Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Newton of Braintree Excerpts

Wednesday 18th January 2012 Lords Chamber

[Lord Beecham]

My Lords, I congratulate the noble Lord, Lord Thomas, on raising this matter and moving an amendment that could greatly assist a family, or others, in the context of the tragic and ethically challenging circumstances that he has so clearly outlined and which the noble and learned Baroness, Lady Butler-Sloss, has also addressed.

There is another set of circumstances in which the noble Lord’s amendment might well be applicable. While entirely endorsing his amendment on the grounds that he has advanced, I would like to refer to the suggestion of Mind in relation to the occasional need for people in detention under the Mental Health Act to also receive legal advice concerning treatment that may be prescribed for them. The system allows for legal aid to challenge the detention of someone who is being treated in a mental health facility but not in relation to treatment that might be proffered, or indeed insisted upon, by those in whose charge a patient might find himself.

Mind has provided helpful advice to people in detention who are unable to give consent for treatment. I will quote briefly from the document it has produced which is available to those in that position. The document outlines a whole series of things, including the definitions of various matters and persons, and then it asks:

“Can I be treated without giving consent to the treatment?”.

It goes on to say that,

“if … you have the mental capacity … you are generally entitled to refuse it and no undue pressure should be placed on you. However, the law does allow treatment to be given to an adult without consent where the adult lacks the mental capacity needed to give consent and where certain sections of the Mental Health Act apply. If you are experiencing mental distress and are offered treatment, you need to be aware of any legal powers that could be used if you refuse. However, the powers must not be used as threats to coerce you into consenting, and if you feel this is happening”—

this is the crucial point—

“seek independent legal advice and consider making a complaint”.

It suggests discussing concerns with a general practitioner and so on, and goes on to say:

“If you are under 18, the law is complex and it is best to seek specialist legal advice. It may be that you can consent on your own behalf, but this does not necessarily mean you have the same right to refuse. Others, such as your parents, guardian … may be able to consent on your behalf”.

Although the circumstances are very different and, I hope, of a less tragic character than those that have motivated the tabling of this amendment, there is a similarity in the situation of the clear need for legal advice to be available to people being detained under the Mental Health Act with regard to the treatment envisaged for them by those in whose care they find themselves. I would hope that the Minister will accede to the argument advanced hitherto by the noble Lord, Lord Thomas. In that event, the amendment would also cover the circumstances that I have outlined and which Mind has helpfully suggested.

[Lord Newton of Braintree]

Perhaps I may briefly intervene, having been frightened off by the fact that no one else, other than lawyers, has dared to speak this afternoon—it is just the Minister and I who share this disadvantage, disability or whatever it is. On a number of occasions I have declared an interest as chair of a mental health trust, which is no longer the case because it merged with another one on New Year’s Day. I am now fancy-free as far as the NHS is concerned for the first time in about 15 years.

However, it means that I know a certain amount about this issue. It occurred to me, too, that mental capacity issues appear to be covered by this amendment. It would be very helpful if the noble Lord, Lord Thomas, could tell us whether he intended that. It would also be helpful if the Minister could tell us whether his interpretation is the same as that of noble Lords on the opposition Front Bench; namely, whether this proposal would provide additional protection or access to legal aid for the relatives of someone who has been ordered to have treatment which they think is wrong, and which the subject of the treatment cannot challenge for mental capacity reasons, but where there should be some right to raise a challenge to the professionals.

[Lord Beecham]

I am very grateful to the noble Lord for his intervention. On behalf of all those who have benefited from his wisdom and experience as chair of a mental health trust, perhaps I may express the gratitude that they would wish no doubt to convey to him on this aspect of his very long and very distinguished public service.