§ Mrs. Helen ClarkTo ask the Secretary of State for Health (1) how the Government's proposals stemming from(a) the White Paper on Mental Health, and (b) the policy statement on mental capacity, Making Decisions, will address the House of Lords judgment in the Bournewood case which relates to patients who lack capacity to consent; [32754]
(2) what safeguards he plans to introduce for people who do not actively object to mental health treatment in hospital but lack the capacity to consent to it. [32750]
§ Jacqui SmithThe ruling of the House of Lords in the Bournewood case upheld the lawfulness of the current position whereby patients who lack capacity to consent to treatment for their mental disorder, as long as they do not show resistance, can be treated without the use of formal compulsory powers in the Mental Health Act 1983. Concerns, however, were raised about these patients.
We are committed to reforming the 1983 Mental Health Act and a Bill will be introduced as soon as parliamentary time allows. As proposed in the White Paper, Reforming the Mental Health Act (December 2000), new legislation will provide the following safeguards for adult patients who have a long-term incapacity to consent and who are in a hospital or nursing home receiving treatment for a serious mental disorder:
care and treatment overseen by a new commission for mental health;representation by a nominated person;an individual care plan, with external scrutiny by an independent member of the new expert panel;the right to go to the new mental health tribunal to challenge lawfulness of detention or for review of the care plan; andthe right of access to independent specialist mental health advocacy.We are also committed to bringing forward legislation on mental incapacity as soon as Parliamentary time allows. The 1999 policy statement "Making Decisions" proposes a range of measures aimed at clarifying the decision-making process on behalf of mentally incapacitated adults, including the introduction of a new system of continuing powers of attorney. These proposals will be complementary to those for mental health legislation.