[Since this newsletter was written the Bill has been through
Report Stage. The Lords voted to amend the Bill to include:
- tighter exclusions
- therapeutic benefit
- medical requirement for renewal of detention
- children to be treated on age-appropriate wards
- tighter criteria for compulsory treatment in the
community]
And so the Bill continues its passage through the Lords. It has
completed committee stage in just over 4 days. Whilst some of the
Parliamentary processes and language could best be described as
quaint (and have certainly not been included in the ‘modernisation
agenda’), one cannot but admire the interest and commitment shown
by a number of Peers. Each day of committee starts at 3.00pm and is
supposed to finish at 10.00pm. On two of the four days the House
rose at 11.00pm. I have acted as a special advisor. This has
entailed sitting in a box, opposite the Department of Health
officials in their box, listening to the debate and writing
advisory notes for Peers, as required. The first day of committee
we sat for five and a half hours without a break, other days we had
an hour’s break in the 8 hour sessions (I have wondered about risks
of DVT just as you may wonder about other, more basic,
necessities).
Over 70 amendments, submitted by a
wide-variety of organisations, have been debated. A full list of
amendments and transcripts of the debates can be found
online.
I cannot do justice to the standard of debate
in a brief newsletter. The process, which I can describe, is
interesting. An ‘opposition’ Peer, Conservative, Liberal-Democrat
or Crossbencher, proposes the amendment. A number of Peers speak,
almost all in support of the amendment, then the Minister in the
Lords explains why the Government disagrees, followed by the
proposing Peer withdrawing the amendment. Occasionally the Minister
accepts that there is an issue and agrees to look at it again, with
a view either to having further discussions (e.g. on principles)
or, possibly, to propose a Government amendment (e.g. the right for
capacitous patients to refuse ECT). On one occasion the proposing
Peer, rather than withdrawing the amendment, divided the House i.e.
insisted on a vote. The amendment, submitted by the College, was to
make impaired decision-making by reason of mental disorder a
necessary criterion for civil detention (i.e. under Part 2 of the
Act). The amendment was passed by 225 votes to 119 and is now part
of the Bill (albeit that it will almost certainly be removed in the
Commons!).
Amendments which were not voted on at
Committee stage may be brought back at Report stage (February
19th and 26th) and voted on at that time.
However it is unlikely there will be time for more than 4 or 5
votes. The Lords are currently discussing, with us, which
amendments should be put to a vote. Amendments not voted on may be
pursued in the Commons but most will be dropped. This doesn’t mean
that all the effort, in relation to these amendments, has been
wasted. The issues have been aired and recorded in Hansard. Many
will be addressed in the Code of Practice.
How to decide with which issues to continue?
All amendments supported by the College, whether directly or
through the Mental Health Alliance, were taken from policy
documents approved by College Council. Nonetheless it is clear that
some are more fundamental than others. For example, the importance
of ‘therapeutic benefit’ as a criterion has been repeatedly
emphasised (and is a ‘College’ amendment). On the other hand, an
issue such as the single gateway (all civil detentions starting
with section 2, an Alliance amendment), mentioned by the National
Director for Mental Health (and supported by the Government until
recently) does not have such wide support and has been dropped. I
cannot list all the amendments which will be pursued, at some
stage, because it has not yet been decided.
As I write the College is continuing with:
- Principles on the face of the Bill
- Impaired decision-making by reason of mental disorder (for Part
2 patients)
- Strengthening of the exclusions
- Therapeutic benefit
- Amending the ‘3 month’ rule’
- Medical requirement for renewal of detention
Age appropriate accommodation for CAMHS and
amendments in relation to community treatment orders, are examples
of other issues which are likely to continue.
I say “as I write” because the position as to
what we can and can’t achieve changes daily. I must emphasise that
all we can do is advise Peers (of all persuasions) and officials.
We have no authority to table amendments.
The Parliamentary Joint Committee on Human
Rights has published a further report on the Bill. It makes
interesting reading. For example the committee states that it is
not convinced that the requirement for ‘objective medical
expertise’ (as determined by the ‘Winterwerp’ judgement), in
relation to diagnosing the presence, or absence, of mental
disorder, can be met by someone who is not a registered medical
practitioner. The report can be found online
here.
The Government have decided to amend their own
Bill. At the time of writing they have submitted amendments to:
- Define “appropriate medical treatment” so that it means
“medical treatment the purpose of which is to alleviate, or prevent
a worsening of, the disorder or one or more of its symptoms or
effects." The removal of ‘likely benefit’ is replaced with
‘purpose’. That the treatment “is available” and “is appropriate in
his case taking into account the nature and degree of the mental
disorder from which he is suffering and all other circumstances of
the case” remain.
- Require a non-medical responsible clinician to consult with a
registered medical practitioner (RMP), in relation to section 20
renewals and authorising a SCT order, if the responsible clinician
isn’t a RMP.
- Amend section 136 so that a patient can be moved from one place
of safety to another.
- Prohibit ECT in the face of capacitous refusal other than in an
emergency.
- Prohibit parental overriding of capacitous refusal by16 &
17 year olds.
- Make some further changes, including to the Capacity Act in
relation to ‘Bournewood’, which I shall describe in my next
newsletter.
The Government has only just published its
amendment in relation to the definition of medical treatment and I
would particularly appreciate your views on whether or not you feel
it meets the needs of our patients. As always, all views and
thoughts are welcome. Please email me at the College.
Best wishes
Tony Zigmond
Honorary vice-president, Royal College of
Psychiatrists
February 2007