Patients Without Legal Capacity (Safeguards) (Hansard, 13 February 2002)

§ Mrs. Helen Clark (Peterborough)

I beg to move, That leave be given to bring in a Bill to amend the Mental Health Act 1983 to provide protection for persons with a mental disorder who are unable to consent to being treated in hospital.

The Bill, which is supported by hon. Members from the three main parties, the charity Mencap and the Alzheimer's Society, attempts to close a loophole in the legal protection of the most vulnerable members of society. It would introduce a procedure whereby decisions that involve deprivations of liberty are taken in accordance with a procedure prescribed by law which can be challenged. That will ensure that patients who are informally detained benefit, as far as is practicable, from the rights that formally detained patients have under the Mental Health Act 1983 the moment a carer challenges the informal decision.

My Bill applies to people with a mental disorder who are unable to consent to being admitted to hospital. They have no capacity to consent to admission but are deemed from their behaviour not to have dissented to that admission. The proposals would apply to those with severe learning disabilities who are unable to make decisions for themselves and to people with dementia whose loss of capacity may be permanent.

The issue was prominently highlighted in the Bournewood case in the constituency of the hon. Member for Mole Valley (Sir Paul Beresford), who is one of the Bill's supporters. The case is that of a 48-year-old autistic man, known for legal reasons as Mr. L, who cannot speak. Mr. L had been a resident at a hospital run by the Bournewood NHS trust and had gone to live with a couple who were his carers. They regarded him as one of the family. One day, at a day centre, Mr. L became agitated. His carers could not be contacted, and Mr. L was given a sedative and taken to hospital. The doctor decided that there was no need to detain Mr. L in hospital under the Mental Health Act as Mr. L was compliant and did not resist or attempt to run away. He was kept in hospital on an informal basis.

Mr. L's carers described the fact that they were not allowed to see him for nearly four months as of the greatest importance to Mr. L". They demanded his release but had no legal basis on which to challenge the doctor's decision. The carers took action against the trust, claiming that he was unlawfully detained. The Court of Appeal ruled that he was unlawfully detained, but the decision was reversed in the House of Lords. The judgments relate to the scope of section 131 of the 1983 Act. This section preserves the right to admit on the basis of common law. Common law is a useful concept, but it contains none of the safeguards of that Act, and that is what my Bill seeks to address.

In any event, the concerns raised in the case of Mr. L certainly have not gone away. At the time of the judgment, Lord Justice Steyn said that those patients who would continue to be admitted informally would not benefit from any of the protections provided by the 1983 Act. In particular, they would continue not to have the right to apply for, or to be automatically referred to, mental health review tribunals in accordance with the provisions of that Act.

211 Currently, people who for whatever reason lack the mental capacity to consent or dissent can be informally detained indefinitely, on the opinion of a single doctor. Relatives and carers have no right to appeal against the doctor's view of the best interests of the person being detained; nor do they have a right to be consulted prior to the detention. There is no mechanism to review the lawfulness of the detention and no requirement to review the patient's conditions of detention. Such patients are not protected by any formal safeguards at all and have to rely on good professional practice to defend them. They are not even open to a writ of habeas corpus since they are not being detained. That places effective and unqualified control in the hands of hospital psychiatrists and other health care professionals.

I am aware of other cases. An Alzheimer's sufferer, Mrs. P, has been informally admitted to hospital because of her aggressive behaviour. She is very agitated and her carer—I shall call her Joyce—does not think that she should be in hospital, but Joyce has no legal basis for challenging the doctor's decision that Mrs. P should remain in hospital. The Bill would allow Joyce to challenge the decision on whether Mrs. P should be allowed to go home. The Alzheimer's Society tells me that this case is typical of those in a number of calls that it receives on its helpline each week.

I am not for one moment suggesting that all those cases should or would proceed to a tribunal. Speaking from experience, however, I think that if carers knew that legal safeguards were in effect, that would give them the confidence to dispute a decision to detain or continue to detain their loved one if they did not believe it to be in that person's best interests.

The Government have published a White Paper on the review of the Mental Health Act. It contains proposals to address the deficiencies in the current legal framework, but I do not know when a Bill will be introduced or whether it will deal with this issue. I believe that my Bill would do so in a simple and effective manner. It is not 212 about preventing informal admissions when nobody objects to them, about undoing the good work of the Mental Health Act review or about putting the cart before the horse in mental health reform.

We cannot ignore the fact that the Bournewood case has drawn attention to the deficiencies in the present law. Mr. L was detained without any right to have his detention reviewed by an independent tribunal. Only one month ago, the health ombudsman strongly criticised the Bournewood Trust for detaining Mr. L for four months. My Bill provides that once someone's placement is challenged, formal procedures come into play.

The way in which we choose to safeguard the rights of individuals who do not have a voice to speak up for themselves reflects our maturity as a civilised society. Reform is needed to uphold an individual's rights to liberty and to be treated with dignity, and to ensure their freedom from detention. We also need to safeguard against misjudgments and lapses of judgment on the part of health professionals—these can occur.

The law as it stands fails to give adequate protection to a vulnerable group of individuals, and it discriminates against those who are most disadvantaged and their families and carers. Mr. L's carers have already sought an application arguing that Mr. L's detention contravened article 5 of the European convention on human rights. I hope that the House will accept my Bill.