Mental Health Bill [Lords]

I speak in this debate as the Chairman of the Joint Committee on Human Rights and in support of our report on the Bill. The Bill is of major importance for the human rights of those with mental disorders, which is a highly vulnerable group, including the right not to be subjected to inhuman or degrading treatment, the right of persons of unsound mind not to be deprived of liberty save in accordance with a procedure prescribed by law, and the right to respect for private and family life. I know that the Government accept that this legislation must comply with our human rights obligations. The Secretary of State has certified her view that the Bill is compatible. My right hon. Friend the Minister helpfully wrote to me on the introduction of the Bill. She also wrote that the Government had conducted ““an ECHR audit”” of the Mental Health Act 1983, the principal piece of legislation amended by the current Bill, and that in respect of the 1983 Act they were"““not seeking to leave in place any provisions which we know or suspect to be incompatible””." While I commend the Government’s approach to human rights in drafting the Bill, there remain issues on which my Committee has a different view. We reported on the Bill in another place and amendments were made there, responding to some of our points. I am grateful for the Minister’s recent comprehensive response to our report, which we will publish soon. My Committee might report further, so it would be helpful to have a clear indication today of whether any of the amendments made in the other place will be accepted. Mental health law is highly complex, so it is important to set out the arguments behind the JCHR’s concerns, to ensure that the House is aware of those human rights considerations. We considered that, broadly, the Bill satisfies the criterion of"““objective medical evidence of a true mental disorder””" for psychiatric detention to be lawful. However, we had concerns over the broader definition of ““mental disorder”” in clause 1. Given its breadth, we believed that it was desirable to include the principles of non-discrimination and proportionality in the Bill. On Third Reading in the other place, clause 10 was added, requiring fundamental principles to be taken into account when revising the 1983 Act’s code. Those include ““minimising restrictions on liberty”” and ““avoidance of unlawful discrimination””. That was a welcome development, although it would be preferable to see those principles made directly applicable under the Act, rather than indirectly through the code. As it currently stands, clause 3, which was not supported by the Government, narrows the definition of mental disorder, so that people could not be considered to have a disorder for the purposes of the Act solely on a number of grounds: substance misuse; sexual identity or orientation, which we considered in our report; commission, or likely commission, of illegal or disorderly acts; and cultural, religious or political beliefs. That clause provides an extremely important safeguard. The Bill replaces the original test for detention of a person for treatment, which was that that treatment was"““likely to alleviate or prevent a deterioration of his condition””" with the new rule, that"““appropriate medical treatment is available for him.””" In strict convention terms, the JCHR saw no obstacle to that, although we noted the ethical concerns expressed by psychiatrists that they should not be custodians for preventive detention, but should be providing treatment of therapeutic benefit. Clause 5(3) reinstated a likelihood of benefit of treatment, and it would be a pity if the Government were to seek to overturn that. The JCHR had stronger concerns as to whether the ““appropriateness”” test was sufficient to ensure convention compliance for treatments without consent requiring a second opinion under section 58 of the 1983 Act, such as pharmaceuticals for mental disorder or electroconvulsive therapy. We also considered that forcible feeding and other treatments invasive of physical integrity such as ECT should be subject to the same second opinion safeguards. In her recent letter, my right hon. Friend the Minister said that she would consider that, which I welcome, and we urge her to implement our recommendations. On renewal of detention, rather than just the initial decision to detain, we shared the concerns of JUSTICE and the Council on Tribunals that the Bill provides for renewal on the report of a ““responsible clinician”” who need not be a doctor. That could mean that the decision is not in accordance with the need for objective medical expertise. Clause 6 prevents a responsible clinician from renewing detention without the agreement of a registered medical practitioner who has examined the patient. We regard that as an important protection, which conforms with Strasbourg case law, and we would be very concerned if the Government opposed this clause. In the ECHR case of JT, a patient claimed that she had no right to change her nearest relative, who was required to be informed when, for example, she made an application to a mental health review tribunal for a discharge from detention. Her nearest relative was her mother, who was living with a man whom the patient alleged had abused her. The ECHR concluded that the patient’s article 8 rights to privacy and family life were being breached, so the Government undertook to introduce legislation, first to enable a patient to apply for replacement of a nearest relative on reasonable grounds and, secondly, to prevent certain persons from acting as the nearest relative. The Joint Committee agrees that clauses 26 to 29 of the Bill appear to meet the terms of the settlement in JT. However, given that applications to displace the nearest relative may be made by others, including hospital authorities, we had concerns that the new ground for replacement, of ““unsuitability””, might be used to displace people who were merely seen as ““difficult”” by those authorities. We also believe that ““unsuitability”” is too broad a test to meet the Government’s apparent intention that patients would be able to displace nearest relatives only in situations of abuse or suspected abuse. We commented in our report on the procedure for community treatment orders, which place conditions on patients living in the community, and especially the breadth of conditions that may be imposed. In the JCHR’s view, any restrictions on conduct should be proportionate, and a patient should be entitled to a review of those conditions by a mental health review tribunal. Mention has been made of Bournewood patients and some of the most complex provisions are in part 2, which amends the Mental Capacity Act 2005 to meet the Strasbourg judgment in the case of HL. HL was a compliant, incapacitated patient. The ECHR found that his admission to, and detention in, hospital, under the common law of necessity, breached convention articles 5(1) and 5(4). We reported that the procedures for legal authorisation to detain a compliant, incapacitated patient are unduly cumbersome and we doubted whether, even with professional advice, residential care home managers would understand them. We are also concerned that the effect of Government proposals will be to apply means testing, charging persons deprived of their liberty and living in residential care homes for their care. That raises important human rights issues under articles 5 and 6; as well as discrimination issues under article 14, in that people deprived of their liberty in hospitals will not be similarly charged. In our report we suggested two enhancements to the Bill. The first relates to the treatment of Bournewood patients, because the inadequacy of safeguards for them is very serious, given that they lack the capacity to consent. We do not believe that the common law and the Mental Capacity Act currently provide sufficient protection for the physical integrity of such patients. In particular, more needs to be done to address the issues raised in the case of Storck v. Germany, which concerned state control over private psychiatric institutions. The Bill would be an appropriate vehicle to introduce such provisions. Secondly, we were concerned about the use of seclusion: safeguards should be placed in the Bill to ensure that seclusion is only used when strictly necessary and is subject to review. There are other issues on which we did not comment directly, and the points that have been made about advocacy are very important. We also did not refer to the effect of the Bill on the rights of child mental health patients. I note and support the clause 24 amendment in the other place to require primary care trusts to provide age-appropriate services and accommodation for children and young people. I hope that we will be able to report further on the Bill to take account of some of the additional points that have arisen in the debate. The Bill, of course, is about much more than human rights, as we have heard in the debate so far. Indeed, I think that this is the first contribution to refer to the issue of patients’ human rights in this context. I hope that the House will take into account the human rights of those vulnerable mental health patients who are detained or compulsorily treated by the mental health system in further consideration of the Bill today and in Committee.