Mental Health (Approval Functions) Bill

John Pugh Excerpts

Tuesday 30th October 2012 Commons Chamber

[John Pugh (Southport) (LD)]

Yesterday I expressed bewilderment about how we have ended up in this situation, given the high profile given in this place to the issue of legal detention, particularly during the passage of the Mental Health Act 2007, on whose Bill Committee I served. Yesterday, the hon. Member for Broxbourne (Mr Walker) said that this issue has not been taken seriously during the past decade, but it has been in the House of Commons—it has been taken very seriously and has been debated at extraordinary length. I now see the Government’s problems over the issue and recognise the gravity of the situation. I understand the need for a rapid solution and the absence of any real viable alternative. However, I am not yet convinced that this retrospective legislation offers an unproblematic or wholly sufficient solution.

Let me explain why that is and underline my concerns. Let us suppose this were not an issue of mental health, and somebody was judicially processed and forcibly detained via a flawed process. Let us suppose that they were arrested by an officer who was competent but not properly authorised to arrest or that such a person were sentenced by a judge who was skilled but not properly appointed. Irrespective of the person’s actual guilt or the reasonableness of the evidence, they would be released, after an application had been made, on a technicality. That is how the law would work for those who do not have mental health issues to address. If we apply different principles for those who have mental health issues, we discriminate, and it could be argued that we might be doing so unfairly. Ironically, this week, we are beginning the Committee stage of a Bill to outlaw unfair discrimination.

If we add to that the fact that the job of determining who assesses cases was delegated to organisations such as care trusts, which are also providers of patient care and are paid for providing it, we see a legal challenge under human rights law starting to take shape. Mersey Care NHS Trust owns and runs Ashworth, and although I do not think it is one of the offending trusts in this case, it would have been a relevant example here. A consoling thought—the consoling thought—is that we believe that no one has been improperly detained or is being improperly detained, and nothing would have changed if authorisation had been done differently. However, it is not possible to be sure about that.

These cases are often genuinely difficult. I have met psychopaths who appear, on the surface of it and when encountered, to be very normal. Equally, when anyone is incarcerated it can be difficult to prove their normality. A classic pseudo-patient experiment was carried out by David Rosenhan in 1973, when mentally well researchers were admitted to an institution under false diagnoses in order to observe life and treatment there, and to conduct research. At the end of each day they wrote down their observations, and the nurses retired to their rooms and wrote down in their case notes, “Patients exhibit strange writing behaviour”. If this place was assumed to be an asylum, I often wonder what exactly would disabuse people of that perception.

Closer to home, I conducted an evening class many years ago at Park Lane hospital, which was the predecessor institution of Ashworth hospital. I encountered there a very articulate and seemingly responsible young man who appeared ready for discharge. Years later, I saw the same individual on a TV programme about Park Lane hospital applying for a discharge, arguing on camera with his psychiatrist for release and asserting his sanity. His willingness to argue and his insistence was taken by the psychiatrist as an indication of his lack of insight. Until he agreed with his psychiatrist that he was still sick he would get no joy—that is a kind of inverse Catch-22. There are those with less cause who genuinely think that they should not be detained, and they have lawyers and access to the courts. They will contest this legislation and we cannot be entirely sure what the result will be, especially as we are forced in this case to act in haste.

We have to go ahead with the measure, but it may not be sufficient for our purposes. We may have to consider judicially reviewing all flawed cases to ensure that there is a sustainable basis for continued detention. I would genuinely prefer to believe that in this case I am wrong.

--- Later in debate ---

[Mr Hunt]

My hon. Friend is absolutely right. The key point is that those patients are free to challenge any element of the clinical decisions made as part of that very thorough process. This proposed law is about the technical irregularity only, and it is precisely because of the legal risks associated with that irregularity that we think it is necessary, in the interests of those 5,000 people, to enact this Bill.

[John Pugh]

I totally accept the point that the clinical need trumps the patient’s right to due process, but if the clinical need is questioned by the patient themselves it becomes more arguable, does it not?

[Mr Hunt]

If the patient wishes to challenge their clinical assessment, they are free to do so and the Bill will not affect that in any way. It is important that that point is understood. In fact, the Bill is very narrowly defined for that precise reason, and I think that is why the Attorney-General felt comfortable saying that it complied with the ECHR.

In conclusion, we have had a constructive debate on this very important and sensitive issue, but there are broader lessons to be learned about the importance, more generally, of mental health issues, and I and my colleagues in the ministerial team will take those very seriously as we progress. I am grateful to all hon. and right hon. Members present for their contributions to this debate.

Question put and agreed to.

Bill accordingly read a Second time; to stand committed to a Committee of the whole House (Order, this day).