Mental Health Bill [HL]

had given notice of her intention to move Amendment No. 56A: 56A: Clause 28 , leave out Clause 28 and insert the following new Clause— ““28 Authority to treat community patients (1) In section 58(3) of the 1983 Act, after ““patient”” insert ““who is liable to be detained under this Act””. (2) After section 58(3) of the 1983 Act, insert— ““(3A) Subject to section 62A below, a community patient who has not been recalled to hospital shall not be given any form of treatment to which this section applies unless— (a) he has consented to that treatment and either the approved clinician in charge of that treatment or a registered medical practitioner appointed for the purposes of this Part of this Act has certified in writing that the patient is capable of understanding its nature, purpose and likely effect and has consented to it; or (b) a registered medical practitioner appointed as aforesaid (not being the approved clinician in charge of the treatment in question) has certified in writing that— (i) the patient is not capable of understanding the nature, purpose or likely effects of that treatment; (ii) he has either no reason to believe that the patient objects to being given the treatment, or he does have reason to believe that patient so objects, but it is not necessary to use force against the patient in order to give the treatment; (iii) he is satisfied that the treatment does not conflict with a valid and applicable advance decision, or a decision made by a donee or deputy or the Court of Protection; and (iv) having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given. (3B) Where a patient who has been liable to detention under this Act has been administered medication for a mental disorder to which this section applies for less than three months prior to becoming a community patient, the period mentioned in section 58(1)(b) above shall be read to extend for no longer than one month beginning with the day on which the community treatment order is made. (3C) The Secretary of State may by order vary the length of the period mentioned in subsection (3B) above. (3D) Certification under subsection (3A) above may take place whilst a patient remains liable to be detained, but will not come into force until the responsible clinician discharges the patient from detention in hospital under the terms of section 17A(1) above.”” (3) After section 58(4) of the 1983 Act insert— ““(4A) Before giving a certificate under section 58(3A)(b) above, the registered medical practitioner shall consult two other persons, who have been professionally concerned with the patient’s treatment, but of those persons— (a) at least one shall be a person who is not a registered medical practitioner; and (b) neither shall be the patient’s responsible clinician or the approved clinician in charge of the treatment in question.”” (4) In section 61 of the 1983 Act (review of treatment)— (a) in subsection (1) for ““or 58(3)(b)”” substitute ““, 58(3)(b) or 58(3A)(b)””; (b) in subsection (1)(a) after ““20(3)”” insert ““20A(4)””; (c) in subsection (3) for ““responsible medical officer”” substitute ““approved clinician in charge of the treatment in question””; (d) in subsection (3), for ““or 58(3)(b)”” substitute ““, 58(3)(b) or 58(3A)(b)””. (5) In section 64 of the 1983 Act (supplementary provisions for Part IV), after subsection (2) insert— ““(3) In this Part of this Act, references to ““not capable of understanding the nature, purpose and likely effects of treatment”” are to be read in accordance with the test established at section 3 of the Mental Capacity Act 2005. (4) References to a donee are to a donee of a lasting power of attorney (within the meaning of section 9 of the Mental Capacity Act 2005) created by the patient, where the donee is acting within the scope of his authority and in accordance with that Act. (5) References to a deputy are to a deputy appointed for the patient by the Court of Protection under section 16 of the Mental Capacity Act 2005, where the deputy is acting within the scope of his authority and in accordance with that Act. (6) Reference to the responsible clinician shall be construed as a reference to the responsible clinician within the meaning of Part 2 of this Act. (7) References to a hospital include a registered establishment.”” (6) In section 119 of the 1983 Act (practitioners approved for Part 4 and section 118)— (a) in subsection (2)(a) leave out ““in a registered establishment”” and insert ““in a hospital or registered establishment or any community patient in a hospital or establishment of any description or (if access is granted) other place””; (b) in subsection (2)(b) leave out ““in that home”” and insert ““there””; (c) after subsection (2) insert— ““(3) In this section, ““establishment of any description”” shall be construed in accordance with section 4(8) of the Care Standards Act 2000.”” (7) In section 28 (Mental Health Act matters) of the Mental Capacity Act 2005 (c. 9), after subsection (1) insert— ““(1A) Section 5 does not apply to an act to which section 58(3A) of the Mental Health Act applies.”””” The noble Lord said: My Lords, I do not wish to debate this amendment further, except to make some closing remarks. I am obviously disappointed by the Minister’s reply. It is doubtful whether any thoughtful clinician, especially when undertaking the role of a SOAD, would take advantage of the scope of powers presented to him or her under the Government’s proposals. I urge the Minister to set aside the question of whether professionals should be able prospectively to authorise treatment on a patient recalled to hospital and consider the relative merits of the proposed models in terms of patient protection and practicability of administration. I hope that the Minister will think again and be willing to discuss this further with me and other noble Lords, perhaps bringing forward some appropriate amendments at Third Reading. I hope that this matter is raised again during the Bill’s proceedings here or in another place. [Amendment No. 56A not moved.]