§ 9.3 p.m.
§ Baroness Farrington of Ribbleton rose to move, That the order laid before the House on 10 May be approved.
The noble Baroness said
My Lords, the order was made at Privy Council on 6 May and introduces provisions broadly in line with those already in force in Great Britain by the enactment of the Mental Health Act 1983 (Remedial) Order 2001. I hope it will be helpful to the House if I comment briefly on the order and say a few words about the specific provisions.
The order makes legislative changes to address an incompatibility between the Mental Health (Northern Ireland) Order 1986 and Article 5 of the European Convention on Human Rights. The legislative changes place the burden of proof on the relevant health and social services trust to show a person held under the provisions of the Mental Health (Northern Ireland) Order 1986 should continue to be detained. The 1986 order placed the burden of proof on the patient to show that they should be discharged. The order is designed to protect the human rights of patients and mirrors that already enacted with respect to the same incompatibility with the Mental Health Act 1983.
Specifically in order to remove the incompatibility with the convention right, Article 3 of the order amends Article 77 of the Mental Health (Northern Ireland) Order 1986 to provide that a mental health review tribunal shall direct the discharge of a patient if it is not satisfied that the criteria justifying detention in hospital for treatment continue to exist. Article 4 of the order also makes a similar amendment to Article 78 of the 1986 order.
1425 Due to the urgent need to remedy the incompatibility with the European convention, it has not been possible to carry out a consultation exercise. However, I hope that all noble Lords will agree that it is extremely important that we rectify that situation. I beg to move.
§ Moved, That the order laid before the House on 10 May be approved.—(Baroness Farrington of Ribbleton.)
§ Lord Glentoran
My Lords, again, I thank the noble Baroness for presenting the order clearly and concisely, as is her wont. In principle, I support the order for the chief reason that, once again, it brings parts of Northern Ireland legislation in line with the rest of the United Kingdom.
I have just one observation to which I do not expect the noble Baroness to respond. I do not think that the quality of mental health care in Northern Ireland is anywhere near the standard in the rest of the UK. It has some way to go. Other than that, I support the order.
§ Lord Alderdice
My Lords, in general terms, I am supportive of this development, but I have one or two comments. First, in respect of one of the points made by the noble Lord, Lord Glentoran, mental health legislation in Northern Ireland—the Mental Health Act 1961—was different from the Mental Health Act 1959 for the rest of the United Kingdom, which was considerably to the advantage of psychiatry and patients.
One of the differences was that people were not able to become compulsorily admitted on the basis of personality disorder in Northern Ireland, but they were in the rest of the United Kingdom. It took the rest of the United Kingdom some considerable time to catch up with the rather more advanced psychiatric thinking that perhaps was the case in Northern Ireland.
Therefore, while I understand entirely the political principle enunciated by the noble Lord, Lord Glentoran, about the importance of harmonisation of legislation throughout the United Kingdom, there have been occasions when the legislation in Northern Ireland has been more appropriate, certainly, to our circumstances and, I would submit, in some circumstances even in advance of the thinking in the rest of the United Kingdom.
As regards the legislation before us, I am grateful to the Minister for indicating the purposes and the reasons for some alacrity. However, one needs to be a little careful about changes made with haste. One particular area concerns me a little; namely, that there are frequently occasions when patients are compulsorily detained because they are suffering from mental illnesses and they are a danger to themselves or others. That is of course perfectly appropriate. But in the course of their treatment, they may move from being a danger physically to themselves and others, through a period where they may cause other difficulties, and thence to a position where, it is to be hoped, they are well and able to be discharged from hospital.
1426 An example of that is patients who are suffering from a manic depressive psychosis. They might be admitted to hospital because they are a danger to themselves—from suicide—or a danger to others because their state of mind is disturbed, to the point where they might become violent if attempts were made to restrain them. That is not common, but it is frequent enough to be a problem. So the patient is admitted to hospital at the request of a family member— perhaps a partner or spouse— with a form signed by a general practitioner.
As a patient is treated and he or she improves, the sort of problem that may still occur—perhaps in the case of a patient with a manic disorder— is that they are prone to spending large amounts of money without proper and rational thought. That can be devastating for a family, but it is not uncommon. There may be other ways in which the patient may not be a physical danger to himself or others, hut, nevertheless, may have a substantial problem. Yet, it may be very difficult for them to be kept in hospital under the legislation.
I do not suggest that we should not pass this order. However, I wonder whether consideration has been given by way of guidance to the Mental Health Review Tribunal that, in making its consideration of such difficult questions, it should formally take account and seek the views of family members who may have to bear the burden of someone in a quite still disturbed state of mind being discharged, but unable to be held because he is no longer a physical danger to himself or others.
I do not think this is necessarily something that requires a change in the legislation, but it is a difficult problem. Very often such problems cannot he dealt with by legislation. But if there was at least a guideline requirement that not merely the medical attendants and other therapists and the patient and his representatives should be able to make their views known, but formal attempts were made to ensure that those others with responsibilities and who sometimes have to bear the burden—carers, families, partners and children—would also have the right to make their representations, then when the tribunal made its considerations, those matters would also be given due care and attention.
§ Lord Rogan
My Lords, my colleagues and I in the Ulster Unionist Party warmly welcome the introduction of this order to the Northern Ireland statute book. The legislation comes not a moment too soon and, in fact, highlights how unsatisfactory the Northern Ireland legislative procedure is at present, as this order comes years after legislation in the rest of the United Kingdom was amended to ensure that it complied with the European Convention on Human Rights.
Our mental health review tribunals have been in the most unsatisfactory position as the discrepancies in the present legislation have been challenged in Northern Ireland's courts. Had they been successful, the mental health review tribunal could have been suspended, which would have benefited no one.
1427 The institutionalisation of people suffering from mental health disorders and mental illness is an extremely delicate issue. This order must not be just an exercise in legislative window dressing to ensure that the United Kingdom is in step with European legal provisions. The impact of this amendment must be truly for the benefit of the patients themselves and therefore must ensure that the individual's quality of life is improved through cultural changes in the mental healthcare sector.
I am sure that the noble Baroness will agree that it is wholly desirable that the "burden of proof" should fall on mental health tribunals as opposed to patients being reviewed by them. But the question I want to raise in the House this evening concerns exactly what this will mean in practice. What impact will this order have on the decision-making process, and to what extent will it improve or protect the human rights of the patient when it comes into effect? Is it the operational system or the legislation that is flawed as it stands, with the onus on the patient to prove that the criteria justifying his or her detention in hospital no longer exist and that he or she should be released? Ultimately, the mental health review tribunal will decide whether or not the patient has proved his case for release, so what will the difference be if the same tribunal has to prove that the conditions for a patient's detention still exist? One could be forgiven for thinking that this sounds vaguely reminiscent of Joseph Heller's Catch 22.
I firmly believe that institutionalised environments should be the last resort as they often lead to increased dependency and loss of individual resilience among those receiving such care. The debate will be familiar to noble Lords. While this order is a welcome development, it must be followed by a review in practice to ensure that the legislative provisions are not being introduced to prevent legal challenges to the decisions reached by the mental health review tribunal, but rather to hone the decision-making process dealing with release cases so as to ensure that a culture of maximising patients' quality of care and protecting their human rights is nurtured and built upon.
The mental health review tribunal undoubtedly does a sterling job in the most trying of circumstances, but case reviews must be properly regulated and scrutinised by the Government to ensure that the best possible care for the patients in question is available at all times.
A related example springs to mind when ruling over this issue. Recently a young voter in Northern Ireland suffering from Down's syndrome was struck off the electoral roll. In Northern Ireland, questions can be raised over the decision-making process which determines whether one is fit to be included on the electoral register. Since the Electoral Fraud (Northern Ireland) Act 2002, an individual form is now required to be signed by the elector, or where that person cannot sign, an attester can do so on their behalf with a reason provided as to why that person has signed on their behalf. If the reason is that the elector suffers from mental illness or some form of mentally incapacitating disease, the registration officer makes further inquiries 1428 by writing to the person who attested the registration form. If the response is that the person can make his or her own mind up regarding the conscious decision-making process involved in voting, then his or her name is added to the register. This response can be in person, by telephone, by letter or through contact made by the elector, a family member, friend or carer.
This appears to me to be open to manipulation or mistake. During the 2003 annual canvass, the carers of 848 people indicated that they were incapable of taking an individual conscious decision and they were therefore not included on the electoral register. Does the House think that a telephone call or letter is a satisfactory assurance that someone suffering from mental illness should be added to the electoral register, or that the word of a carer should ensure that they are not included on it?
These are questions to which the Government should pay attention, and quickly. I hope that this amendment order will help to highlight the debate and safeguard the well-being of patients in the mental healthcare sector, and not simply the status of the mental health review tribunals themselves.
§ 9.15 p.m.
§ Baroness Farrington of Ribbleton
My Lords, I thank noble Lords who have taken part in the debate. I was pleased that the noble Lord, Lord Glentoran, received most of the answers to his comments from the noble Lord, Lord Alderdice, who is better equipped than I by far to respond to the points raised by the noble Lord. I agree with the noble Lord, Lord Rogan, that it is important that we tackle the whole range of issues.
I am a little concerned about commenting on an individual case when I do not have the details. However, if the noble Lord would like to write to me in confidence about the case that he mentioned, I am quite sure I shall be able to give him a detailed response. I know that noble Lords would not want to become involved in discussing an individual case in public.
As to the noble Lord's point about the detail of procedure in different cases in regard to the mental capacity or stage of illness of an individual, even though he again did me the courtesy of giving me forewarning of his question, I am afraid that this is such a complex and sensitive area that I should like to write to him and send copies to other noble Lords who have taken part in the debate. The support of the noble Lord, Lord Glentoran, is extremely valuable.
As to the point made by the noble Lord, Lord Alderdice, about patients moving at different stages in an illness from being dangerous to being a potential nuisance or difficulty to the people they are living with, obviously there are gradations in the process. I was a local councillor for nearly 27 years and often had to deal with problems between neighbours where a person's behaviour was bizarre to the point of disturbing other people's lives quite strongly.
Again, I should like to write to the noble Lord on the subject of seeking the views of members of the family, particularly as we are dealing with an issue of human rights. There is an area of confidentiality between the 1429 doctor concerned and the patient and I should not like to go into that area without investigating it further. I see that the noble Lord, Lord Alderdice, recognises that point.
As to the query about why we are doing this now, the department sought legal advice as to the need to change the Northern Ireland order when the English remedial order came into effect in 2001. The advice at that time was that no change was required. The interpretation currently being applied to the 1986 order indicates that an incompatibility exists that the department has moved to redress. As a result of that incompatibility, it was important that we tackled the matter urgently. The 1986 order is subordinate legislation. Therefore, as the noble Lord, Lord Rogan, recognised, there is a risk that the incompatible articles could be struck down, which would suspend the operation of the mental health review tribunal and remove the appeal mechanism by virtue of the powers of the provision. It is therefore urgent that we deal with this matter.
I can assure the noble Lord that we are looking at some of the other issues that he raised through the regional review of mental health and learning disability, which has a number of sub-groups. One of those is the legal issues sub-group, and part of the remit of that group is to examine existing legislation in the light of the European Convention on Human Rights. All the issues will be carefully considered. Therefore, I hope that the noble Lord, Lord Rogan, will, if he feels that it is appropriate, make his views known during that review procedure.
1430 I understand that the burden of proof is one that, in practice, the mental health review tribunals have tried to operate, in terms of looking at the patient's interests and rights. However, it is important that the legislation is absolutely accurate for the reason that I have given. There is also a social justice working group, which includes human rights in relation to mental health orders.
In answer to the noble Lord, Lord Alderdice—I am quite nervous about answering him on this subject, as the noble Lord, Lord Rogan, recognises—many of the most vulnerable people suffering from mental health problems will be received into guardianship or cared for by their nearest relative. At the tribunal hearings, the nearest relative, for example, has the opportunity to have representation. However, I repeat my caution and the need to ensure that the rights of the individual patient are fully recognised. Guidance currently exists within the 1986 order to ensure that the persons detained have assistance in the management of their property and affairs. All related issues of that nature would be considered by the working group.
I have tried to answer the points that noble Lords raised. I hope that I have satisfied them. I will look carefully at the points and will write to the noble Lord, Lord Rogan, and send copies to other noble Lords.
§ On Question, Motion agreed to.