Clause 6
Mental Health Bill [Lords]
4:30 pm
Tim Loughton (Shadow Minister (Children), Health; East Worthing and Shoreham, Conservative)
Welcome, Lady Winterton—[Interruption.]. I am not sure where I was interrupted, so I thought that I might go back to the beginning and start again. I think that I was just about to explain the case of Winterwerp v. The Netherlands 1979, which is the basis of the two amendments to which I spoke for most of the morning. They would amend clauses that we are not debating at the moment, but that is the way in which things work.
Winterwerp v. The Netherlands 1979 produced an important European judgment on mental health law. The ruling was that, except in an emergency, the detention of a person of unsound mind will be lawful only if, first, the person detained is reliably shown tobe of unsound mind—that is, by objective medical experts—secondly, the relevant mental disorder is of a kind or degree warranting compulsory confinement, and thirdly, there is a persistence of such a disorder to justify continuing detention.
I was talking about the position of the Joint Committee on Human Rights. It asked the Government to explain further their view that medical expertise need not necessarily involve a doctor. I am aware that the Department of Health takes the view that the phrase “medical expertise”, as referred to by Winterwerp, was used in the wider sense and the Court was not seeking to lay down which sort of qualifications available in a national system would be acceptable. However, the JCHR and a number of professionals do not agree with that. The JCHR disagrees particularly with the Government’s definition of objective medical expertise. It says:
“In Varbanov v Bulgaria the Strasbourg Court gave every indication...that objective medical expertise involved reports from psychiatrists who are doctors. The Court made it clear that the opinion of a medical expert who is a psychiatrist is necessary for a lawful detention on grounds of unsoundness of mind. This requirement would have been met had the doctors present at the admission furnished an opinion that the applicant needed to be detained for psychiatric examination. This indicates that the opinion justifying detention should come from a medically qualified expert...who has recognised skills in psychiatric diagnosis and treatment.”
My point is that, if the Government get their way, there is every chance that there will be serious legal challenge of the basis of the legislation. The Minister has warned on a number of occasions against having a field day for lawyers. This is a field day for international lawyers. I would like to know on what evidence the Government have based their opinion that their proposed change to the legislation is sound and that it will not be subject to legal challenge. It would be useful if the Minister would give us details as to which legal opinion the Government have taken. The Law Society, the JCHR and a number of others have severe reservations, based on case law, about whether the changes will be workable.
There is another angle to the issue, which is the interaction between the Mental Health Bill and the Mental Capacity Act 2005, which treats these matters differently. The mental health assessment, one of the six assessments required in the 2005 Act for a Bournewood deprivation, must be carried out by either a registered medical practitioner approved under section 12 of the Mental Health Act 2005 or a registered medical practitioner who has special experience in the diagnosis and treatment of mental disorder. So, in those circumstances, only a doctor has responsibility. There is clearly an inconsistency between this Bill and the Act that is already law. Again, it would be useful if the Minister would tell us how she intends to square the circle on those two incongruities.
The BMA does not know of any international precedent for such an arrangement whereby detained patients do not come under the direct responsibility of a consultant psychiatrist. It cites Canada, Australia, the United States and other countries where that formulation just does not exist. We need to know why things would be different in this country, and how, if the Government get their way and overturn the Lords amendments, they expect the new arrangements to pertain without serious legal challenge.
It is worth reiterating the training that psychiatrists must undergo. Two years after leaving medical school, trainees enter a rotational psychiatry programme, an elaborate passage that equips the would-be psychiatrist with knowledge of anatomy, physiology, pathology, pharmacology, medicine, surgery and psychological therapies. During the senior years of training, most junior doctors will acquire detailed knowledge of mental health law, teaching, audit, research and management skills. In contrast, mental health nurse training has moved away from a medical model in the past decade, so trainee nurses are no longer required to undergo training in medicine. Different disciplines are brought to bear through the experience and expertise of the different professionals under discussion.