Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

I have no objection in principle to clause 28, but discussing it paves the way for a debate on the new clauses. I do not intend to speak at length about them, but I want to say a little about the important interaction of this legislation with the mental health legislation that is promised and which, in parallel with our deliberations, is being considered in draft form by a scrutiny Committee. I also want to address the question of where a particular issue should be resolved.

Anyone who has spent any time dealing with this matter knows that I am referring to the so-called Bournewood gap, which has been the subject of a determination by the European Court of Human Rights within the past month. That requires careful

analysis by the Minister of State, Department of Health, the hon. Member for Doncaster, Central (Ms Winterton) and her officials, and I know that Ministers are not super-people.

I should have graciously said that it is very nice to see that the Minister is now dealing with the debate. That is not meant to be derogatory to her colleague the Under-Secretary of State for Constitutional Affairs, the hon. Member for Tottenham (Mr. Lammy), but it changes the batting and the Department, which is important. I am sorry that my party cannot offer to do the same at present—at least not on its Front Bench. I will defer later to my hon. Friends, and in particular to my hon. Friend the Member for Tiverton and Honiton (Mrs. Browning); they will have more to contribute.

I have to admit to the Committee that I have undergone a slight conversion on this matter; I do not often admit to such experiences, but perhaps politicians should. My immediate reaction was to say that the matter ought to be dealt with under mental health legislation, because it is about detention. Let me explain that. I am only a layperson, but as I understand the Bournewood judgment the cardinal issues were: was the person detained, and was there was a process under which they were properly detained when it was necessary for them to be detained? Not unusually—the Minister will be familiar with judicial reviews in the United Kingdom system—the judgment in this case was very much about process. The judgment specifically stated that clinicians and medics had acted in good faith in the matter and—I suspect, although I cannot remember the exact reference—in the patient's best interests, but that a process was not in place.

If we are detaining people, we must have a process in place. The present mental health legislation now dates back over 20 years. Even if it is defective or needs updating, the cardinal provision of the Mental Health Act 1983 is a system for detention and safeguards in respect of the detained person; somebody can step in and make representations, and there is a process.

I defer to my hon. Friend's great knowledge of this matter, but as I understand it the difficulty with the Bournewood gap is that the person was not sectioned, to use the old-fashioned phrase; they were not detained compulsorily, either for their own good or for the good of other persons. This was a voluntary patient, who had no capacity, and the essence of the Government's case was that that person was detained on an argument of necessity. However, that would be displaced by clause 5 of this Bill, and the specific provisions for the various appointments, which we have also been discussing. The European Court felt that that was insufficient to deal with a position of detention.

My immediate reaction was that that was a mental health matter. It was buttressed by the prudential point that there is already a mental health review tribunal. There is a process—a mechanism—and the Minister's colleague, the Under-Secretary of State for Constitutional Affairs, did not want to overload the Court of Protection with a lot of detailed cases, particularly of a day-to-day or comparatively regular nature, because it would be better for it to deal with

issues essentially of life and death, which would arise only in exceptional cases; there are hundreds rather than thousands of them a year. That all seemed perfectly reasonable, and somebody whom I know who is involved in the law tended to advise along those grounds.

I must now say why I have changed my mind. As a result of advice from the Royal College of Psychiatrists and others, and of going back and reflecting on the matter, I now feel that it should be dealt with in this part of this Bill. I will start with the lower order reason for making that decision. There would clearly be a gap of a different kind if we did not address this matter in the Bill.

There is a reasonable presumption, which I do not seek to derail, that the Ministers will have their legislation on mental capacity in place by next spring. The Mental Health Bill is a year behind, for reasons that we need not go on at length about now. It is still being subjected to scrutiny and, subject to whatever decisions are taken by the business managers, it may not appear, and is not likely to become law, for some considerable time.

Therefore, there is a legislative gap to add to the Bournewood gap: there will be no response to the ECHR judgment unless and until we have changed the Mental Health Act. That is a lower order reason for proceeding, because it flags it up to the Minister—quite firmly, I hope—that there will be concerns if the matter that we are discussing is not covered. Decisions taken by clinicians in good faith will have to be taken with a rather shaky legal cover while that matter is being considered, and until it is tidied up.

A senior lawyer in another place, to whom I spoke last night, said that he was concerned because there might be other areas of the mental health legislation that urgently need tightening up anyway, even before a full mental health Bill. That, however, would not arise under clause 28.

As I said to the Minister, that was the lower order reason for my changing my mind as I reflected on the matter. The more substantial reason is that the main point about the Bill is the fact that it is about capacity and the best interests of the person involved.

Mrs Joan Humble (Blackpool North & Fleetwood, Labour)

I am pleased that the hon. Gentleman has moved on to higher order issues. Surely one of the other failings in the process involved in the Bournewood gap is that the carers of Mr. L were not consulted or involved, and they were denied access to him. Yet, under this legislation, when the assessment of capacity and the person's best interests are being discussed, the carers, whether they are informal carers, family members or professional carers—as I understand was the case with Mr. L—would be part of the process. He would not therefore have languished for three and a half months in an institution without anyone being involved in determining that.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

Yes. If I may say so, the hon. Lady has illuminated the point very well. Central to this issue—I

should have added it to the list of good things in the Bill—is the built-in requirement for consultation; that would help. I will return to the subject in a moment, because we should not shy away from it, but even if we used the Bill and we thought that it was in a person's best interests for them to be voluntarily in some form of treatment—

Mrs Angela Browning (Tiverton & Honiton, Conservative)

It might interest my hon. Friend and other Committee members to know that the carers in that case were paid carers. I shall read to the Committee a letter from them in which they continue to express concerns about the Bill; even as it is currently drafted, they would not have been included as people to be consulted.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

That is a sobering point, and perhaps we will hear more about it in my hon. Friend's speech. It should be self-evident, even if we did not have the relevant legislation, that it is good practice to consult. It is distressing if that does not happen. It is another element that the ECHR took into account during their discussions.

I was about to say to the hon. Member for Blackpool, North and Fleetwood (Mrs. Humble) that we must face the fact that there could be a clash between carer and clinician, however much consultation takes place. That would ultimately come before the Court of Protection, which would then determine the matter with regard to the regime of care and treatment, but might also have to consider, under this measure, the issue of detention.

I revisited the clauses that we have already dealt with—specifically, the famous clause 5, which would update the old doctrine of necessity and enable carers to take action. Later, the duties of people appointed as deputies are set out. Under clause 16, deputies would have powers to rule on personal welfare issues—on behalf of the court, in effect. Such issues would include where P is to live, for example.

I suppose that one could argue, and perhaps the Government would want to, that a decision about where P is to live would cover wherever they might be taken for treatment without being able to leave. The power to decide that would have been devolved to the deputy, just as, under clause 5, carers would be given very general powers—I shall not use the words ''general authority''. Clause 6 would limit such powers in the case of restraint, but they would not be taken away altogether.

I can understand the mindset that has emerged from what Ministers have said to date. Prior to the ECHR judgment, they could say that the Bill was about the overall approach to the needs and best interests of the person without capacity, and that there were general powers for carers, and specific powers for deputies to exercise on behalf of the court, which covered where the person should reside, if, in the judgment of the deputy, after consultation and all the other caveats, it was in their best interests. However, all that is cast into doubt by the ECHR judgment. Ministers must react to that, and the Bill would be the right place to do so, because they could build on some of the concepts.

I want to go back to something that I said to the hon. Member for Blackpool, North and Fleetwood a moment ago. First, not everybody with a mental problem has to be treated in hospital. One of the difficulties is that in mental health legislation we are talking about a detention ''sectioning'' someone, or whatever, to a mental health hospital or institution. That may not be appropriate. Secondly, this Bill, and all that it says about those engaged in taking decisions on behalf of a person, is about the overall best interests of the person, which will include courses of treatment, what is sensible and what safeguards there are. Arguably, such best interests could include personal safety or an assurance that the person will continue treatment until it has done its work.

To take an analogy from a rather different context, many of us are concerned that if mental patients are released into the community, they get slack with their medication and they go back to having problems. So it is perfectly reasonable to say that carers and clinicians need to look together at where the incapacitated person should live, be protected and receive complete treatment. That might be in their best interests. However, it might be seen as detention—not, of course, detention for an offence, but some kind of compulsory locking up or inhibiting of the person. We need to respond to that idea.

There is also the real-world issue of people with fluctuating capacity, particularly those with a mental illness. A GP might say to such a person, ''We think you need help. Would you like to go to this place and get some?'' While they had capacity, the person might voluntarily consent to that; they might have a mental illness condition, but they might still have mental capacity. How would it be if the news got around that they could go to such a place as a voluntary patient, but might never come out because somebody might detain them—what is more, detain them without the safeguards available under the Mental Health Act? That could act as a deterrent, which is one reason why I expressed concern before.

What we should do about this I am not certain, but Ministers need to get a grip on the issue now—I do not mean today, but during the passage of the Bill—and get a sensible response into the Bill. I do not think that that can wait indefinitely. In the interests of the people, and now that we have excited the interest of the European Court, I do not think that it would be wise to wait. The Bill is the best forum for dealing with the issue.

We must build on the concept of taking a holistic approach to someone's best interests, ensure the minimum intervention appropriate to secure a person's safety and welfare, and ensure the qualified nature of acts that can be done for them. As was discussed extensively this morning in a different context, we probably need some kind of independent certification by a third person—someone from outside who has no interest in the case—who must agree that something is in the person's best interests. On the analogy with the Mental Health Act, we may need a review procedure whereby that person is not permanently detained, and under which the case can

be reviewed. That would go some way to meeting the concerns expressed by the European Court and by carers. That would be a sensible incremental response, and this is the right Bill to deal with it at the earliest possible moment.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

I realise that many distinct areas are covered by new clauses 6 to 21, which I tabled, but as my hon. Friend the Member for Daventry (Mr. Boswell) outlined, the purpose of the new clauses is to use the Bill to close the Bournewood gap. As a House, we are in quite a lot of difficulty at the moment because of the two separate Bills running in tandem. We also have some difficulty in that the Bournewood judgment is relatively new, but the Government must acknowledge it in law. I appreciate that the Government will need to take best advice and consider the matter, but I am convinced that the Bill is the right vehicle for filling the Bournewood gap.

Indeed, the Joint Committee, of which I was a member, made it clear in our recommendations to the Government that the Bill should close the Bournewood gap, but at that stage we had not yet heard the determination of the European Court. Over several years, and through the consideration of the draft Mental Health Bill, we have become aware that the Bournewood case has flagged up a problem, but until now it has been difficult to know exactly what we need to do. We now know what to do; the question is how we do it, and which Bill to use. That is at the heart of my new clauses.

Before I say any more, it might be appropriate to declare some interests; as many people know, I hold several positions in autism charities, including the National Autistic Society. I know the carers involved in the Bournewood case personally, and I have followed that case for some years.

It might also be helpful to identify the surroundings of the Bournewood case, because although it is of particular interest to people with autistic spectrum disorders, it goes wider than that. It brings within its scope a lot of people who would fall into the same category as Mr. L, a gentleman with autism in his 50s, who had lived for some years with paid carers as part of their extended family. He was taken to psychiatric hospital in July 1997 but was not allowed to leave. He remained there for some five months. He was deemed mentally incapable of consenting to treatment, and that meant that his detention in hospital was authorised under the common law, effectively on the basis of a single doctor's opinion.

The opinion was that Mr. L was suffering from a cyclical mood disorder, and that admission to hospital was in his best interests—a term that we have mentioned quite a bit in Committee. Therefore, there was no need to use a sectioning order under the existing mental health legislation. Through his carers, Mr. L took proceedings through the High Court to the House of Lords and then ultimately to the European Court. We have now heard the judgment, with which the Minister will be only too familiar.

It is not just people with autistic spectrum disorders who would find themselves in a similar situation. It

would extend to a great many people who lack capacity but are detained under the common law. My new clauses enjoy widespread support in the disability world, including that of the National Autistic Society. I must credit the Making Decisions Alliance, which has assisted me with the drafting of the clauses and in trying to see how best to fill the Bournewood gap.

The Joint Committee pointed out to Government on page 63 of its report the need to fill the Bournewood gap; indeed, the Minister gave evidence to our Committee. Nevertheless, having heard the Minister's evidence, we felt that a great deal more clarification was needed. At that time she was waiting for the European Court's decision, but in view of the Joint Committee's recommendations and the Government's response, the Minister should consider this Bill as the appropriate vehicle.

The Committee said at the time that it disagreed with Lord Filkin's assessment, in terms of recommending that consideration be given to making a statutory requirement for an independent second medical opinion. I was interested to hear yesterday, when I attended the Committee scrutinising the Mental Health Bill, that the Royal College of Psychiatrists supports a second opinion. We understand the weakness of a single doctor, as in the Bournewood case, taking a decision that, despite being taken in the best interests of the person concerned, was clearly wrong.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

I in no sense dissent from the argument that my hon. Friend is developing, but does she not agree that it is important to draw a distinction between a clinical second opinion, which I agree is appropriate, and the representation of the person involved by an independent, possibly lay, advocate? That is a separate but equally important concern.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

Indeed, we are trying to put that on to the statute book, but the difficulty, as with all aspects of the Bill, is that individual circumstances are different. In the case of autism, it is widespread, particularly in provincial hospitals, for psychiatrists not to have a specialism in autism and therefore to make inappropriate judgments about a patient's treatment. This Committee should consider the statutory right to a second opinion, initiated either by the patient or by their carer. It was a strong recommendation of the scrutiny Committee when we considered the Bill.

The consequences of Bournewood are far reaching. It is clear from the evidence that the Foreign and Commonwealth Office gave to the European Court of Human Rights on behalf of the Government in January last year that it anticipated that if the Court found in favour of Mr. L—which it did—the consequences for UK legislation would be profound. I am not allowed to read, but I shall summarise the representations made to the Court at the time. The Government anticipated that the consequences could involve thousands of patients who are currently not

subject to statutory procedures at all, and that they would come within the ambit of mental health.

I have huge concerns about that, as I assume the Government do, because they flagged it up as a potential problem. Now that we have heard the judgment, we must deal with the problem. Choosing which Bill to use to close the Bournewood gap is fundamental to the detail of meeting the requirements of the European Court of Human Rights—and, I would hope, those of this Committee.

We must look at the 2002 draft of the mental health legislation. Bournewood was before us then, but it was further down the pecking order in terms of the courts that were dealing with it. The Government attempted to close the Bournewood gap when they introduced the draft Mental Health Bill in 2002. We now have to consider the 2004 draft Mental Health Bill, but the Government have removed the bulk of that closure from the new draft. We are now left with having to decide whether to reintroduce it in the new draft Mental Health Bill or in this Bill. Will the Minister explain why it was thought appropriate to remove the closure from the 2002 draft? Was it in anticipation that the European Court judgment would go the other way? I do not know what was in the back of the Government's mind when they removed the closure from the draft that we are now dealing with, and it would be helpful to know why they did it.

Members of the Committee will recognise immediately that new clauses 6 to 21 are similar to the measures that the Government removed from the 2002 draft of the Mental Health Bill. They have been lifted for incorporation in the Mental Capacity Bill so as to reintroduce the closure in the context of this Bill. My hon. Friend has referred to the time scale. If matters proceed as we understand that they will, the Bill will receive Royal Assent by next spring, whereas the Mental Health Bill may follow in two or three years. We will therefore have to live with this Bill and the existing mental health legislation—which in itself will create a gap, because clearly the Government do not have the luxury of being able to delay dealing with the Bournewood gap until the Mental Health Bill is on the statute book. It will be an affront to the judgment of the European Court not to fill that gap, and this Bill is the appropriate vehicle.

The new clauses would address the elements of the Bournewood decision in the European Court. The Bournewood judgment stated that we cannot detain someone unless it is lawful, and that detention resting on common law necessity and the best interests criterion is not lawful. We must consider that, as well as the fact that lawful detention for treatment for mental disorders must comply with safeguards. I put it to the Committee that the new clauses would build those safeguards into the Bill.

I shall say a little more about the patient representative later, because that is important. The hon. Member for Blackpool, North and Fleetwood, who intervened in the speech by my hon. Friend the Member for Daventry, considered that the existing safeguards in the Bill would cover patient representatives. I beg to differ. We need to make that clearer and firmer. We also need to examine the

validation of a mental disorder and its treatment, with an independent second medical opinion, because that is what the European Court has said must we do. We need two medical practitioners, one of whom must be unconnected with the patient's treatment. Whether we consider such requirements of the European Court are good or bad, the Government have a duty to comply with the judgment, so it is important that we bring them within the scope of the Bill.

There must also be the facility to review the continuation of detention for treatment. That review process, too, must be clear and meet the European Court's requirements. We must review the legality of detention, and I hope that the new clauses will meet the requirements of the gap. As I said, the 2002 draft of the Mental Health Bill sought to protect patients who are treated for a mental disorder informally, but who lack mental capacity. The provisions that were dropped from the 2004 draft had been intended to cover the Bournewood case. In its judgment on the case, the European Court of Human Rights set down the same practical steps as are in new clauses 6 to 21, and the reasons why procedural protections are necessary to uphold the convention rights.

The Government have said that appropriate provision has been made in the Bill, but they need to put specifics behind the commitment now that the decision has been given in full. The judgment states, for example, that

''the Court finds striking the lack of any fixed procedural rules by which the admission and detention of compliant incapacitated persons is conducted.''

There is a need to state in statute the procedures that will cover that group of people. The judgment notes the significant contrast between the dearth of safeguards and earlier mental health legislation, and comments that the

''this absence of procedural safeguards fails to protect against arbitrary deprivations of liberty on grounds of necessity and, consequently, to comply with the essential purpose of Article 5.1 of the Convention.''

As I am not a lawyer, I am grateful for the advice of lawyers on how to do that. Perhaps the Minister will say today that the new clauses do not stand up legally, but I hope that they cover the scope of what the European Court said must now be put into UK law.

I will go through the new clauses as a group, rather than individually, to show how they cluster together and how they cover the European Court's recommendations. New clauses 15 and 17 deal with the requirements for and the review of the care plan. The following new clauses refer to the referral to an expert panel if a review is refused, and new clause 21 deals with application to the court for discharge. There must be a proper procedure and steps to prevent another case like the one at Bournewood: a chap was taken in, one person had all the say about his treatment and the duration of detention, and then it was left to third parties to take the procedures through the courts. Consider how long that case took: it went to the High Court, the House of Lords and the European Court. I am sure that it is not the intention of the Bill that all such cases should be treated in that

manner. We must have proper procedures and checks and balances so that we do not start with a blank sheet of paper at each step along the way if such a miscarriage of justice ever again took place.

Other issues dealt with in the new clauses include the validity of detention, a statutory scheme of care planning and safeguards. The Court said that the decision to detain someone for treatment had to be justified and that there had to be a proper, clear and transparent procedure to show how the decision had been made and on what basis professionals justified detention. Hon. Members will see from the headings of the new clauses that they deal with the duties to appoint a responsible clinician, to determine and assess P, and to determine whether he or she qualifies for safeguards. The safeguards should be set down in statute.

In the light of what the hon. Member for Blackpool, North and Fleetwood said, I shall deal with representation of the person presently. Even though I drafted the new clauses, I still have some concerns about who in any individual case will ultimately be seen to be the representative of the person concerned. We need to address that. Care planning, approval of the care plan, reviews of care plans, how to deal with disputes and the resolution of disputes about lawfulness of detention are also addressed in this cluster of new clauses.

New clause 12 aims to define medical advisers. I reiterate my recommendation to the Committee. I am glad to be able to say that it is endorsed by the Royal College of Psychiatrists. However, when it comes to medical advisers and professionals, I do not think that, in discussing this part of the Bill, we have focused enough on the need to include a statutory right to a second opinion. I shall not bat on ad nauseam about autism. The Committee has heard me doing that, and it is all on my website. If anybody cares to look at it, they can read of the appalling cases in which a medical person—a psychiatrist or other professional—has got it badly wrong for somebody with an autistic spectrum disorder. I have put it to the Government on several occasions that there should be a requirement for a second opinion to be sought from a professional who has greater knowledge and understanding of the condition. Such cases are complex and difficult, and when they are handled wrongly a lot of harm is done to people's lives.

Turning to access to a legal tribunal capable of deciding whether any detention is lawful, there has to be a process and a body to which representations can be made. If the process is ignored or not followed, there has to be a mechanism for challenging on behalf of the person who is detained the legality of treatment that has been given without consent. The carers in the Bournewood case were anxious to ensure that this Committee, in trying to close the Bournewood gap, did not ignore some of the complexities that arise in practice. The carers in the case are paid carers, and Mr. L lives with them as part of an extended family. The reason that they were thwarted at the beginning of his detention was that he had a living relative elsewhere who was not actively involved in his care; and because the carers were paid, as opposed to

voluntary, they slipped through the net. There has been a lot of discussion in Committee about the voluntary carer and the right to have somebody alongside who has day-to-day contact with the person about whom decisions are being made or whose capacity is being assessed.

I do not have an answer to that problem; I wish that I did. However, I put it to the Minister that when we draft legislation, we must take into account some of the rather strange quirks that occur when we think that we are doing the right thing. In the case that I outlined, the carers knew more about that person—Mr. L—than anybody else, and he knew them. They would have been the ideal people to form the bridge between him and the professionals, but they were frustrated in their efforts for a very long time after his detention.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

Has my hon. Friend noticed the provisions in clause 32 in relation to research, which, according to my reading of them, would have precisely the same effect of excluding paid carers, however close to the person they were?[Mr. Tom Clarke in the Chair]

Mrs Angela Browning (Tiverton & Honiton, Conservative)

Yes, my hon. Friend is absolutely right. That is why I said that we needed to consider very carefully how we legislate for certain circumstances. We try with the best will in the world to do the right thing, but sometimes the result is very different. We must avoid that. It is difficult to legislate for a set of variables, but I draw the matter to the Committee's attention because we are bound to attempt to close the Bournewood gap in the context of this Bill. Even now, I am not convinced that we have got it right, notwithstanding the cluster of new clauses that are designed to do so. The problem has to do with language, and with putting in the Bill expressions such as ''nominated person or carer'', ''independent'' and ''an independent person''. All those things interrelate. I do not claim that it is easy to unravel all the terminology, but we have to make a good fist of it if we are not to find that precisely the same scenario arises again, and the very people who know the person best end up having to plough through the High Court.

Under the Bill the Court of Protection would deal with the Bournewood case, but even with the court's enhanced powers, that causes me concern. It is for the Minister to give us some suggestion of the Government's reaction not just to my new clauses but to the whole issue of closing the Bournewood gap, and to say how we will do that while ensuring that a particular group—those who are detained but lack capacity—can be accommodated within the Bill. If the matter is left to be dealt with under the Mental Health Bill, the scenario that the Foreign and Commonwealth Office have, quite rightly, painted in respect of the European Court of Human Rights is that we will have thousands of those cases being brought under mental health legislation. That would be a disastrous way for us to proceed with mental health legislation, because a lot more cases would result in a lot more people being

sectioned and a lot of decisions being appealed against. The problem is not just the bureaucracy that that would create; it is a question of treating with basic humanity the people who would fall foul of that legislation. If we get the Mental Capacity Bill right, we can accommodate them in a much more humane and fair way.

By looking at the headings of the new clauses and considering the issues that need to be addressed following the European Court's judgment, I hope that I have persuaded the Minister, if not to accept my new clauses, then at least of the fact that this is the right Bill in which to deal with the issue. I hope that the Government will take those needs on board and agree that we should close the Bournewood gap in this Bill, even if it we have to do so later in our proceedings. If we try to close the gap in this Bill but do not get things right even after attempting to get it as right as we can, she will not find me jumping up and down criticising, because I realise that the matter is difficult and complex; but if we leave it to the Mental Health Bill we will have problems. The Government will not be complying with the European Court judgment, and to leave the matter to the Mental Health Bill would cause huge problems. From the small amount of evidence taken so far on the Mental Health Bill, it seems that the professionals feel that the Mental Capacity Bill is the right Bill for the issue, not the Mental Health Bill.

If we are forced to incorporate the provisions into the Mental Health Bill, it will not carry with it the support of many of the people who have to implement the proposals on the ground. That would be an additional difficulty when the legislation came on to the statute book. It is important that there is agreement between professionals, charitable bodies and those of us who take an interest in such things, and that we get the matter into the right Bill to begin with.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

I rise to speak in support of the new clauses, and to pose one or two questions to the Minister. The purpose of this debate is to provide the Government with the opportunity to map out their thinking on how to deal with the decision of the European Court, and for us to hear about the road map that they propose to use to close the Bournewood gap. It is clear from what has been said and from various briefings the gap is growing as a result of the European Court's ruling. One of the points that struck me in many of the briefings that I have read during the past few days was that neither Bill would provide safeguards for people who do not resist treatment, but who have not consented to it or do not have the capacity to consent to it. We are trying to deal with that group of people, and we want the Minister to set out how, in law, the Government intend to do that. In the end, that was a key part of the concern that led the Court to rule as it did.

Having listened to the debate and read the briefings from various organisations, it is still far from clear to me whether the Bill goes sufficiently far toward meeting the requirements of the Court. On balance, I

think that it does not and that there is a danger that, in attempting to answer the concerns of the Court, there has been a bringing together and confusion of issues. I am thinking of a clause that we shall deal with in considerable detail later, which deals with independent consultees. Committee members from all parties have tabled amendments to explore it further.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

But the carers in the Bournewood case would not have been regarded as independent consultees, because they were paid.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

Absolutely. It seems to be a gap in the drafting of the Bill that that category of person, who would clearly have knowledge, would not be regarded as someone to consult. It is useful that that point has been teased out.

Mr George Howarth (Knowsley North & Sefton East, Labour)

Will the hon. Gentleman give way?

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

Let me finish the point, and I shall be happy to. It would be useful if the Minister provided some clarification of whether the Government are minded to address the anomaly, so that the Bill clearly states that such people are one of the groups that should be consulted.

Mr George Howarth (Knowsley North & Sefton East, Labour)

I have been carefully following the speeches of the hon. Member for Tiverton and Honiton and the hon. Gentleman. It occurs to me that the very problem that the hon. Lady identified—namely, that paid carers would be considered to have an interest of some kind—might also apply to an independent advocate. There would be a difference of degree, but that could be a further problem, which needs to be addressed.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

The point about a potential pecuniary interest that might inform their judgment would undoubtedly have to be factored into the equation.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

Will the hon. Gentleman give way?

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

Let me just finish my line of thought. Almost all the consultees identified in the Bill would have an interest—something would motivate their commitment. The Minister, rightly, keeps drawing us back to their overriding interest: the best interests test and whether they are acting in accordance with it.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

Given the Government's healthy commitment to consultation and taking all relevant factors into account, it might well be sensible, and not onerous on a practical level, both to take account of the views of paid carers and to seek some independent person, completely outside the system, to make an independent, disinterested judgment on behalf of the person concerned.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

I shall treat that intervention as an opportunity to return to the tack that I was on before the first of that sequence of interventions. One of the points made about clause 34 is relevant to this debate about the Bournewood gap and the new clauses. In some ways, clause 34 conflates two different things: the role of advocacy, which I do not think the clause adequately answers, with the need for expert professional second opinions, whether medical or otherwise. Those two things do not fit comfortably together. The Government, perhaps for understandable reasons, may be driven by a need to

keep an eye on what the Treasury might think about such things. They may be considering the resource implications, which should not run away from them.

I was struck by the comments of the hon. Member for Tiverton and Honiton about what the Foreign and Commonwealth Office's submission of evidence to the Court said about the resource implications. Evidence was also given to the House of Lords on this matter, albeit back in 1998, that drew on information from the Mental Health Act Commission and the Department of Health. It would be helpful to get new figures on the record today, but it was estimated then that 13,000 patients were detained under the Mental Health Act 1983 on any one day. If in-patients who lacked capacity were treated informally, that would create an additional 22,000 patients to whom the Mental Health Act safeguards would apply. Annually, that would create about 48,000 admissions under the Act. It would be useful to get some sense of whether those figures still roughly define the parameters of the current debate, and if they do not, why not. One point made in some briefings is that there is a growing number of people with dementias and that they may fall within the ambit of the provision. I am not convinced that that is a good enough reason not to try to clarify the matter.

It is useful that this Committee is in sitting at the same time as the Joint Committee scrutinising the draft Mental Health Bill. Several members of this Committee are also on that Committee. I have been looking at some of the oral evidence that they have heard so far. Questions have rightly been asked about how the Bournewood gap can be closed. Two individuals who are very eminent in this area of law and practice have recently appeared before them—Professor Richardson and Mr. Heginbotham. Both were asked whether this Bill and the draft Mental Health Bill in their current forms adequately close the gap. Professor Richardson said:

''I am really troubled about the relationship between the two Bills and it would seem as if the safeguards provided within the Mental Capacity Bill are not going to be sufficient to meet the court's requirements''.

She concluded:

''I am worried that the relationship between these two terribly important Bills has not been properly worked out.''

Mr. Heginbotham acknowledged that this was still ''a grey area'', and he gave the example of

''a young person with schizophrenia who has lost capacity and whose parents have, through various procedures, had that person come under the Court of Protection, but who could . . . be treated under one Bill or the other depending upon circumstances.''

He said that a game of ping-pong starts being played with the individual and their life about which legislation might apply at any one time. That is another reason why it is important to be as clear as possible about precisely how the gap is to be closed.

I want the Minister to say whether the work being done in the Department of Health and the Department for Constitutional Affairs is intended to deliver further amendments to the Mental Capacity Bill, either in this House or in the other place, so that problems are dealt with in the context of this legislation, or whether the intention is to use the process of scrutiny of the draft

Mental Health Bill in such a way that they are dealt with under that legislation. My preference—for what it is worth, and I accept that it might not be worth anything—is for this to be dealt with in the context of the Mental Capacity Bill, because the sooner the gap is closed, the sooner we can guarantee the rights of this group of people, which are not currently properly protected and reflected in the law of the land, according to the Court ruling.

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

I am a little thrown, Mr. Clarke; I was going to welcome Mr. Cran to the Chair and say how pleased I am to be serving under his chairmanship, but as he is not present I cannot do that. You might like to pass my welcome on to him, Mr. Clarke, and in the meantime I will say what a great pleasure it is to be serving under your chairmanship, however temporary that proves to be.

Clause 28 deals with the interface between the Mental Health Act 1983 and the Mental Capacity Bill. It is primarily a technical provision to ensure that there are not two overlapping statutory provisions relating to the same clinical decisions. When patients are detained for assessment or treatment under the 1983 Act, that Act provides the authority for them to be treated for their mental disorder in circumstances when they lack the capacity to consent. It is therefore unnecessary and potentially confusing for the Bill to deal separately with the same decisions. The clause also ensures that the procedural safeguards set out in part 4 of the 1983 Act will take precedence and must be followed when treating patients to whom that part applies.

As right hon. and hon. Members know, the Bill has a broad scope. It provides an overarching legal framework for a broad range of adults who may lack capacity and are unable to make decisions for themselves. It covers all areas of daily life, whereas the 1983 Act is more narrowly focused on a limited group of people and provides legal authority for the treatment without consent of people with a serious mental disorder in circumstances in which it is warranted by the nature or degree of their illness and the seriousness of the risk to themselves or to others.

In addition, the 1983 Act deals only with treatments for a mental disorder. A person detained under the Act may also lack capacity in relation to other forms of medical treatment or care. At present, decisions about other treatment are taken under the common law doctrine of necessity. In future, they will be taken in accordance with the Mental Capacity Bill.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

While the Minister is talking about safeguards, does she accept that the requirements of the Mental Health Bill should have a read-across under the Mental Capacity Bill, such as a care plan by a doctor and independent supervision? They are built into the safeguards of mental health and need to be built into the Bill, too.

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

We shall consider all aspects of the judgment and deliver the appropriate safeguards as soon as possible. I must emphasise, however, that, before we can do that safely, we need to consult widely with interested parties, including representative groups, the NHS and local authorities. It is important that we design effective and proportionate procedural safeguards that are deliverable in practice.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

I am following the Minister's closely-argued case with interest and a good deal of sympathy, because she is responding genuinely to the concerns that have been expressed. If she is minded to set up a generous consultation period fairly soon, does she accept that it could be practicable to consider building in the necessary provisions at a late stage, possibly while the Bill is under consideration in another place? The worries that have been expressed by my hon. Friend the Member for Tiverton and Honiton and

others are real and, as the hon. Lady said, we need to get on with matters as soon as possible.

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

As I said, we are moving quickly towards consultation, but with regard to the new clauses tabled by the hon. Member for Tiverton and Honiton it would be premature at this stage to assume that the safeguards that we might consider necessary would be along the lines of those new clauses. They were drafted in a different era because of the changes that I have outlined, such as those under the Human Rights Act.

When the proposals appeared originally in the draft Mental Health Bill, they were designed to provide additional safeguards for a group of informal patients as a matter of policy. They were not designed to provide procedural safeguards to protect patients from arbitrary deprivation of liberty because, at that time, there was no reason under domestic law to think that such patients were being deprived of their liberty.

For that reason, the proposals deal only with the position of patients who have already been admitted to hospital and do not provide procedures relating to admission itself. Even though they have been revised by the hon. Member for Tiverton and Honiton, they still would not address such issues in the most effective way. I accept the spirit of the contributions made by members of the Committee and I want to give the assurance that we are consulting as quickly as possible on how we can ensure that procedural safeguards are in place, but at this stage it would be difficult to give an exact date for when we will introduce the new safeguards.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

When the Minister took the intervention from the hon. Member for Daventry, she gave part of the answer that I was about to seek. Just to be absolutely clear about her response, is it her view that it would be desirable to undertake the consultation at a pace that allowed further consideration of amendments tabled by the Government in the other place?

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

I would not rule that out entirely. It is important that we get this right, as there are some vast implications, and it will not be as easy as one may think. As I said, simply taking part 5 from the old draft and putting it in the Bill will not cover what we need to do.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

I want to flag it up that there is some uncertainty about whether the European Court, when it considered its judgment—obviously, much of this goes over a very long time—was under the impression, as it appears from that judgment, that the provisions included in the 2002 Mental Health Bill were still current. In fact, they have been dropped. I am looking for a replication in this Bill of the safeguards that were in the 2002 Bill. I have a feeling that nobody told the European Court that in fact the section had been dropped from the legislation.

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

I am not sure that I can comment fully on that. [Interruption.] As I understand it, we did tell the Court—saved by the bell! That leads me to re-emphasise how important it is that we carefully consider the judgment and its implications, and consult properly. Of course, as soon as we can, we

will introduce procedural safeguards, as we are required to do. I hope that gives some reassurance to the Committee that we will consider the matter, consult on it and introduce any appropriate changes as soon as we can, and that, in the light of what I have said, the hon. Member for Tiverton and Honiton will withdraw the new clauses.

Mr James Cran (Beverley & Holderness, Conservative)

The hon. Lady is not required to do that.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

Thank you, Mr. Cran. I recognise the complexity of the issue and the time scale that the Government have had in which to respond. Clearly, they will need to consult. However, we have not had a definitive reply from the Minister as to whether she intends to close the Bournewood gap through the Mental Capacity Bill. I would like that reassurance from her, Mr. Cran, before agreeing not to press the new clauses.

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

I can say only that I would not rule out such a provision entirely, but, frankly, if we cannot find a form that will work, it would be wrong to say that it would definitely be introduced in time. I cannot say any more than that at this stage. I feel very strongly that we must get this right—it is important to a group of vulnerable people. If we do not, there would be enormous repercussions. It would be wrong to work to a timetable that does not enable us to get the provision right.

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

The Minister is doing her best with the Committee: she has been put on a very sharp point and I do not intend to prolong her agony. Given the concerns that have been expressed—and utterly against my normal preferences, I hasten to say—will she at least consider whether it might be possible to take powers under the Bill to make regulations that would be informed by the principles and broad approach of this legislation as set out in the debate? It may be possible at a later stage to come back with the details. Of course, if the regulations were not appropriate, they could be modified. I do not make that suggestion lightly or easily, as I would much rather see the provision in the Bill, but will she at least bear it in mind?

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

I will certainly bear that suggestion in mind. I am quite happy to come back on that.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

I must put on record that I totally disagree with my hon. Friend the Member for Daventry. I want the provision in the Bill.

Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)

I will look into the possibility of regulations, but it is important that we have the right vehicle for delivering the safeguards that we need.

Mr James Cran (Beverley & Holderness, Conservative)

For the avoidance of doubt, there is no need for you to move any of the new clauses at this point, Mrs. Browning.

Question put and agreed to.

Clause 28 ordered to stand part of the Bill.