Mental Health Bill [HL]

moved Amendment No. 60: 60: After Clause 31, insert the following new Clause— ““Referral to Secretary of State by hospital manager After section 67 of the 1983 Act insert— ““67A Referral to Secretary of State by hospital manager (1) Where a patient who is admitted to hospital in pursuance of an application for admission does not exercise his right to apply to the Mental Health Review Tribunal under section 66(1) above, the managers of the hospital shall, before the expiration of the period for making such application, consider whether— (a) the patient lacks capacity to decide whether to make such an application; and (b) there is any good reason why such an application should not be made. (2) In considering whether there is any good reason why an application under subsection (1) above should not be made, the hospital manager shall have regard to the wishes and feelings of the patient so far as they can be ascertained. (3) Where the hospital manager reasonably believes that the patient lacks capacity and that there is no good reason why an application under subsection (1) above should not be made, he shall refer the patient’s case to the Secretary of State in order that he may consider whether to exercise his power under section 67 to refer the case of the patient to the Mental Health Review Tribunal.”””” The noble Earl said: My Lords, the Minister will remember that in Committee I tabled a very similar amendment to this one. The point at issue is whether there should be an extra degree of protection in the Act for those mental health patients who lack capacity and who therefore do not exercise their right to appeal to the mental health review tribunal. Every year there are about 45,000 detentions under Sections 2 and 3 of the Mental Health Act, which are the sections that enable a patient to make an immediate application to the mental health review tribunal. Yet it is extremely unlikely that any but a small minority of patients so detained have the capacity to make a tribunal application. For example, some of these patients will have learning difficulties that will have prevented them from understanding the nature and purpose of the tribunal. Others, by reason of their mental illness, will not have the capacity to apply for a tribunal because their depressive symptoms make them feel that there is no point in applying, or their delusional symptoms make them suspicious of the tribunal’s motives. Just taking Section 2 detentions, we know that in 2004-05 Section 2 was used more than 21,000 times and there were just over 6,000 tribunal applications. Therefore, about 15,000 people detained under Section 2 did not apply for a tribunal. We cannot tell how many of those 15,000 lacked the mental ability or legal capacity to take a decision on whether to apply, but even if only 10 per cent fell into that category—and that has to be a modest assumption—1,500 referrals still could have taken place, and almost certainly should have taken place, but did not. Hospital managers have a legal duty to ensure that suitable cases, where patients lack capacity, are referred to the tribunal. It is clear that many are not properly complying with that obligation. That is a very serious situation. When I raised this issue in Committee, the Minister said that she understood the point at issue, but she rejected the amendment on several grounds. In the first place, she reminded us that Section 68 already places a duty on hospital managers to refer a case to a tribunal where no application has been made in the first six months. Following this, adult patients are referred every three years, and children every year. She also pointed out that the Bill introduces the option to reduce these periods when resources allow. Her fear was that the amendment would lead to an immediate increase in tribunal referrals which may or may not be wanted by the patients concerned, and that it would force managers to assess capacity indiscriminately. The Minister will see that I have changed the amendment so as to place a duty on hospital managers to make appropriate referrals not to the tribunal direct but to the Secretary of State, who can exercise her power under Section 67 to refer the case to the tribunal. I say to her that this formulation is not designed to change the law; it is designed to help NHS trusts not to fall foul of the law. The case of R(MH) v Secretary of State (2004) clearly showed that hospital managers have a duty to refer appropriate cases to the Secretary of State with a request that it be referred to the tribunal. The noble and learned Baroness, Lady Hale, concluded the case by saying that, "““every sensible effort should be made to enable the patient to exercise that right””," to appeal to the MHRT, "““if there is reason to think that she would wish to do so””." The duty under Section 68 to refer all cases for a tribunal hearing where no application has been made after six months really is not a sufficient safeguard for this particular group of vulnerable patients. That certainly is the conclusion one can legitimately draw from the judgment in the MH case. Yes, it is indeed likely that the amendment may lead to an increase in tribunal hearings. But why is that? It is because these patients are currently being denied access to the tribunal. That hardly places the Minister’s position on the moral high ground. I agree with the Minister that hospital managers in general have no system to identify those detained patients who are incapable of applying to a tribunal; that is true. But the result of that is that many people are being denied the right to have their cases heard by a mental health review tribunal. There has been absolutely no guidance on this point from the Department of Health. It would be very good if the Minister were able to take this problem on board and think about how it might be put right if an amendment such as this is not acceptable to her. I beg to move.