Mental Health Bill [HL]

My Lords, the noble Lord, Lord Carlile, has, in a sense, moved a Committee-type amendment on Report. In that spirit he has asked for clarification of the law. I will give what advice I can tonight, but I also offer to write further to the noble Lord—and other noble Lords—as he has raised some interesting points that will inform later debate on the Bill. It may be helpful if I start by outlining the changes we intend to make by Clause 8 and the reasons for them. We are changing the definition of medical treatment in the Act primarily to reflect the fact that we are opening up the role currently played by the responsible medical officer to a wider group of professionals. We debated that issue just before the dinner break. Because of that change it no longer makes sense for the definition of medical treatment to refer to care, habilitation and rehabilitation ““under medical supervision””, as ““medical supervision”” in this context of a definition of treatment could be interpreted as requiring the supervision of a registered medical practitioner. As we have made clear, we want medical treatments that fall within the ambit of the Act to go beyond those that can be provided by or supervised by doctors. We are also taking the opportunity to make explicit that the definition of medical treatment includes psychological intervention. Practical examples of psychological intervention might include cognitive therapy, behaviour therapy and counselling. Questions have been asked about issues that arise from a range of physical conditions that can then give rise to mental disorders. Clearly, many of those disorders will be transitory and will pass with the physical disorder. So the question of using the Mental Health Act will often not arise. I say to the noble Lord, Lord Carlile, that my understanding is that A&E departments are well used to checking for instances of, for example, urinary tract infections and other common problems, which may potentially cause mental disturbance in older patients. If such an infection is found, treatment will be offered accordingly. But, clearly, when assessing patients in order to decide whether it is necessary to use the powers in the Mental Health Act, it is clearly important to consider whether their mental health problems are a direct consequence of a physical ailment. The fact that the mental disorder can be expected to be alleviated by tackling the underlying physical condition may be decisive in deciding whether to use the Act as there will be an effective and more appropriate alternative. Overlooking such factors is a matter of poor practice rather than the law. Conversely, I do not think that it should be assumed that it will never be appropriate to use the Act. It surely must depend on the particular circumstances of the case, the severity of the mental health problems the patient is experiencing, the persistence of the symptoms and the risk to their own safety and that of others. Our starting point is that if the person’s mental condition, whatever its cause, is putting them or others at risk sufficient to warrant detention in hospital for treatment, then there should be no arbitrary obstacles to the Act being used. As regards case law, I have been advised that in the 1995 case of B against Croydon Health Authority medical treatment for medical disorders can include a range of acts ancillary to the core treatment a patient is receiving. That can include treatment that is a necessary prerequisite to such treatment. Each case must be judged on its merits, but it would probably be a mistake to attempt to draw rigid lines and say that treatment for an underlying physical condition could never legitimately be considered as part of treatment for mental disorder. I turn to Amendments Nos. 10 and 75, which are equally interesting. It is clearly very important to ensure that ill, frail or vulnerable people being looked after in a hospital or care home receive satisfactory—more than satisfactory—care. In a sense, the noble Lord takes us back to the amendment moved by the noble Baroness, Lady Knight, in Committee, when she raised some important matters of concern. Noble Lords will know that I have agreed to meet the noble Baroness because, although we do not think that the legislative framework is wrong, she has identified matters which, if there is hard evidence, suggest an extraordinary failure in practice in some care institutions. We need to do very much better if the poor practice that she identified is in fact happening in either the NHS or care homes. The Mental Capacity Act has established in statute a clear and robust framework for actions and decisions to be taken for people who lack capacity to take decisions for themselves which would otherwise be unlawful. It provides a framework. Its purpose is not to set out what decision is or is not appropriate in any given place. On the relationship between medical treatment, mental health treatment and the confusion that the noble Lord describes between the Mental Health Act and the Mental Capacity Act, I will take that back and look at it to see whether issues need to be confronted. As I said, I shall write to him. Our initial reaction is that we think that the law is clear. The Mental Health Act provides for compulsory treatment for mental disorder. The Mental Capacity Act provides a basis for treatment of any kind for people without capacity to consent to it. However, as I said, I shall look further at the matter and, in the first instance, write to the noble Lord.