from what has become known as the Bournewood gap. The three amendments are mainly intended to deal with two sets of circumstances; first, the provision of medical treatment to those who are mentally incapacitated—temporarily, in many cases, or permanently—but who are not suffering from mental disorder; secondly, persons who suffer from mental disorder and need non-mental health medical treatment. Those who have brought these matters to my attention say strongly—and, having considered the matter, I agree—that some clarification is needed in the law. The purpose of these amendments is to draw the matter to the attention of the Government, and to probe and, one hopes, secure a response from them, perhaps not this evening but in due course. It is important to distinguish mental health treatment from medical treatment, or ““treatment”” as used in the Mental Capacity Act 2005. It would be less confusing to use the term ““mental health treatment”” rather than ““medical treatment”” in the Mental Health Bill, reserving the term ““medical treatment”” for medical and surgical therapy and medical treatment going beyond mental health treatment. The complexity of the issue becomes self-evident on listening to that section of my remarks. In the Mental Health Act 1983, medical treatment refers to the treatment of the primary mental disorder and its consequences. Medical treatment for the treatment of purely surgical or medical conditions is not regulated by the Mental Health Act 1983. As an example, I refer to the case of St George’s Healthcare NHS Trust v S, a 1998 case that was reported at page 673 of Volume 3 of the All England reports of that year. In that case, it was held that a pregnant woman could not be forced to undergo a Caesarean section without her consent merely because she was undergoing compulsory psychiatric treatment under the Mental Health Act 1983. When one considers the facts of that case, it becomes evident that those providing the non-mental health medical treatment were placed in an extremely difficult position and had to make some extraordinarily complex decisions at high speed. Against that, in the case of anorexia and other eating disorders, compulsory feeding of all kinds is regarded as medical treatment under the Mental Health Act because it is correcting the malnourishment that is a direct consequence of the mental disorder causing the primary eating disorder. Conversely, the Mental Capacity Act 2005 does not provide authority for compulsory treatment for a psychiatric disorder. That statutory disorderliness is bound to cause difficulties for clinicians seeking to provide medical treatment, in a general sense, and mental health treatment, also in a general sense. Modern psychiatric treatment involves a range of modalities and is performed by a variety of mental health professionals. It is no longer confined to drug therapy, ECT and other traditional treatments. The term ““mental health treatment”” is preferable to ““psychiatric treatment”” since the range of modern therapies and multi-disciplinary skills is now much wider. However, if one was to replace ““medical treatment”” with ““mental health treatment””, many unpredictable consequential amendments to the Bill would be necessary and an amendment of the Bill along the lines of this amendment might well meet the need for clarification. Amendment No. 10 clarifies the definition of treatment in the Mental Capacity Act 2005 so that it is clear that it means an intervention performed by a registered medical practitioner, not merely an intervention by, say, a nurse in a nursing home providing a catheter or insulin. Amendment No. 75, which is tabled in my name and that of my noble friend Lady Neuberger, is self-explanatory. It ensures that patients receive the same standards of healthcare whether they are compulsory or voluntary patients and whatever the setting. I concede that these are difficult and complex issues. They are part of the consequences of separate legislation dealing with separate and difficult issues. However, it is clear from what I have been told by experts working in the field—clinicians and lawyers—that there is a need for clarification and I hope that the Government can answer the cry for help. I beg to move.