My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved accordingly, and, on Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
8: After Clause 4 , insert the following new Clause—
“Renewal of detention
(1) Section 20 (duration of authority) of the 1983 Act is amended as follows.
(2) In subsection (3)—
(a) for paragraph (a), substitute— “(a) if he is a medical practitioner, to examine the patient and to arrange for another registered medical practitioner to examine the patient, or (b) if he is not a medical practitioner to arrange for two registered medical practitioners to examine the patient”; (b) in paragraph (b)— (i) for “him” substitute “them”, (ii) for “if it appears to him that the conditions set out in subsection (4) below are satisfied, to” substitute “if the requirements of subsection (4) are satisfied the responsible clinician shall”. (3) After subsection (3) insert—
“(3A) The report to be furnished under subsection (3) shall be founded on the written recommendations in the prescribed form of the two registered medical practitioners including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) are complied with and each such recommendation shall include—
(a) such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in paragraphs (a) to (c) of subsection (5), specifying whether other methods of dealing with the patient are available, and (b) a statement of the reasons for that opinion so far as it relates to the conditions set out in paragraph (c) of that subsection, specifying whether other methods of dealing with the patient are available and if so why they are not appropriate.””
The noble Lord said: My Lords, the purpose of Amendment No. 8 is to ensure that, before a patient’s detention is renewed, the renewal receives the same degree of consideration as the original order. The principle behind this is that the renewal of a detention might—and is often certain to—raise considerations as complex as those which underpin the making of the original order.
The amendment therefore requires that the process involved in the initial section is duplicated. This is achieved by requiring two medical practitioners to examine the patient before renewal can take place. I have already summarised how the renewal of an order on a patient, after six months or a year, raises the same issues as those in the decision to make the first order.
When a patient is in the first stages of a very acute crisis that gives rise to the original order, the symptoms the patient shows are often very florid. The diagnosis at that stage may make the initial order rather easier to make than a renewal some time later. When one reaches the stage of a potential renewal, it is very likely that the patient will have undergone some treatment and that their symptoms may therefore be less florid. They may appear, in certain ways, to be irrational. Irrationality, however, is not a qualification for falling into the category of mental disorder, as speeches, at least in another place, often illustrate.
I therefore suggest that to secure the safety of the patient—who may be in a rather more benign condition and may be at risk of misdiagnosis—the same quality of assessment, by appropriately qualified medical practitioners, is required. I do not begin to understand why the Government say that the examination by two medical practitioners is necessary only at the outset of the compulsory process. From talking to the many experts in this House on the diagnosis of mental disorder and various psychiatric conditions, and to many others involved in the world of psychiatry, I know that diagnosis does not necessarily become easier as the patient’s disease progresses.
The amendment also includes a requirement for examination and certification by two medical practitioners if the renewal is supervised by a health professional other than a medical practitioner. In this context, the 2004 Bill, which the Joint Committee considered, was an improvement on the Mental Health Act 1983, in that a renewal was overseen by the mental health review tribunal, as it was called in that Bill, with access to a panel of experts. Plainly, therefore, when the Government produced the draft Bill that went before the committee in 2004, Ministers were of the view that verification by a panel of experts for renewals was necessary. With the change from the 2004 draft Bill to the current Bill, that safeguard has been lost. This amendment would provide an alternative safeguard, with a similar requirement for more than one medical opinion. I beg to move.
I support all that the noble Lord, Lord Carlile, has said, and I hope that the Minister will acknowledge that there is a real issue here that deserves a positive reaction from the Government. We have to listen to what the professionals are telling us. They are saying that renewing a detention order should not be an easy process, and that the 1983 Act facilitates the continuation of compulsory detention in too easy and straightforward a way. As the noble Lord said, the circumstances in which a decision to detain a patient is made initially are often much more clear-cut than those that obtain later, when the patient has received treatment and has been stabilised. At that later stage all sorts of question marks can arise over how ill a patient still is and what the nature of his illness is. Diagnoses frequently change over time, and they do not necessarily remain set in stone. All this argues for as much clinical rigour to be applied to the renewal decision after six months or a year as to the decision to detain the patient in the first place. If one accepts that idea, the proposals in the amendment are surely compelling.
We are at a time when increasingly the evidence base for medical decisions has assumed paramount importance, and rightly so. Any diagnosis of a mental disorder needs to be based on objective clinical evidence. The weight and validity of such evidence can only be evaluated by those who have the necessary medical qualifications to do so. I was 100 per cent with the noble Lord when he said that it should not be enough for someone who is not medically qualified and who may have played no part in the original decision to detain a patient to assume responsibility for renewing the detention order; yet that is what we shall get if the Bill goes through in its current form. The noble Lord was right to remind us that in the 2004 draft Bill renewals would have been overseen by a tribunal with access to a panel of experts, and in this Bill we no longer have that safeguard.
I am worried by the fact that we live in a risk-averse culture. If we leave decisions about renewal of detention to one individual—and not necessarily a medically qualified individual at that—we may well see defensive practice rearing its head even more than we do now. That prospect is not appealing. I hope the Minister will listen carefully to these arguments and above all will listen to the united voice of the profession, which is saying that the Government have quite simply got this one wrong.
The Government have rightly upheld the 1983 Act requirement that a detention order, whether made under Section 2 or 3, must be supported by two medical recommendations. On the other hand, as the noble Lord, Lord Carlile, has indicated, the assumption of the renewal clause seems to be that renewal is just an easier matter altogether and does not require a doctor, let alone two doctors, to make that decision. In fact, it is often harder to make those decisions at the time of renewal. Even when the presence of mental disorder may remain evident, the difficult issues are those of nature or degree. The judgment needs considerable training and experience in managing psychosis if one is to get those rather sensitive issues right.
It is important to note on a different side of this that the UK’s Council of Disabled People is opposed to these clauses, which extend the range of professionals who can detain patients. It asserts that,
“individuals will not have the same positive therapeutic relationship with their counsellor, psychologist, psychotherapist or community mental health nurse if they have detainment powers. It is less likely that individuals will seek help if the healthcare professional has these powers”.
That is the service user view. The professional view on the one hand and the service user view on the other seem to line up behind one another.
I understand that the assumption behind the proposed change is that a skilled psychologist may be able to decide upon the renewal of detention in the case of patients with personality disorders whose treatment may be predominantly psychotherapeutic or educational. I agree that in cases where there is no mental illness a consultant clinical psychologist could act as the responsible clinician. However, if the Government wish to leave the legislation open to this possibility—in my humble view, reasonable—then the Bill will need to be amended to clarify the extent of qualification required for the job. My key point is that the legislation must also be clear that for the renewal of detention of a patient with a mental illness—we are talking about a psychosis here—two medical recommendations should be required, just as the Bill requires for the original detention. It is a matter of being clear about psychotic illness on the one hand and personality disorder on the other.
We have a personality disorder unit in the East London and The City Mental Health NHS Trust, where I am chairman. My understanding is that the treatment regime for our patients in the unit can be complex, including a mixture of medication and a range of therapies. In such cases two medical recommendations would be essential. Of course, if the therapeutic benefit test amendment is lost and people can in future be detained for behaviour, control and education alone, then we could find that a nurse who is providing some basic skills classes could approve the renewal of detention in order to continue her classes. I am sure that this is not the intention of the Government. I raise this slightly extreme example only because I think that we need to be conscious of where this Mental Health Bill is leading our mental health services. Is this really the direction of travel that we want?
The Bill as it stands extends to other professionals the role of responsible clinician for a wide range of decisions. The amendment applies simply to one. In particular, I would be very concerned about a clinician who was not a psychiatrist initiating community treatment orders and recalling persons subject to community treatment orders to hospital. We will no doubt return to that issue when we debate Clause 25. In conclusion, I urge the Committee and the Minister to support the amendment, to ensure that only clinicians trained and experienced to assess psychiatric patients, and who have the understanding of treatments, their side effects and potential benefits, have the authority to renew the detention of mentally ill patients.
There is one occasion in the 1983 Act, in Section 141, where you can have the renewal of detention at the say-so only of two specially chosen doctors, appointed by the president of the Royal College of Psychiatrists. That is the renewal of detention of Members of Parliament. I find it very interesting that when they were considering this issue in 1982, Members of Parliament singled themselves out to have their renewal of detention by specially appointed doctors chosen by the president of the Royal College of Psychiatrists. Would that we were all so lucky.
In supporting this amendment, I want you to feel for a moment what a patient feels like after six months of detention. Remember that when you were admitted, it would have been a very frightening and difficult to remember experience. You would probably remember the GP, the police and the journey, but everything else would be a bit hazy. Now you have had six months of treatment, probably still have symptoms—not as terrifying as they were six months ago—but are feeling a bit better clinically. However, you may still feel very resentful about being detained. The symptoms are abating, but you are now more concerned about getting out, having somewhere to go and resuming life, getting back to where you started. You are frustrated that, just as you begin to feel a bit more normal, you are under threat of continuing detention. The clinical team has a much greater dilemma than when first faced with the overtly ill person. It is not an easy decision whether to continue with the compulsory treatment in detention. It is a matter of weighing up all those clinical symptoms and assessing compliance and likely co-operation with rehabilitation care plans. Many of us feel that that is when a second opinion is valuable. Determining whether a patient can be discharged requires careful handling of risks and benefits to others.
The 2004 Bill was an improvement on the 1983 Act, as has already been noted, because the renewal was overseen by the tribunal, with access to a panel of experts. That safeguard has, sadly, been lost. The amendment provides an alternative, with a similar requirement for more than one medical opinion. The noble Baroness, Lady Meacher, pointed out that it is possible for a patient to be detained for up to a year or so on the say-so of a responsible clinician who is not a doctor—one nurse, one psychologist or one occupational therapist.
I ask the Minister and noble Lords whether they would be happy at the prospect of themselves personally, or their family members, being detained for up to a year on the decision of someone who is not a consultant psychiatrist without the need for that person to consult anyone at all who is qualified. I am not happy with such a prospect. I know that clinical practice has changed enormously and that to make use of clinical teamwork and clinical time it is good that members of the team should be consulted—and approved mental health clinicians should certainly make a big contribution in the decision—but I am trying to imagine a clinical situation outside of this in, for example, treatment of patients with physical disorders, where we would leave such major decisions to someone who was not a consultant in his or her field.
Although I would like team members to be consulted, I would like the responsible clinician to be a psychiatrist, and a second doctor to be involved, to give equivalent rights to someone who is being detained.
I heartily endorse what previous speakers have said. I am sorry that I have intervened so late in the debates on this Bill, but circumstances have precluded me from taking part previously.
I was recently asked to intervene in the case of a lady who had been labelled by her local social services department as having Munchausen syndrome by proxy. She expressed severe concern about the safety and welfare of her children against threats that were later proven to be correct. But the social services department decided that she was paranoid and a danger to herself and other people. She was sectioned under Section 2 of the Mental Health Act. When that diagnosis was challenged, the psychiatrist, a locum at the Central Middlesex Hospital, changed the diagnosis to schizophrenia. I had known the lady for some time and—although I am not medically qualified, but have contact with psychiatrists through my other activities—was fortunate enough to find a psychiatrist who was prepared to examine this lady on a pro bono basis. He travelled all the way up from the west of England and found that there was nothing wrong with her, apart from the fact that she could perhaps be described as an overanxious mother. This lady was threatened with being forcibly medicated, the strong-arm boys were actually brought in and a court order had to be obtained to prevent that forcible medication. The situation was so Kafkaesque that one could not believe that it was happening in this day and age. But it did happen and, thank goodness, when the case came before the mental health tribunal, the woman was discharged with no labels attached to her name.
That was fortunate but she might not have had that benefit if someone who cared about her had not intervened. It is very important that suitably qualified people sit on those tribunals.
This issue was put to me very simply by a psychiatrist when we were discussing some of the ongoing problems with patients. When somebody first presents and the acute crisis occurs, and several healthcare professionals have to be involved, it is pretty obvious that that person is very seriously disturbed. People with psychological and psychiatric illness, though, over time also get other illnesses. It may be that their psychiatric condition has ameliorated but other physical illnesses emerge that may aggravate their symptoms and be mistaken for ongoing disturbance. This population are particularly at risk of some diseases. They tend to be heavy smokers, who are at risk of developing lung cancers, which develop silently. Lung cancers can metastasise to the frontal lobes of the brain and present with disturbed behaviour.
If somebody is retained under compulsion because of a disturbance of his mind, it is absolutely crucial that after six months the diagnostic processes are gone through again. Medical training and the training of the psychiatrist incorporate complex diagnostic training. The other disciplines that will be able to be involved have not received that complex physical diagnostic training. Indeed, nurses may have trained purely in mental health—that is not to denigrate their skills, it is simply that they have come up through another path. It is terribly important that we remember that the subtlety of diagnosis on review may be much more difficult than the initial barn-door presentation.
Amendment No. 8 concerns patients whose period of compulsory treatment under the Act has come up for renewal. A renewal requires a report to be submitted. The amendment first requires that the renewal report to the hospital managers includes a recommendation from two doctors that the patient continues to meet the conditions for compulsion.
Under existing legislation the renewal report is based on the recommendation of one professional, the patient’s responsible medical officer, who is the doctor in charge of the patient’s treatment. We believe that to require the recommendation of two doctors is unnecessary. Of course we recognise that renewal is not an easy process. Good practice requires an ongoing assessment of the needs of a patient and the input of a multi-disciplinary team together with the patient. That is reflected in the code of practice, and will be included in future editions. So the report submitted will be the result of a continued dialogue between several professionals and the patient.
We must remember that a renewal report also triggers the hospital managers’ consideration of whether a patient should be discharged. Hospital managers’ hearings can take account of evidence from all the professionals directly involved in the patient’s care; for example, his social worker and his named nurse. Relatives and carers are also invited to contribute and the patient can have representation. It is therefore not the case, nor shall it be, that a patient’s continuing compulsion is based on the views of one professional.
The amendment would also allow doctors to provide the recommendations in the renewal report. That undermines the policy that professionals should not be prevented from carrying out functions that they are competent to perform. To do so would not be in the best interests of patients and would not contribute to the modernised, flexible workforce that currently exists and with which we are trying to bring this legislation in line.
All responsible clinicians will be highly skilled professionals and will provide the necessary rigour. Unlike responsible medical officers, responsible clinicians will be trained and approved for that specific role. The minimum approval criteria, including the competencies required, will be set out in directions. A draft of these has been made available to your Lordships for information. One of the competencies is the ability to identify the presence or absence of mental disorder and the severity of the disorder.
From this pool of skilled, trained and approved professionals, a patient’s responsible clinician will be selected because they have the skills and expertise that best meet the particular patient’s treatment needs. In many cases this will be a doctor, because a doctor’s skills will best meet the patient’s needs, but there will be cases where treatments which only a doctor can provide are not the most significant part of a patient’s care package. For example, in the case of a patient who is receiving mostly psychological intervention, the patient may be best served by a responsible clinician who is a psychologist.
A patient’s responsible clinician will have overall responsibility for their case. Not only will they be the clinician with the skills most appropriate to the patient’s needs, but they will be the professional with the most comprehensive knowledge of the patient’s current overall condition. It therefore makes sense for this person to provide the renewal report. It is not appropriate to require a doctor who is not the patient’s responsible clinician to draft the renewal report. This is inefficient and not in the best interests of patients.
The amendment would require the renewal report to include the reasons for recommending that the conditions for compulsion are met, whether there are alternatives to compulsion, and the reasons why these alternatives are inappropriate. As the Committee will be aware, the renewal report, which is a statutory form, already requires the responsible clinician to set out the alternatives to detention and why treatment cannot be provided without compulsion. The code of practice also requires the hospital manager to consider all evidence as to whether the conditions for compulsion under the Act are met. This includes a written report from the responsible clinician covering the patient’s care and treatment, his care plan and all risk assessments. The responsible clinician is required, under the Act, to consult one or more other professionals involved in the patient’s care before submitting the renewal report. A report of this consultation is also considered as part of the hospital managers’ hearing.
The arrangements in the Bill for considering whether a patient’s compulsion under the Act should be renewed are thorough, robust and sufficient to protect patients against continued compulsion, unless absolutely necessary to prevent them coming to harm, or harming others. I therefore urge the noble Lord to withdraw this amendment.
Did the noble Baroness alter a single word of her brief from what was written down for her before the debate started, or did she just plough on, ignoring absolutely everything that was said behind her? I watched the noble Baroness very carefully from this side of the Committee: there she was, following a detailed brief with her finger. She is not the only person to do so; I have seen it done by our Government. It is a thoroughly unsatisfactory way of answering points raised by very distinguished Members of the Committee.
Indeed, in the House of Lords we have the most distinguished people available in many areas, including the very important area of mental health. I listened with care to exactly what noble Lords were saying and varied my brief. This Government have considered these issues carefully and I reflected what they believe. That does not mean that I was not listening with the utmost care to what noble Lords were saying, and taking what was said into consideration. We will continue to do so.
The noble Baroness described the situation for a patient under ideal circumstances. In my experience—and I have had quite a lot to do with mental hospitals during my lifetime—this is the poor relation of the hospital service. Very rarely do you get a continuation of doctors, let alone nurses or supporting staff, on wards. What would happen in a case like the one I illustrated, where most of the staff could hardly speak English? A few could, but most could not. The consultant, although probably very good, was not an English national. What happens in those situations? It cannot be satisfactory when the full staff are not there, and there is no one to note continuity in the patient’s records or behaviour.
Before the Minister responds further, it may be helpful through the Committee to inform the noble Baroness, Lady Masham, that there is provision at several junctures during the detention for treatment, at which a patient will have a second opinion through a formal system involving appointed doctors under Clause 58. That, I think, responds to her concerns.
In response to the specific case raised by the noble Countess, and her fears, which I entirely understand, that a patient will not be looked after and listened to by one person throughout their care, that is one reason behind what the Government are doing: to ensure that the responsible clinician can take those decisions. That person will have been responsible for the patient throughout, will best know the person and will have their confidence.
I am grateful to those who have taken part in what has become an interesting and lively debate. I cannot aspire to the dash, style and pizzazz of the noble Earl, Lord Onslow, but, if he will allow me to say so, I may be slightly more gallant than him this afternoon in thanking the Minister for speaking in such detail in answer to the amendment. I listened to her every word with care and I must say that my conclusion is that the Government are approaching the issue with eye-watering complacency, which causes me deep regret. The noble Baroness has listened to a number of speakers in this debate, of whom the majority—I do not include myself in this—are real experts in the field about which we are talking. They have had their hands—literally, their healing hands—on the patients of whom we are speaking.
When a Government change their mind, one always looks for reasons. The Government have changed their mind on this issue. It is absolutely clear from the Government's attitude to the 2004 draft Bill that they believed at that time that additional safeguards were needed. That is presumably why they included those safeguards in the draft Bill and it is for exactly those reasons that the committee, which I chaired, shared their concern that those additional safeguards were needed. The Government have now withdrawn from those safeguards to a position in which they are saying that the 1983 Act provides perfectly well for renewal. No cogent reasons have been given, other than—if it be a reason—that the 1983 Act works reasonably well so there is no reason to change it.
The noble Baroness spoke about competencies. I urge the Committee to beware of the word “competencies”, which arises in all forms of qualification approval in the public sector these days, not least in the legal profession and in the appointment of judges. It usually involves self-assessment or, at best, rudimentary assessment by others. Competencies are no substitute for recognised professional expertise; the word means something quite different. I feel great disappointment at what is turning into the dumbing-down of the skills required for renewal, rather than the approval expressed implicitly in the draft 2004 Bill for increasing the requirements.
The Joint Committee on Human Rights was troubled about this part of the law and asked the Government to explain why they thought that the current situation under the 1983 Act was compatible with the Human Rights Act and the convention. The Bill as a whole has been certified as compliant with the convention, but it would be of great assistance if the Minister could respond on this point—I apologise for not raising it earlier. We can then be clear on whether the Government are right.
It would not be appropriate to divide the Committee on this matter today, but it is currently my intention—and possibly that of others—to return to the issue. With that in mind, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 agreed to.
9: After Clause 5 , insert the following new Clause—
“Single gateway for treatment
Section 3 of the 1983 Act (admission for treatment) is amended as follows—
(a) in subsection (1) after the words “to a hospital”; and (b) in subsection (2) after “a patient”, insert “who has been admitted to hospital for assessment under section 2”.”
The noble Baroness said: There were some good things in the 2004 Bill which have sadly been omitted from this Bill. One was to set up a single gateway into compulsory powers under which every patient had a 28-day assessment period before being either discharged or placed on a compulsory treatment order by a tribunal. Under the 1983 Act the assessment period under Section 2 may be bypassed, and some patients placed immediately on a treatment order under Section 3, which enables clinicians to bypass an early application to the tribunal. There is a right of access to the tribunal to challenge each order. The purpose of this amendment is to provide a single gateway into the system for the exercise of compulsory powers, similar to that in the 2004 Mental Health Bill, to ensure that any individual who is potentially to be detained and treated against his or her will in hospital always undergoes a period of assessment before that occurs. This approach was also recommended by Ginevra Richardson’s expert committee, and adopted for the 2004 Bill.
The merit in that is that circumstances change clinically, the nature of the disorder may change, and it is always a mistake to assume that because somebody has had it before, this is another episode of the same. I have seen many such mistakes made when people are readmitted, harking back to what was said by the noble Baroness, Lady Finlay of Llandaff, in her response to the previous amendment. Something seriously amiss has happened in the patient’s life to justify intervention under the Act. The factors that precipitate the detention and their impact on the patient need to be assessed. The single gateway provides for an early tribunal when admitted, and a second bite at the appeal cherry if they are then subsequently detained.
This has been supported for a number of years by Jones’s Mental Health Act Manual, the established authority on the Mental Health Act for practitioners. It was also encouraged in the first code of practice for the 1983 Act, which I made a contribution to writing. Chapter five of the 1999 revised code of practice gives a rather longer discussion of when Section 2 should be used and when Section 3 could be, and suggests that the frequently admitted patient might come in on a Section 3. Since then, the Mental Health Act Commission has noted an increase in the use of Section 3, but it does rather miss the clinical point about the purpose of assessment and the greater opportunity for an early tribunal.
We cannot get the full impact of a single gateway into the 1983 Act because the role of the tribunal in authorising compulsory treatment has been omitted, but the amendment could get us near enough to doing so. I stress that clinicians consider that what is proposed here is normal best practice, but not all psychiatrists have followed it, and I think they probably should.
It becomes particularly important in the case of any form of supervised community treatment, because in theory someone could be admitted for treatment directly, remain in hospital for one day and then be placed on supervised community treatment. The Government’s response will rightly be that that would be rather bad practice and that we would expect people to behave better. Nevertheless, these very serious decisions, if we are to take them, require considerable in-patient assessment, and if we have a single gateway into care, a patient will be guaranteed a proper and thorough assessment each time. I beg to move.
The noble Baroness speaks with tremendous authority on this issue, and I can only agree with all that she said. Simply from a practical perspective, we need to focus on how valuable it is for an assessment to be carried out in all cases before there is any question of compulsory powers being exercised. Having listened to psychiatrists talking about this issue, I am convinced that this concept of a single gateway is right. It is sometimes very difficult for a doctor, when confronted by a patient in acute mental distress, to make an accurate diagnosis about that person’s needs in a very limited time. Snap judgments can be wrong. That difficulty can occur even when he knows the patient already. To admit the patient for assessment buys him the necessary time and ensures that the essential preconditions for compulsory admission to hospital are present. Chief among those conditions is that the patient has a mental disorder as opposed to suffering from anything else, such as temporary intoxication or, as the noble Baroness, Lady Finlay, said, a brain tumour, and that compulsory treatment is necessary to avoid significant risk to the patient or to others.
The noble Baroness was right: we do need to remind ourselves that, for an individual even to put himself in the running for compulsory detention, something very major must have happened that brings him to a state of mental crisis. Even if the doctor has dealt with the patient before, he cannot necessarily prejudge how such a crisis should best be handled. Whatever is the matter with the patient now may be different from whatever was the matter before, and all this argues strongly for this amendment.
The noble Baroness was right again to remind us that the 2004 Bill provided for an automatic assessment period before a care plan is drawn up. I hope that the Minister will not tell us, as she did in response to the last amendment, that this amendment is strictly unnecessary because it accords with best practice. If I were to be cruel about the Minister’s last reply, I would say that she was preaching to us an exercise in cost-cutting in the National Health Service. I hope I do not misjudge her—I am sure that she is not of that frame of mind—but that could be what lies behind the Government’s answers.
I hope that the Government will look positively at trying to replicate in this Bill the idea from the 2004 Bill, because under that Bill the patient would either have been discharged or have had his case considered by a tribunal. The amendment in effect proposes a right for all patients to apply to a tribunal. That is in the spirit of what the Government accepted before as being appropriate, and I am sure that it is right.
I support the noble Baroness, Lady Murphy, and the noble Earl, Lord Howe. As many noble Lords know, I spent several years chairing an NHS trust which had a major mental health component. I agree with the noble Earl that we should keep away from saying that best practice means that X or Y will be done. The problem is that in a very stressful ward with staff and bed shortages best practice does not always apply. Any of us who have had much experience of the system would say that at best it applies, at worst it does not apply, and that a lot of the time best practice is somewhere in the middle and is applied some of the time. For that reason, it is important that we go back to the principle accepted in the 2004 Bill, that there is a period of up to an up to 28 days that gives people a breathing space. The noble Baroness, Lady Murphy, was right: in particular, if we move towards compulsory treatment in the community, it is key that people have that breathing space.
I also want to comment on the point made by clinicians who have argued that patients who are already well known to the service should not require this period of up to 28 days because they are revolving-door type patients, have been admitted before on a voluntary basis or, having lacked capacity, have not objected to being there. Those arguments are profoundly wrong. If compulsory powers are to be contemplated, as the noble Baroness and noble Earl have said, the situation has in some quite profound way changed. The patient may now object to being in hospital or, significantly, may object to the treatment, which can be very unpleasant, or may have got worse. For those reasons, I support this important amendment.
I shall be brief. I do not want to repeat what other noble Lords have said, but I want to register my support for this amendment. Under the current provisions of the 1983 Act, most patients who come under the compulsory regime defined in the legislation are admitted under a Section 2 28-day assessment order. As my noble friend Lady Murphy, mentioned, an increasing number of patients are placed on a Section 3 treatment order for a maximum of six months. One reason for this is that only Section 3 patients have the right to aftercare under Section 117. Psychiatrists have told me that that is why Section 3 is popular. The amendment Bill would perpetuate that state of affairs.
Having been involved in assessments under the Mental Health Act 1983, albeit many years ago, I clearly remember the horror of patients who were placed under a Section 3 treatment order on admission to hospital without the benefit of the initial 28-day assessment order. The horrible trauma of the police, the ambulance, the professionals and so on must feel completely different to being admitted to hospital. When telling a patient “This is a six-month order”, it does not matter how many times you say, “But you may be discharged long before that—maybe after three or four weeks”. They cannot hear that, partly because of their state of mind at that time. All that they really take on board is “I am being banged up for six months”, which is not a small matter for patients. It is horrendous. This sounds like a minor amendment, but for service users/patients it is not.
Noble Lords have mentioned the clinical perspective where, however many times a patient may have been in hospital, there is always a need to look at the circumstances that caused the particular crisis, the symptoms at the time and so on. It may be that after a brief period of assessment within the 28-day order the patient could be discharged and the rather onerous six-month detention order may not need to be considered. The mental health services are increasingly well placed to provide therapy and support, although, as the Minister knows well, much needs to be done to extend that. The legislation should surely reflect the current and future aspirations of the mental health service rather than look back to a more hospital-based and detention-focused service. A further advantage of a single gateway is that a 28-day assessment order gives the patient early access to a tribunal. There is no doubt that that can be onerous for clinicians, but having abandoned the much more extensive role played by tribunals in the 2004 draft Bill, it is perhaps not unreasonable to suggest that this particular safeguard would be a reasonable one.
As has already been mentioned by other noble Lords, the 2004 draft Bill did seek to deal with the issue—I understand that it did so very well—but the major texts and the Royal College of Psychiatrists all support the single gateway as a valuable safeguard. Further, on the point made about Section 117 aftercare, this could be extended to Section 2 patients and, indeed, should be. That is fairly basic. So I hope the Government will consider the importance to service users of an initial assessment order and agree to this amendment.
As we have heard, Amendment No. 9 would require all civil patients to be detained under Section 2 when first admitted to hospital. Noble Lords have spoken with great expertise and authority on this, and I understand that this is not a minor amendment. However, I should say to the noble Earl, Lord Howe, that this has nothing to do with cost-cutting. What we are talking about in the Bill is the need to ensure that patients receive the best treatment available and that we make the best use of the resources available.
Of course, no patient should ever be detained without the need for detention being assessed first. Similarly, no patient should be treated without an assessment of what treatment they need. However, it does not follow that all patients who need to be detained under the Act need initially to be detained under Section 2. In fact, only around a quarter of those detained under Section 3 have been detained under Section 2 first. Many clinicians believe that Section 3 has a valid purpose as a primary form of detention in its own right. Patients who are known to mental health services and are presenting with the same symptoms as in previous episodes should be detained under the appropriate section. I hear what the noble Baroness says, but if it is known what is wrong with the patient and that “appropriate treatment is available”, Section 3 would be the most appropriate section. The simple fact is that they do not need to be detained for assessment, and arguably the person making the application and the doctors supporting it would be forced to claim something they did not truly believe. However, I recognise and accept the point that people may change between assessments.
We could try to tackle this by making the criteria for Sections 2 and 3 the same, but that would not be right either, because there are people who need to be detained for assessment precisely because it is not clear whether they need to be detained for treatment. It must be remembered that many patients have an ongoing relationship with mental health services, and people see the changes taking place. They stay in contact with services and may admit themselves as informal patients if they feel their mental state is deteriorating. These patients will be assessed and, where necessary, treated in hospital as informal patients. But if something changes and they then require detention under the Act, it may not be necessary for them to be detained for a further assessment under Section 2. In 2004-05 some 37 per cent of detentions under Section 3 were of people already in hospital. All patients detained under the Act are continuously assessed to ensure that the initial diagnosis is still correct and that the treatment remains appropriate. Patients admitted for assessment under Section 2 can still be treated even though there is no requirement to establish that appropriate treatment is available before they are detained.
Section 2 provides the right to reply to the tribunal in the first 14 days of detention, with a tribunal hearing within seven days. If the real issue behind this amendment is a desire to give all patients earlier access to a mental health review tribunal, this we believe is the wrong way to go about it. The Department for Constitutional Affairs is undertaking a series of programmes to improve the efficiency of mental health review tribunals in England and to shorten the length of time between application and tribunal hearing. In addition, the Bill provides for an order-making power that will enable the Secretary of State and the Welsh Ministers to reduce the period before a patient is referred to the tribunal by the hospital managers. Those safeguards will improve access to the tribunal.
In response to the noble Earl, Lord Howe, all patients detained under Section 3 are entitled to apply to the tribunal and will receive a hearing, on average, within six weeks of applying. The noble Baroness, Lady Murphy, asked whether someone could be placed under SCT after one day in hospital under Section 3. In many ways, she answered the question herself but, of course, someone can be brought under the powers of the Act only if they meet the conditions of Section 3. It is highly unlikely that someone brought into hospital under Section 3 would qualify for that the very next day. We believe, as do many clinicians, that the current admission structure, which enables Sections 2 or 3 to be used, is the most appropriate and I therefore ask the noble Baroness to withdraw this amendment.
I thank the Minister for that careful response. There has been a creeping increase in the use of Section 3 admissions since 1999, which many people—including the Mental Health Alliance and the college—are not convinced is in patients’ best long-term interest. I am a little worried that not allowing double access to the tribunal may be a cost-cutting exercise, because of the state of turmoil that the tribunal has been in over the past few years. That may be an added deterrent for the Government from having any further tribunals right now. I am not very sympathetic to that, but nevertheless I will consider the Minister’s response further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 agreed to.
10: After Clause 6 , insert the following new Clause—
“Provision of appropriate food and drink
(1) Section 58 of the 1983 Act is amended as follows.
(2) In subsection (1)(b) after “medicine” in the first line insert the words “, but excluding the provision of food and drink,”.
(3) After subsection (1)(b) insert—
“(c) the provision of adequate food and drink to a patient.” (4) After subsection (3) insert—
“(3A) Subject to section 62 below, a patient shall be provided with adequate food and drink at all times unless—
(a) he has consented not to receive adequate food and drink and either the responsible medical officer or a registered medical practitioner appointed for the purposes of this Part of this Act by the Secretary of State has certified in writing that the patient is capable of understanding the nature, purpose and likely effects of this decision and has consented to it; or (b) a registered medical practitioner appointed as aforesaid (not being the responsible medical officer) has certified in writing that the patient is not capable of understanding the nature, purpose and likely effects of the decision not to receive adequate food and drink or has not consented but that, having regard to the likelihood of its alleviating or preventing a deterioration of his condition adequate food and drink should not be given.” (5) In subsection (4) after “(3)(b)” insert the words “or (3A)(b)”.”
The noble Baroness said: Until recent years, it was always without question that patients in hospitals would be given food and fluids. That was absolutely automatic. Everyone knows perfectly well that, without food and fluids, every living creature will die. If anyone were to be sick in hospital, they would be fed. There was no doubt about that once, but not any more.
We all understand that some conditions and illnesses mean that a patient cannot take food in the normal way through the mouth, but for over 100 years there have been other ways to ensure that patients get the sustenance that keeps them alive, and those ways were adopted. Yet a few years ago—I am not sure when, as it made no headlines at the time—the medical profession decided to reclassify the custom of feeding hospital patients. It was henceforward to be called “medical treatment”.
Plainly, that classification is absurd. Is a mother giving a bottle to her baby giving that child medical treatment? Is a husband taking his wife out to dinner to celebrate an anniversary giving her medical treatment? Do we go to the Long Table in the Dining Room to receive medical treatment? Of course we do not, but the change in classification means that people in hospitals may no longer rely on getting their meals as an automatic part of hospital care. As that is now “medical treatment”, the doctors or other hospital staff decide whether it will be administered. That is a hugely significant change.
I do not believe for one moment that patients are routinely left unfed or that a large number suffer in this way. For some years now, however, I have become more and more concerned about evidence that is accruing that it is not uncommon for hospital patients to be starved to death, or to die for lack of fluid. I must remind your Lordships that that is a terribly painful way to die. In the latter stages of starvation, people are too weak to put forward any strong demand for food or drink, and they die.
I first drew attention to this situation in a debate reported in Hansard on 12 March 2003. I pointed out that the noble and learned Lord, Lord Mustill, was on record as saying, following the reclassification of feeding as medical treatment, that the law is now left in a morally and intellectually misshapen state. I quoted from an ITV programme that showed patients who had been left without food. One old man was lying in bed, weak and unable to speak. He was being given neither food nor water directly or by any other method. He took 18 days to die.
A lady told me that her husband, who was a stroke victim, had all fluids denied him without a word to him or to her. She demanded to see the doctor in charge and that her husband be given something to drink, or at least to moisten his mouth. He began to get better as soon as her insistent demands were met. I am told that later she was able to take him home and look after him there.
Evidence, which I hope the Committee will agree is incontrovertible, came from the other place. A friend and colleague, who was an MP for many years and had some heavy jobs and important responsibilities, has a wife who became very ill. He was taking as much time as he could from his duties to sit by her hospital bed. After three days he thought, “That’s funny. I can’t remember any occasion in the last three days when she has been given any food or liquid”. He asked the staff nurse about this, and she said, “Oh, we’re not feeding her”. He said, “Who on earth agreed to that?”. No one had. His wife was not told, nor was he; she was just denied food and liquid. That actually happened; it was the experience of a colleague.
On the day I spoke of these things in this Chamber I introduced my Patients’ Protection Bill, which would have given some protection to people who were being treated like this. The Government blocked that Bill, but the Minister, the noble Lord, Lord Filkin—who, I am sure, wanted to help; he was utterly sincere—told me not to worry, because the aims of my Bill would be achieved in the 2004-05 Mental Health Bill, which at the time was going through this House. Indeed, that Bill contained some words that might well have ended the appalling practice of starving patients. So I sat back and waited to see whether the noble Lord’s genuine suggestion to me, that it would all be all right in the future, came about. I am sorry to say that it did not. Things, in fact, have got worse.
That is why my amendments are on the Marshalled List. We were told—indeed, it was mentioned in the Queen’s Speech—that this Bill would amend the earlier Bill. Because I was told the necessary changes would happen in the earlier Bill, and this is an amending Bill, I tabled these amendments to this Bill. I would not normally have sought to insert them in a mental health Bill, but anything done by the noble Lord, Lord Filkin, for whom I have enormous respect, is quite good enough precedent for me.
I have listened with great care to almost all the debates on this Bill so far. I take this opportunity to register huge admiration for the level of expertise displayed by those who have contributed. This House and our country are greatly indebted to Peers such as the noble Baronesses, Lady Murphy and Lady Finlay, and the noble Lords, Lord Alderdice and Lord Carlile, who between them have years of hands-on experience of what happens with mental patients and with the law. This House provides the country with a wonderful thing: so much expertise from people who know exactly what they are talking about; and advice from the wealth of that experience just when we need it. How fortunate we are to have the benefit of that at no cost. I am only sorry that the Government take no notice, but that does not nullify the contributions made.
I would not presume to speak in a debate that belongs to those professionals, but I have listened with great care and I have attended several meetings about the Bill. I was on the committee studying the previous one and I understand exactly what this Bill is about. I tabled my amendments not because I judged a mental health Bill to be the right place for them, but because of that precedent.
I am also told that my amendments are unacceptable because one of them would mean that patients who have anorexia could not be helped because they do not wish to be fed, and that the amendment would harm their treatment. That depends on how one reads it. It says that a patient “has not consented”, but it is not a matter of that. In any case, we could argue that one way or another. The two final amendments make quite clear what I am aiming at; they say clearly that the assessment should be changed:
“In section 64(1) of the Mental Capacity Act 2005 in the definition of ‘treatment’, after ‘procedure’ insert ‘but does not include provision of adequate food and drink’”.
It is amply clear that I am trying to protect patients by disallowing doctors to refuse them food or liquids.
There is urgent need for the law to intervene in this matter. My Bill to save patients, as I have said, was blocked. The pious hope that the previous Bill would save them has not come true. I am afraid the situation has worsened. Recently, a hospital doctor, speaking in court under oath, said that two or three patients a week were dying in his hospital alone because they were not being given food or fluids. He said, “I see it happening all the time”.
After the most recent BBC programme on this subject, which was broadcast just before last Christmas, the presenter received a huge number of follow-up calls telling of individual experiences of friends, acquaintances or relatives who had been denied food or fluids. One complaint came up time after time, and I would not be surprised if Members of the Committee had not heard it in their own spheres: a cup of tea, a glass of water or even a plate of food would deliberately be placed where a bed-bound patient could not possibly reach it and after an hour or so a nurse would come bustling in and say, “Oh, not hungry today, Mr Jones?”, and without receiving an answer would just remove it. That complaint was made dozens of times. There were nearly 140 complaints recounting experiences such as I describe. Those things worry me greatly.
Of course I understand how busy nurses are. I appreciate that feeding patients takes time and patience, but we really cannot go on like this. The person in charge must make sure that the staff feed the patient, appeal to relatives to give their help, seek volunteers—I think that many would be ready to help in this way—or allocate money for more paid help in feeding patients.
In what I believe is still, by and large, regarded as a Christian country, or at any rate a humane one, we must not stand silently by while sick people are killed by deliberate starvation. I know about elderly bed blockers. I read in the paper only last week that they are such a nuisance that they will be sent home and their family doctor will have to do any follow-up. I do not know whether that is true—one does not believe all one reads in the papers—but it was reported. I realise that some people are really rather a nuisance and their room is preferable to their company but I simply cannot accept that they should be deliberately done away with.
These amendments are framed with care. The matter is not always straightforward, and I tried to indicate that sometimes a patient may not want food for various reasons, or they may actually be harmed by it. These changes would reinstate feeding patients as the recognised norm. It would send the message that patients must be cared for properly. It will no longer be possible for medical staff, without the slightest opportunity for a friend or relative to comment or even to be told, to withhold food and drink from a patient. The seriousness of such an act will be underlined by the involvement of a responsible medical officer, as set down in the amendment, having to certify in writing why it is being done. The patient will have to be consulted. It will not be possible simply to put the notice “nil by mouth” on the patient’s record, masquerading under the guise that he or she is being given medical treatment.
I have had several instances reported to me of patients begging relatives to give them a drink or even just something to moisten their mouth but because those relatives humbly believe that the hospital must know best—and many do—they think there must be some important medical reason for the decision. They think that they are not important enough to argue against what is being done to their dear ones. I recall one woman who told me that when she finally gave in and gave her mother a damp sponge to suck, she was appalled to see that the gums and flesh inside her mother’s mouth were stuck together because her mouth was utterly dried up. A post-mortem on one old man showed that his tongue had rolled right back down his throat while he desperately searched for water.
If we fail to act, if we turn our backs and silently acquiesce with the practice of starving people to death in our hospitals, even if it only happens occasionally, real fear will spread in the minds of anyone over 65 if they learn they must go into hospital, especially if they have no friends or relatives to visit them. They are already scared; they fear MRSA or Clostridium difficile (CD), the new menace in hospitals, but this new fear will be even more terrible. Medical treatment is one thing; providing an essential for life is quite another.
The Minister may seek to deny that this amendment is appropriate here; if so, will he say where these amendments would be appropriate and whether he is happy to allow the present situation to remain? I beg to move.
In the rehab unit of a local hospital, which was also a place for very ill or dying patients, which I was visiting, I got to know a man who was very ill. One day I asked him if there was anything that I could bring him from home. His eyes lit up and he said, “Yes, please, a bacon sandwich”. The next day I brought him one and the day after he told me that he had enjoyed it very much.
Why should people be denied the little pleasures of life, especially in the last days of life? Why should they be starved and denied fluid? This did not even happen to Jesus Christ who was crucified on a cross. Denying food and drink to people who want it, as happened recently to a lady in the hospital in Norwich, is simply cruel and uncaring and piles on the concern of elderly patients and their relatives when they have to go into hospital.
I thank the noble Baroness, Lady Knight of Collingtree, for these humane amendments. We live in a very money-minded society. It is cheaper to kill than to keep alive. Surely, people should feel safe in hospital.
I rise briefly to support my noble friend who spoke extremely powerfully on an issue which it is not difficult to regard as highly emotive. I congratulate her on having championed it in the way that she has. It is hard to escape the view that there is a very real problem in many of our hospitals of the kind she has described, much as some may not want to confront the fact. We should all rightly be most concerned about it. I was appalled by the incidents which she described. Her amendments make it quite clear that food and drink should never in any circumstances be classified as medical treatment. I agree with that. In fact, up to this point, or rather up to the point when my noble friend raised the matter at Second Reading, I had always taken it that food and drink could not possibly be counted as medical treatment. By food and drink, I mean ordinary food and drink such as normal healthy individuals might consume by mouth. I do not want to put my noble friend to undue trouble but it would be helpful, if she has the information to hand, if she could tell the Committee a little more about the ruling by the GMC that has given rise to the need to make the distinction she is drawing.
I seek to be helpful to my noble friend but it is my belief that the Mental Capacity Act is not yet fully in force. Will the Minister confirm that? I very much hope that he will acknowledge the seriousness of the issues which my noble friend has raised in her amendments and that something tangible and positive can be done to address them.
The situation which the noble Baroness, Lady Knight, described seems to me to amount to nothing short of manslaughter. Have any legal actions been brought against any hospitals by the relatives of people to whom this has happened? I very much hope that the Government will take this amendment very seriously, and that if they cannot accept it as it stands, they will bring in one of their own; otherwise, I should be very happy to follow the noble Baroness into the Division Lobby. I hope that all Members of the Committee will take this very seriously. After all, let us remember that a great many of your Lordships, including myself, are well over 65. We would not have much hope if we ended up in hospital, would we?
I spoke during the proceedings on the Mental Capacity Bill when it was before your Lordships’ House. I have attended each of the Committee days, waiting for the opportunity to give my strong support to my noble friend Lady Knight. I do so as someone who is in no sense an expert although my record on feeling strongly about these issues is as long as your Lordships’ arms combined.
I will not repeat what my noble friend has said, except that she is absolutely right. There must be a profound respect for life, especially at a time when human life is at its most vulnerable—perhaps involving mental and physical health problems at the same time, which we must take into account. It must surely follow that any patient should receive adequate food and drink, subject to the provisos of my noble friend’s amendments. She may, of course, be considering amending her own amendments in due course, in the matter of anorexia and other issues, to make the amendments that she is moving acceptable to the Committee. Perhaps the Minister will help us on that.
I say all that by way of introduction—I have only two points that I wish to make. First, I wish to stress the importance of the very new United Nations Convention on the Rights of Persons with Disabilities. This was accepted by the United Nations General Assembly only on 13 December 2006. Article 25 of the convention specifically concerns health. Paragraph (f) of that adopted convention forbids:
“Discriminatory denial of health care, or health services, or food and fluids, on the basis of disability”.
By its own definition, this of course includes mental disability or cognitive disabilities of any sort. I hope that I am right in presuming that the United Kingdom will be, if it is not already, a state party to this very important convention.
Before we return to this issue later in the Bill, perhaps the Minister would very kindly do three things, either in his wind-up, or in a letter—it might be more convenient for him place a copy of the letter to me in the Library of the House. First, will he confirm that we either are, or intend to become, a state party to this extremely important convention? Secondly, will he give us a timetable—or at least an outline timetable—for the adoption of this convention? Thirdly, will he explain to me and noble Lords how he, his ministry and NHS professionals will abide by this very recent convention, which has not perhaps received the attention it deserved in the media because of the Christmas period between then and now?
My second point is to raise, in the context of this amendment, the growing fears among some, to which my noble friend Lady Knight has already alluded in graphic terms in her admirable and very disturbing speech—I hope and suspect that they are generally unfounded—that there might be a risk of those with mental and physical problems, unwillingly or unwittingly being starved and/or dehydrated to death in NHS hospitals. I will not repeat what my noble friend and other noble Lords said about this very important issue.
Some professional observers working in the service have, since Christmas, represented to me that to them the principle of saving life in the NHS is sometimes—not often—being subordinated to subjective judgments on the questions of so-called quality of life. That quality of life is all too often measured by what seems to me and to those professionals to be the wrong standards; that is, that of the mentally and physically fit and able, rather than people in their own terms.
I hope that that is generally wrong, but there is a bit of evidence for it. There is even more evidence that people are fearful, and that therefore it does become a reality, which I suspect the Minister and his colleagues will have to deal with. I see a growing paradox in the fact that for many years now, people were very glad to carry organ donor cards in order to give; yet now I am told that there is a growing grassroots movement, in which some people are being given, and wish to carry, what I can only term in shorthand “self-protection cards”. Should they go into hospital, they will attest through that card that they do not wish to be dehydrated and/or not fed. I have not seen these cards, but I am told that there is a growing movement to promote them around the United Kingdom. My noble friend Lady Knight, with her acuity and speed, has handed me one. It is orange, and therefore it is an all-party card. I will read to the Chamber from it. I never used to get this service in another place from my noble friend. I thought that I was her Parliamentary Private Secretary this afternoon, not the other way around. The human rights care card states:
“I direct any person who has care of me at any time to uphold and protect my right to life as guaranteed by Article 2 of the European Convention. Under no circumstances do I want food or fluid (howsoever delivered) to be withdrawn for the purpose—or a purpose—of hastening my death”.
I have no present intention of dying, but I hope my noble friend will get me one of these cards, which is now hastening its way back to her.
Perhaps the Minister has had the time to reflect on whether those cards have any force in law. Are they legally binding statements? If my present intention not to enter hospital turned out no longer to be true, and I had one of these cards and I was in hospital, is it a legally binding document? I wonder whether the Minister might be kind enough, having reflected on this issue, to draft a letter to me that can be placed in the House of Lords Library, giving a clear indication of whether the Government approve or disapprove of such cards. Perhaps the Government intend to introduce in parallel with the organ donor card a card such as the one that my noble friend Lady Knight has just drawn to the attention of the Chamber. I look forward very much to his reply in whichever form it comes, either orally this afternoon or by letter, or letters, later on.
It is the first time that the noble Lord and I have debated in any place since he and I were rookie councillors in the old City of Oxford council chamber. The noble Lord, who I greatly admire, was a representative of what was then thought of as old Labour, just as I was a representative of what was then thought of as new Labour—
I rise briefly to comment on the amendments. The noble Baroness, Lady Knight of Collingtree, has done vulnerable patients in this country a major service. She has highlighted the dangers and disasters that occur when there is bad nursing care and bad basic care. She has highlighted the mixed messages that have come from medicine and have created fear among the public. She has also alluded to her presumption that the Minister will say that the amendments fall outside the scope of the Bill. Indeed, I expect that he probably will come back to her with that answer, but that should not dent her campaign to speak up for the vulnerable.
I will try to clarify briefly some aspects for the Chamber. I declare an interest as I am on the BMA ethics committee. It has been said that feeding is a medical treatment. That is a very sloppy use of language. Artificial feeding is a treatment intervention, and we have to be very clear about that. Every patient has a right to have food and fluid. If they cannot swallow, and that is the problem, one has to look at the least burdensome way to maintain their hydration and nutrition.
My own view is that fluids and food should be uncoupled. There are many instances where people cannot drink or keep their fluid intake up, which can be critical in some days, but it is not so critical if they cannot eat for some days. It takes much longer for nutritional deficit to come in. However, severe dehydration can result in renal failure very quickly. The artificial means are at issue, which is, basically, whether you put a tube directly into the stomach. In thin people that is quite an easy procedure, but in obese people that can be very difficult. If not possible for some reason, you might end up with intravenous nutrition. That is very complicated and, therefore, a treatment procedure. It is more complicated than much chemotherapy, which is used in cancer care, and must be classified as a treatment. Intravenous nutrition is very expensive and has many potential adverse effects, including the risk of septicaemia. You can make patients desperately ill, or kill them, if you get the mixture you are giving them wrong, either in its composition or the rate at which you give it. We can go right from the simplest, but the most important, feeding and drinking, right through to parenteral nutrition, which is sometimes needed. There will be many hundreds of patients in this country today who will be on parenteral nutrition and whose life will be maintained by it.
It is also correct that there are patients who come in and cannot swallow. That swallowing assessment is usually made by a speech therapist. We live in a risk-averse culture, so there is a tendency to veer against trying some fluids again. I have been in a clinical situation with a patient who was not being given anything by mouth, because she had impaired swallowing. She desperately wanted a cup of tea. I made her that cup of tea and sat with her while she drank it. She managed to drink it down. She did not choke on it. She knew the risk of choking and I knew the risk of choking, but it was a risk that we were jointly prepared to take. I worry that the risk-averse culture that we have come to live in has meant that many nurses are finding themselves torn between wanting to let the patient try to drink again and knowing that there cannot be a speech-therapist reassessment—because of a shortage of speech therapists—for several days. It is also true that giving fluids is easy, whereas nutrition is difficult, as I said. You can keep patients at home with fluids run under the skin—subcutaneously—from a drip bag. You just put a nail in the wall—a picture hook will do—hang the bag on that and run the fluid under the skin. It is remarkably safe. You can even teach the family how to change the bag of fluid. Patients can stay at home with fluid going. Again, in our risk-averse culture that does not happen as often as it should, because people get frightened about doing things with drip bags at home.
When the Minister responds to this amendment, will he be able to promise the Committee and all the vulnerable patients in this country that inspection standards will look carefully and rigorously at fluid and food for people who are vulnerable? My profession may not love me for saying that he might also want to ask the medical profession to be very clear in its definition of what a treatment is and of what falls under good standard nursing care, which should be the right of every patient. Clarification about advance statements will also be helpful. They will come in and will be important for every decision made for a patient who cannot make a decision for themselves, because those statements will inform that decision-making. They will need to be taken into account as the decisions are formulated.
In a debate such as this, we very much miss Lord Carter, who worked so hard on the Mental Capacity Bill and on mental health. He, perhaps more than anyone, had knowledge and an ability to assimilate all the bits of information built up over so many years of experience. I am sure that the Minister will do admirably in his summing up and in his response to this very important amendment—important because of the principle laid out.
My long-standing and considerable affection for the noble Baroness, Lady Knight, is equalled by my admiration for her ability to touch sometimes upon real and important issues. She has done exactly that today, and I am sure that I speak for everyone on these Benches when I say that we support the purpose and spirit of her amendment. This Chamber is full of lawyers and other experts, such as doctors, who tend towards the theoretical. The noble Baroness tends to avoid the theoretical by highlighting the real, the practical and the human—the actuality of situations—and she has done that powerfully today.
What the noble Baroness has said has been evidence-based in every instance. The law is experienced in cases in which people refuse to take food, because hospitals have, from time to time, brought actions in the High Court to ensure that they are safe in their decision to compel patients to take food. The best-known case is that of Ian Brady, who was refusing to take food, and Ashworth Hospital was authorised to force feed him as part of his therapy. But we do not have anything like the same experience of actions in which a hospital is pursued for its failure to give food to a patient, because it is usually too late. As the noble Lord, Lord Patten, reminded us in another powerful speech, there are already international obligations to provide food to patients; the new United Nations convention to which he referred is the latest, but we have heard also about Article 2, one of the most fundamental provisions of the European Convention on Human Rights. There is a right to be fed and there is a right to expect those treating a person in hospital to feed that person.
Those of us who have elderly relatives—in my case, I am happy to say, an extremely feisty, determined and independent mother in her 90s—know that determined elderly people like her, who value their independence, still live alone and look after themselves, are afraid of what will happen to them if they go into hospital. When they are in their own homes, they feel very independent and are very capable. But sometimes, when an elderly person of a similar age has been taken to a hospital due to an episode of illness, they can appear to be completely disoriented and they feel utterly disempowered. The noble Baroness’s amendment would ensure that we could say to very elderly people, “You don’t need to be afraid to go into hospital, because you have some rights”. Those rights would be there, not only under theoretical international obligations, but written down, either in statutory form or in codes of practice.
I would like to hear the Minister say that the Government recognise that there is a problem, that from time to time some very bad cases appear, as described by the noble Baroness, and that it would be right, somewhere in the framework—whether in the Act or in codes of practice—to ensure that it is made clear to clinicians at all levels that potentially vulnerable patients cannot be left to starve and that they have the right to food and/or liquid—bearing in mind the problems expertly aired by the noble Baroness, Lady Finlay. I hope that the Minister will support at least some of the principles behind the amendment.
I congratulate the noble Baroness, Lady Knight, on taking the opportunity to bring before us what are clearly very important matters. She has waited patiently for two days. I am sure that she thought she might be moving the amendment on the first day, but we have all waited with anticipation. I was very concerned about what she had to say. I was also very concerned about some of the other remarks made by noble Lords about vulnerable people not wishing to go into hospital for fear of what may happen to them in a number of ways.
As a number of noble Lords have anticipated, I do not think that amendments to this Bill or to other Bills are the way forward. I clearly understand the need for us to ensure that the health service is absolutely clear about the principles under which food and drink should be given, and that there should be no doubt whatever in the health service about that. I shall describe later how I think that might best be done.
I particularly would like to underpin the comments of the noble Baroness, Lady Finlay. These are often very difficult clinical decisions that have to be made by doctors. I also think that we have to be understanding about some of the issues they have to consider when considering the patient’s best interests.
I completely agree with the noble Baroness that food and water, however delivered, should never be withheld if it is in the best interests of the person to receive it, and that the offer of food and water by mouth should always be provided. I also say that assessments of an individual’s best interests must be at the centre of decision-making on behalf of people who lack capacity to make decisions. That is true now, and it will be strengthened by the Mental Capacity Act when it comes into force later this year. It is, therefore, the person’s best interests that we have to consider when considering these amendments.
A best interest assessment about treatment entails a thorough assessment of someone’s condition, their prospects of recovery, the pain they are suffering and any burdens associated with available treatments, including invasion of bodily integrity and interference with human dignity. Let us be quite clear here: it will not always be in someone’s best interests to have every available medical means of delivering nutrition and hydration imposed on them.
I would like to follow up the comments made by the noble Baroness, Lady Finlay, in that regard. Where a patient cannot swallow, water can be provided by intravenous drip, but food can only be delivered by a tube down the nose or surgically inserted into the abdomen. That must surely be a medical intervention. Doctors and families will need to decide whether such treatment is in all the circumstances in the best interests of the patient. In doing so, they must have regard to what they know about the patient’s own wishes.
I understand that there are risks associated with artificial nutrition and hydration, as with any significant intervention. My understanding is that there is an infection risk. A fluid balance must be monitored to avoid waterlogging. Regular blood tests are needed to monitor the kidneys. It is common to have to manage diarrhoea and regurgitation. Nausea and vomiting may result in certain clinical risks.
There are circumstances where the provision of artificial nutrition and hydration might do more harm than good. For example, if the patient can no longer absorb food and water because their digestive system has broken down, it might be better to refrain from tube-feeding and instead continue to give good mouth care, sips of water and palliative care. My understanding is that the wording of the amendment might mean that artificial nutrition and hydration had to be continued in these situations. These will never be easy decisions to make. The Mental Capacity Act recognises that they depend on what is best for a person; it recognises that proper care and treatment should be given and not wrongly withdrawn. The intention behind the amendments and some of the speeches made today might be to remove choice or flexibility in these sensitive and very personal matters.
The noble Baroness, Lady Finlay, gave the example of a patient who desperately wanted a cup of tea, and said that in a risk-averse culture many practitioners might have been reluctant to give that patient a cup of tea. I understand that, but the noble Baroness also illustrated the reason why clinicians must have discretion in dealing with those issues, and why it is very difficult to describe in legislation how you would deal with such a situation. That is why some of the concerns raised today seem to be much more a matter of malpractice and negligence, rather than what is contained in the legislation. As the noble Baroness, Lady Barker, pointed out on Report in the Mental Capacity Bill, there is a world of difference between bad practice, which is inexcusable and in no way permitted by that Act, and the deliberate withdrawal of a patient’s treatment in that patient’s best interest.
The noble Baroness, Lady Knight, made some very serious allegations; she referred to patients being starved to death. I have great admiration for the noble Baroness; she was of great help to me when I was director of the National Association of Health Authorities, based in her constituency. I am very concerned to follow up any incidents that she knows of and am happy to meet her to discuss them. She has raised matters of clear and evident concern.
The noble Baroness also talked about problems in feeding patients in the health service more generally. She raised the issue of bedblocking—a term I deplore. The duty of the health service is to give proper care and treatment to patients. It may often be the case that in order to prevent patients becoming institutionalised, and to enable them to go home or into other settings where they could be as independent as possible, various approaches need to be taken to enable people to get up and about as soon as possible. The term “bedblocking” and its connotation is something that I cannot accept in any circumstance.
I have taken on ministerial responsibility for food, so I fully understand the challenge. In recent years the health service has sought to improve the quality of food and to deal with the issue of how patients are given food on the hospital ward. The concept of modern matrons was partly developed to deal with those issues to ensure that the nurse in charge of a ward had responsibility and authority. I will do everything that I can to ensure that that message is reinforced by the Chief Nursing Officer in regular communications with nurses.
Several noble Lords, especially the noble Lord, Lord Carlile, and the noble Baroness, Lady Finlay, asked me: if legislation is not the route, what assurance can I give that the matter is taken seriously? We have asked the health and social care inspectorates, including the Healthcare Commission—the bodies responsible for ensuring that proper standards are provided in NHS facilities and in social care establishments and services—to put older people's dignity at the centre of their investigations.
I understand that those regulators plan to take greater account of how older people are treated, including whether they are given the help that they need to eat or drink. However, I accept that in the light of this afternoon's debate, I need to ensure that the messages given today are heard by those regulators loud and clear. I will do just that. Picking up the comment made by the noble Baroness, Lady Finlay, if there is doubt among medical professions about some of those important matters, I am happy to institute discussions with the professions to see whether more guidance is required.
A number of other points were raised. I think that it is the first time that the noble Lord, Lord Patten, and I have debated across the floor of a chamber since about 1977, but it was good to hear his intervention. My understanding is that the orange cards would be considered as a statement of the wishes of a patient under Section 4 of the Mental Capacity Act and should be considered as part of a best interests decision, but they do not represent a legal proposition that must be absolutely accorded with.
The noble Lord asked me about the UN convention. I answered an Oral Question in your Lordships' House as a DWP Minister a few weeks ago on that. Of course, the UK took a prominent role in developing the convention—both itself and as part of the EU negotiating team. When I answered the Question a few weeks ago, my understanding was that the implications of that for current legislation were being considered across Whitehall. I will send the noble Lord a note telling him where we have got to. There should be no doubt that we as a Government have very much supported the work in the UN to produce such a charter.
The Minister is being extremely kind in his response, despite my unkind suggestion that he might ever once have been thought of as old Labour. Can he say whether the Government approve or disapprove—in general terms, not in a legal sense—of people as a statement carrying the card to which I alluded and of which my noble friend Lady Knight provided me with my first example?
Without commenting on the wording of the card, which I have not seen, I state that, as a general principle, the more that we as individuals consider some of those difficult issues, the more we can come to a view ourselves and the more we discuss it with our relatives so that they know our views, the better. Yet when it comes to making what will often inevitably be a difficult decision, it can only be one of a number of factors when considering the best interest principle.
The noble Earl, Lord Howe, asked about the implementation of the Mental Capacity Act. I think I have answered that but, essentially, part of it comes into force on 1 April. From then, the duty on the NHS and local authorities in relation to independent mental capacity advocates, and some directly related elements of the Act to support those arrangements, will be in effect in England, as will the code of practice and the criminal offence of ill-treatment and wilful neglect. From October 2007, all other elements of the legislation will be operational, including the new court of protection, the public guardian and the office of the public guardian, and the lasting powers of attorney.
While I do not agree with the legislative route that the noble Baroness proposes, she has raised some serious issues in relation to practice within the health service. I undertake to ensure that the appropriate actions are taken by those people responsible for inspecting the NHS. I will talk to the medical professions in the light of this debate. The clear message one wants to give is that the health service should be not a place of fear but a place of treatment and support. I believe that it is in the great majority of cases and that NHS staff do a very good job. Often they have to make difficult decisions. There is more to do and today’s debate had identified an area where we need to do more.
When inquiring into these points, the Minister should take the opportunity to look at what is being taught to doctors and nurses about their position in law vis-à-vis their patients. I have heard it said that we cannot wash a patient because it might be an invasion of their privacy, and I suspect that the same might apply with moistening and cleaning patients’ mouths.
There are a number of issues here. I have asked the noble Baroness, Lady Knight, to supply me with specific, concrete examples, and I am happy to meet her to discuss those. More generally, the role of the health and social care commissions is to inspect health and social care against standards. That is clearly a long-term programme of work but we want them to put a particular focus on the dignity of older people, on which much of this debate has centred. It is long-term work but I will ensure that the matters raised in this debate will be communicated as quickly as possible. I said that I am happy and willing to do so, and offer to write to the medical professions in the light of the debate today. I will do everything I can to ensure that some of these very important issues are communicated to the people who have the most authority.
One must understand that this discussion is very much about practice. Inevitably, it can sometimes take time to improve practice. I do believe that practice is improving in general and, as we have discussed, in relation to food. As I said, clearly we need to ensure that it continues to do so, but I want noble Lords to know that the Government take this issue very seriously and that we want to ensure that the health service understands the messages that all noble Lords have sent in this debate.
I appreciate more than I can say the very kind and generous way in which the Minister has replied to this debate. He has shown me an inordinate amount of thought, care and sympathy compared with that shown in some of the other debates, and I appreciate it so very much. I will be delighted to accept his invitation to talk with him about some of the evidence that I have received. I know that we will be able to do so before too long.
My noble friend Lord Howe mentioned medical treatment versus feeding. As I said, I do not know when this came in, but I do know that it is now an accepted rule, and the noble Baroness, Lady Finlay, was quite right to say that there is a big difference between feeding people ordinary food and drink and having to do so in the invasive manner that she described.
I was also asked whether any family had taken a hospital to court. Several families tried, but it was quite impossible to get any solicitor to take up a case against the mighty NHS. This was said when I was making inquiries and receiving evidence for my Patients’ Protection Bill. So many members of the legal profession felt that they were on an absolute hiding to nothing, because to take on the mighty NHS meant pretty well taking on a hopeless case. What was shocking about a recent inquest, which was reported quite fully, was that the hospital involved tried to lean on the coroner to bring about a certain response. It went so far as to tell him in a written submission, which I have seen—indeed, I read from it in the last debate that we had on this matter—to take no notice of the two medical experts who had spoken on this matter because they happened to be Roman Catholic. So far as I am concerned, if you are a medical expert, your views are entitled to be heard, whether you are Catholic, Muslim, Jew, Methodist, or whatever you are. This and many other such materials and pieces of evidence are what have worried me so much.
I very much agreed with many things that the Minister has said. Of course I realise that the amendment was not the ideal vehicle, but my concern has been to stop the slide into acceptance as the norm of helping a few people each week to die by withdrawing food and liquid. This shocks me so much, so although I intend to withdraw the amendment, I must tell the Minister that I will not leave this alone. I shall return to it—I shall keep on and on in one way or another—until patients in hospital receive the protection that they deserve from our health service. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 [Change in definition of “medical treatment”]:
[Amendments Nos. 11 and 12 not moved.]
Clause 7 agreed to.
[Amendment No. 13 not moved.]
14: After Clause 7 , insert the following new Clause—
“CHAPTER 1A Treatment safeguards Electroconvulsive therapy
(1) Section 58 (treatment requiring consent or a second opinion) of the 1983 Act is amended as follows—
(a) at the beginning of subsection (3)(b) insert “except where the treatment is electroconvulsive therapy”; (b) after subsection (3)(b) insert “; or (c) subject to section 58A, in the case of electroconvulsive therapy a registered medical practitioner appointed as aforesaid (not being the responsible clinician) has certified in writing that the patient is not capable of understanding the nature, purpose and likely effects of that treatment but that, having regard to the likelihood of its alleviating or preventing a deterioration of his condition the treatment should be given.”; (c) in subsection (4) after “(3)(b)” insert “or (c) or section 58A or section 63A”. (2) After section 58 insert—
“58A Treatment for patients under 18 requiring consent and a second opinion
(1) Subject to section 62 below, a patient under eighteen years shall not be given electroconvulsive therapy, unless a registered medical practitioner appointed as aforesaid (not being the responsible clinician) has certified in writing that—
(a) the patient is capable of understanding the nature, purpose and likely effects of that treatment, and has consented, and that having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given; or (b) the patient is incapable of understanding the nature, purpose and likely effects of that treatment, and either— (i) a person who has parental authority for the patient understands the nature, purpose and likely effects of that treatment and has consented to the treatment and that having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given; or (ii) the High Court has determined that having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given. (2) For the purposes of treatment given under this section, either the registered medical practitioner responsible for the patient’s treatment or the registered medical practitioner providing the second opinion shall be a clinician with special training in child and adolescent mental health.””
The noble Earl said: In speaking to Amendment No. 14, I shall speak also to Amendments Nos. 15 and 16, which are important amendments about electroconvulsive therapy. Amendment No. 16 relates to Section 62 of the 1983 Act, which covers urgent treatment and states that when it comes to urgent treatment that may be considered necessary for various specified reasons, the special treatment safeguards in Sections 57 and 58 do not apply. As far as ECT is concerned, this means that there is no need for a second medical opinion if the patient has refused consent or where he lacks capacity to consent. I want to suggest very strongly to the Minister that it is time to change that position. I believe that we should look at changing the whole basis on which ECT is administered, even when there is no emergency.
ECT has been around for a long time, but there is no doubt that over the past few years medical opinion and attitudes in relation to it have changed. There is now a consensus view—incidentally, it is reflected in the NICE guidance—that the wishes of the patient in relation to ECT should be of paramount importance and that valid and informed consent should be obtained before it is used. There is quite a spectrum of opinion about ECT. There are those who acknowledge that it has adverse side effects but who believe that these are generally tolerable if the treatment is likely to prove effective. However, there are those who feel equally strongly that the side effects are quite simply unacceptable. The side effects can include brain damage, severe confusion and considerable cognitive impairment. These adverse effects can be long-term. Some patients find that ECT works for them. Others do not find it acceptable or therapeutic and can have very strong feelings against it; often, they can be terrified of it.
The royal college is firmly against compulsion in ECT and has made the point that if a patient retains decision-making capacity, he or she cannot be sufficiently ill to warrant ECT without his or her consent on the grounds of it being a life-saving emergency. I believe that that point should weigh very heavily with us. Because ECT can have irreversible side effects on memory and cognition, it is possible to interpret Section 62 to mean that it should not be available as an urgent treatment except under Section 62(1)(a); that is, where it is,
“immediately necessary to save the patient’s life”.
But there is uncertainty over this. The wording implies that a form of treatment is not in and of itself irreversible or hazardous, but that it might be either or both of those things in any individual case. That legal uncertainty is most unsatisfactory for patients, families and clinicians. Some people have argued that ECT may be given legitimately under all the provisions for urgent treatment in Section 62, not just in subsection (1)(a).
However, there is now a very widely held view in the medical community that a treatment which is potentially hazardous and irreversible should not be given without a second opinion except in the most compelling circumstances; for instance where it is immediately necessary to save someone’s life. Further, if a patient has indicated in a valid advance directive that he or she objects to ECT, that express wish should be honoured. In circumstances where informed consent is not possible, for whatever reason, advance directives should be taken fully into account and the patient’s advocate or carer consulted.
It is in any case not at all clear that ECT can ever be an immediately life-saving treatment in comparison with other treatment options. The British Psychological Society has expressed that view. Certainly it is highly unlikely that ECT would ever be the only treatment available for a patient. In fact, no direct evidence has been found to show either an increase or decrease in mortality in patients who have received it, and the evidence we do have suggests that even severe illnesses respond better to intensive nursing and medical care.
So I believe we should now look at ECT with fresh eyes. Among clinicians it is controversial in terms of the balance between its effectiveness and its often serious adverse consequences. It excites extremes of antipathy among many patients as a process that is uniquely invasive and distressing. These considerations should encourage us to accept not only that the emergency use of ECT should be restricted to the narrowest of circumstances, but also that its use more generally should be limited by law. It is the firm view of the Royal College of Psychiatrists that it should never be administered to any patient without consent if the patient has capacity. That view was accepted in principle by the Government in the 2004 draft Bill. The technology appraisal published by NICE is equally clear about it. In Amendment No. 14 I am proposing that the Act should reflect what the Government and the professions are signed up to: where a patient with capacity refuses ECT, it should not be given; and where a patient is without capacity, it should be given only where the doctor, giving a second opinion, has expressed his opinion in writing that it is likely to have a clear therapeutic benefit.
If we accept that these amendments are necessary and right in the case of adults, as I hope the Minister will, then we undoubtedly need to look carefully at the issue of ECT as it relates to children. In Amendment No. 15, I propose that in the case of any patient under the age of 18, ECT may be given only with their consent and after a second opinion. The consent would have to be that of the patient themselves where they were capable of giving it, or if they were not, then that of a parent or, if need be, the High Court. These proposals represent quite a considerable change from the current position. At the moment, children and young people can have ECT on parental consent alone. If there is no parental consent, or consent is refused, it can be administered against the young person’s wishes if a second opinion authorises it. I do not believe that this situation is any longer acceptable. Certainly it is true that ECT is used only rarely in this country on patients under 18, but that does not make the issue any the less serious. We know that the adolescent brain is still changing and developing in its structure. The guidance issued by NICE in 2003 states that the risks associated with ECT may be enhanced in children and young people and that particular caution should be exercised before it is administered to this group of patients.
The draft Bill of 2004 would have introduced a tribunal or court authorisation of ECT for all patients aged under 16. The amendment tries to provide for a second opinion under the SOAD—second-opinion appointed doctor—system, which goes some way towards matching that safeguard. It also requires that either the young person’s own doctor or the SOAD is a child and adolescent practitioner so as to ensure specialist involvement before ECT is given.
I very much hope that the Government will respond positively to these amendments, and I beg to move.
I rise briefly to support the amendment proposed by the noble Earl, Lord Howe, and echo what he said, particularly the word “invasive”. ECT is extremely invasive, and people’s experience of it varies enormously. For some it works; for others it is “hell on Earth”, as the Mind survey says.
I have known people who have suffered greatly from this treatment. We now know that it potentially has highly adverse effects on memory, inducing memory loss. In a Mind survey a few years ago on people’s experiences of ECT—and I declare an interest as president of Mind—adverse psychological effects featured prominently. Those who had been abused in the past felt violated again; others felt fear and anxiety. As the noble Earl, Lord Howe, and Mind point out, people with the capacity to make their own decisions should be able to do so. The autonomy of the patient should be pursued. That is especially so with such an invasive treatment and such uncertain outcomes. Once again, this is trying to give those who are mentally ill the same rights as those who are physically ill.
There is no justification for administering ECT, especially against a person’s will, in a service that may not meet minimum safety standards. As has been said, the Royal College of Psychiatrists’ ECT accreditation service already includes about 50 per cent of ECT clinics on a voluntary basis. Accreditation should be required before ECT can be given. I therefore support these amendments.
I also support the amendment. My mother would have been enormously grateful to the noble Earl, Lord Howe, had she lived. From the late 1940s through to 1960 she was regularly given ECT. Initially she used to be strapped down on to a bed with no sedatives or tranquillisers. She bore the scars of the terminals on her forehead for the rest of her life. She also bore the wounds from a leucotomy. The barbarism of psychiatrists in those days is hard to believe.
The actual treatments themselves did her no good whatever and, indeed, impaired her memory. Fortunately she was a very doughty lady—I loved her dearly, though we used to have awful fights sometimes—and in the end her last four years were peaceful and calm. She said that those years were the happiest of her life. In those years she had absolutely no medical treatment as far as psychiatrists were concerned.
Other noble Lords have said a great deal to support the amendments in this group. I shall speak very briefly to support the noble Earl, Lord Howe, especially on Amendment No. 15, but we on these Benches support all these amendments. The most worrying aspect for me is that it has been relatively easy, with relatively few safeguards, to give ECT to young people under 18. I hope the noble Baroness, Lady Murphy, will say something about that from the viewpoint of those in practice. I therefore feel particularly strongly about Amendment No. 15.
Last week some of us received a briefing from the organisation Young Minds. Mike Shooter, the immediate past president of the Royal College of Psychiatrists, is now its chairman. It was very interesting to hear what they had to say about young people, particularly those in the age group composed of 16 and 17 year-olds—those who are considered somewhere on the boundary between adulthood and childhood. Nobody truly knows how young people’s brains develop or what effect ECT has on a developing brain. Kathryn Pugh told us about the views of young people who have experienced ECT and of some of the psychiatrists who have been involved in it. It was distressing indeed. Mike Shooter gave her permission to tell us the following story:
“The one time I treated a young woman under 18 with ECT was one of the hardest decisions of my professional career. This young woman was manic, she couldn’t engage with us in any way and I really feared if we couldn’t reach her and help her, that she would die. We discussed ECT endlessly and sought more than one independent opinion. We went ahead with ECT, and it was the best decision we could have made. ECT didn’t make her well, but it enabled her to accept and engage with other treatment”.
I think that the whole Committee will be fully behind the amendment, which insists on a second opinion, and that that opinion is taken seriously indeed.
ECT is not getting a very good press here tonight. So, while strongly supporting these amendments, I would like to bring us back to some practical science and what we know about ECT.
It is true that ECT has been grossly misused in the past. I remember going to see the film “One Flew Over The Cuckoo’s Nest”, turning to my husband afterwards and saying, “Goodness me, we never use ECT like that”. The following week, the 10-year review inquiring into St. Augustine’s came out. It described ECT being used in exactly that way. It was deeply shocking for me as a trainee at that time.
It is also true that ECT has been used much less often in the past 20 years. It is good to see how little it is used now in most services, but the evidence is that for people with profound depressive, biological types of illness—particularly those in later life, over the age of 60—those illnesses are life-threatening. People die of depression. The mortality rate among those in a depressive stupor is quite high. If you have seen someone near death because they stopped eating and drinking get a little toehold on life again, to enable you to give them the intravenous medications which might enable them to respond over a longer period to medicine, it is very difficult to say, “I will never give that treatment again”.
Unfortunately, it is also true that many of those who do respond relapse within three or four months, but although that sometimes happens, ECT is sometimes the only option that one can think of. Nevertheless, as other noble Lords said, we recognise the deep fear, anxiety and revulsion that this treatment creates in many patients’ minds. It seems essential that people should be able to refuse it when they have full capacity.
As for emergency ECT under Section 62, only very rarely does it seem necessary to give such treatment. I am rather sceptical about it. Someone would have to be profoundly dehydrated to warrant it, and ECT would be a long shot. One would not be able to wait until Monday or a second-opinion doctor was available. I cannot envisage a scenario where a fully capacitated patient who was able to consent would fall into the need for urgent treatment. So this amendment does ensure that a person with capacity who does not consent should not be subject to ECT in emergencies.
I know that Mind has been pressing for a total ban on ECT in children. I say to the noble Lord, Lord Bragg, that initially I was very sympathetic to the idea of tabling an amendment to that effect. Several US states have banned it but not for reasons of science. The literature is poor. There are about a dozen cases every year, few international series and no randomised control trials. Again, though, with regard to the sort of young person who is given this treatment, the recent literature shows that in almost all cases the people concerned in administering ECT have gone out of their way to seek second and third opinions and a consensus decision from the clinical team. So in practice such treatment is happening very rarely. However, it may be life-saving for a child who is seriously ill and in a depressive catatonic stupor, which is a very rare occurrence. NICE considered the options carefully and, on balance, decided that it was not wise to ban the treatment if perhaps one child’s life could be saved by it. The extra safeguards therefore seem to be the way forward. ECT is always a last resort. I personally would not want to ban it if it saved one child from that appalling condition, depressive stupor.
I give my full support to these amendments. We have come a long way, but let us not forget that just occasionally patients ask for ECT because it helped them the last time they had a depressive illness. When it is feared and not sought and the patient has no capacity, however, the treatment should not go ahead.
I support the amendments and the noble Earl, Lord Howe, in his presentation of them. This is perhaps the most crucial of the examples of valuable safeguards that we have lost through the withdrawal of the 2004 Bill, and it would be good to have them reintroduced here. I speak in particular from contact with chaplains within the mental health service and their own discussions about the use of ECT, its dangers and its desperately invasive nature, as well as the rare occasions on which it is, in their view, the appropriate way forward in treatment. I am aware of circumstances where ECT has indeed been very damaging to people, but also of those where it has been helpful.
The chaplains to whom I have spoken have affirmed the need for consent as a crucial part of the use of ECT. When that consent is there, the patient goes along with the treatment, wants to be a part of it and provides their acceptance. Where that is lacking, the danger of ECT is even more considerable. I hope the Minister will be able to accept these amendments and this way forward in providing additional safeguards for those who are at a very difficult and damaging point of their lives because of their mental health.
I join the noble Earl, Lord Howe, and others in hoping that the Minister will be able to respond favourably to these amendments about electro-convulsive therapy. I think we all know that many patients see it as—and indeed it is—quite different from other types of treatment. It is not at all uncommon to find a mental health patient who considers that his future treatment has been prejudiced by the fact that he had ECT at an earlier stage. I have met patients who feel that way. They may be totally wrong, but they believe it, and it has a serious impact, not just at the time but perhaps for many years afterwards. I hope we can reach a situation where there is no ECT without consent, and where the treatment of patients under 18 is given special attention.
Like many others, I would like there to be no ECT for patients under 18, but I understand the points made by, for example, the noble Baroness, Lady Murphy, and therefore go along with the amendment that introduces a second opinion from a clinician with special training in child and adolescent mental health. That is a step forward; I would have hoped we would have been able to take a bigger step, but at least we ought to try and take that one. I hope the Minister will be able to respond favourably.
I support these amendments. I agree that if there had been an amendment that banned ECT for under-18s I would have supported it, but, having listened to the noble Baroness, Lady Murphy, I am happy to support Amendment No. 15 as it is. ECT is not a very pleasant form of treatment; it should be used only with safeguards, and these amendments address that.
I also support Amendment No. 15, tabled in the name of the noble Earl, Lord Howe, and will limit my remarks to the giving of ECT to people under 18. I too was asked to table an amendment that would have banned the giving of ECT to young people in any circumstances, but, having studied the research evidence on the subject, and from my own personal experience of patients who have undergone ECT, I was not persuaded that that was the right course of action. The Howe amendment, on the other hand, allows ECT to be given to young people in extremis, and for me the evidence to date supports that.
The British Psychological Society document Depression in Children and Young People provides a valuable review of the giving of ECT to young people. There are significant concerns about the adverse effects of ECT; as other noble Lords have said, it may cause short- or long-term memory impairment for both past and current events, and those risks may be enhanced in children and young people, that being the crucial point for me in this short debate. NICE also concludes that there is insufficient information to allow appropriate risk-benefit assessment for children and young people. For both reasons, NICE recommends that clinicians should exercise particular caution when considering ECT treatment in that group. The amendment ensures that clinicians will comply with the NICE guidance, which is a sensible measure for this Committee to ensure.
The recommendations of the American Academy of Child and Adolescent Psychiatry in 2002 are also a helpful guide to practice. If ECT is to be given, a number of conditions should apply. The following three are absolutely central, and the noble Earl’s amendment is designed to ensure that these conditions are met at all times. First:
“The symptoms must be severe, persistent and significantly disabling, including life-threatening symptoms such as refusal to eat or drink, severe suicidality, or florid psychosis”.
“Other treatments should have been tried and failed, including at least two or more trials of appropriate psychopharmacology, unless the severity of symptoms precludes waiting for a response to other treatments”.
“A psychiatrist experienced in the use of ECT, but not involved in the case, should give a second opinion”.
In May 2003 NICE published its guidance on ECT for depressive illness, schizophrenia, catatonia and mania. NICE follows a similar line to the American Academy, and recommends that ECT,
“is used only to achieve rapid and short-term improvement of severe symptoms after an adequate trial of other treatment options has proven ineffective and/or when the condition is considered to be potentially life-threatening”.
The draft Mental Health Bill published on 8 September 2004, which others have referred to, provided for very stringent safeguards. For some reason, those have now been lost. This amendment would at least go some way towards restoring them; it is less stringent, but I think it would achieve the desired objective.
If there are insufficient data on the long-term effects of ECT, and if it is known to carry risks, why not ban it? We can turn to the views of young people who have been given ECT and their parents to provide part of the answer to that question. Three studies, undertaken in 1999 and 2000, of a total of 64 young people who had received ECT and their parents found that a small majority of the young people believed the treatment had been helpful. Most had experienced memory loss—one of the major concerns about ECT, as we know—but “this had largely resolved over time”. A further study, undertaken in 1999, of 87 patients with depression who had been treated with ECT aged 18 years or younger showed that 67 per cent had remitted or showed marked improvement of symptoms after treatment. I just do not think we can ignore the experience of people who have been through the treatment.
We are concerned here with a very small number of the most severely mentally ill, as others have said. Richard Duffett, consultant psychiatrist at Goodmayes Hospital, provides us with, as far as I know, the only statistics available. As the noble Baroness, Lady Murphy, has quoted, he gives a figure of some 12 cases a year. The amendment will guarantee the safeguards necessary to ensure that ECT continues to be given to only a small number of young people with exceptionally severe mental health problems. I hope the Minister will give sympathetic support to this important amendment.
To my knowledge, the effects tend to happen very soon after ECT is given. I think there were studies about the consequences of ECT over a six-month period. The research that I am thinking of showed that, over that longer period, the results of ECT and drugs were similar. Therefore, my conclusion is that wherever possible one gives drugs and not ECT. I have tried to make the point that where a child’s life is in danger—and only when a child’s life is in danger—one should use ECT to save a life. In assessing whether a child’s life is really in danger, one needs a second-opinion doctor and the opinion either of the child, if he or she has some capacity, which, frankly, is unlikely in the circumstances, or the consent of a parent. It is a matter of putting in all the safeguards one can to save a very small number of lives.
As I have previously declared, I am chairman of the Mental Health Act Commission and as such I have an interest in all the debates concerning this Bill.
I wholeheartedly support the part of the amendment that seeks to ensure more effective safeguards in the use of electro-convulsive therapy for under-18s, and I support the noble Lords who tabled it. However, I have a number of questions, on which the Committee might wish to reflect, about an across-the-board introduction of a mental capacity test, as suggested by the first part of Amendment No.14.
I begin by drawing the Committee’s attention to the Mental Health Act Commission's concerns over the Government's previous proposal, in their draft Mental Health Bill of 2004, that ECT should not, except in an emergency, be given to patients deemed capable of refusing consent. The commission's data on second-opinion authorisations of ECT showed that in 2002-03, ECT was authorised by a second-opinion, appointed doctor in the face of a patient's capable refusal of consent on 834 occasions. That amounts to 40 per cent of all the second-opinion doctors' authorisations of ECT in that year.
The Mental Health Act Commission asked the Joint Committee that was considering that Bill in its biennial report to Parliament what would be likely to happen to this proportion of patients who receive treatment under the present legal framework if the proposed change to that framework were made. The possibilities seem to be that such patients would simply no longer receive ECT, they would receive it under emergency powers, or the assessment of their capacity would change and they would be found to be incapacitated. The MHAC suggested that the first possibility—that this cohort of patients would simply no longer receive ECT treatment—was the least likely, given that the second-opinion system had already determined that such treatment should be given according to the tests of medical necessity established in case law. It seemed more likely that the second and third possibilities would occur: that we would see a rise in the use of emergency powers or a rise in the proportion of patients deemed to be incapacitated as regards making decisions about ECT.
It would be worth exploring how we can address some of those questions more fully and provide the necessary safeguards in respect of an across-the-board introduction of a mental capacity test, as suggested by Amendment No. 14. The indeterminate nature of the concept of mental incapacity could make it an uncertain legal threshold in this important context. Nevertheless, while raising these broad issues, I support without reservation those parts of the amendments that would result in more effective safeguards in the use of ECT for under-18s.
Thankfully, I do not believe that ECT is used widely for children and young people. The last government survey of 2001-02 counted only four patients between 16 and 18 to whom ECT was administered. However, although the numbers affected appear to be low, we must not be complacent about the need for effective safeguards when such severe treatment is considered for young people. Over the past three years, the Mental Health Act Commission has been aware of nine patients under the age of 18 for whom ECT has been considered, although our data is unlikely to be complete, as the Mental Health Act Commission becomes aware of such patients only if, first, they are detained under the Act's powers, and, secondly, if they cannot, or will not, consent to ECT so that a second-opinion doctor's certification is required. Of course, this amendment would mean that a second-opinion doctor would have to visit all patients under 18, whether or not they were deemed to consent. I welcome that aspect.
I am sure that the Committee will share my concern at the lack of complete data, and I shall be returning to this issue when I speak to my later amendment on notifications to the Mental Health Act Commission. But I am certain, as noble Lords would expect, that the nine young people whom we know about, for whom ECT was reviewed, were suffering from the most distressing conditions and were generally in a very desperate state.
In preparation for today's debate, I was able to read the doctors' reports on visits to five of these young people over the past two years. The youngest was aged 15, one was 17 and the other three were 16 year-olds. Four of the five were teenage girls. Their diagnoses all involved severe depressive psychoses, with at least a tentative diagnosis of anorexia nervosa in three of the girls, although all four were being fed by nasogastric tube as a consequence of their refusal of food and fluids. None was deemed to have the mental capacity to give or withhold valid consent to their treatment. Each of them had at least one visit from a second-opinion doctor to consider ECT treatment and some had three or four visits in that time.
For two of those five patients, the second-opinion doctors declined to authorise ECT on the grounds that the situation was not yet desperate enough to warrant it, or that other alternative treatments had not yet been exhausted. For example, the fact that one patient was accepting food and drink was cited as a reason why, in this case, ECT should not be administered. In another case, the second-opinion doctor specifically recommended that, if ECT were to be considered again, the advice of a psychiatrist with appropriate expertise should be sought, and that this should take place prior to any request for a further statutory second opinion through the Mental Health Act Commission’s offices.
In three cases where ECT was authorised, a single course, which is 12 treatments, was given. In the fourth, which concerned the youngest—and from the records that I have seen, the most desperately ill of all the patients—a total of 20 ECT applications was authorised. This 15 year-old girl was tormented by terrible delusions of becoming contaminated through food, or even through contact with others who had eaten. She frequently needed to be under close supervision to prevent her from severely harming herself and she was extremely withdrawn. I do not doubt the severity of this case and the ECT was reported to have had an initial positive result, but that was short-lived. In fact, the progress she has made since is largely attributed to a combination of psychiatric drugs and family therapy, which has continued throughout her hospitalisation.
It seems to me that wherever there is doubt about the long-term benefits of a treatment there must be greater caution in its use. That is never stronger than with respect to children and young people. I hope that the Committee will agree that decisions to use ECT in such cases should be taken only with the greatest care and deliberation. If we can strengthen the safeguards to ensure that, I think we should do so. I sincerely hope that the Minister will agree with this, whether or not he is prepared to accept the exact wording of that part of the amendment dealing with ECT for children and adolescents.
I have spoken mostly to that aspect of the amendments because I believe that the safeguarding of children and young people must be considered separately from that of adults. I most strongly urge the Government to accept that. If they cannot accept those aspects of the amendments as they stand, I urge them to come back with a proposal that will have a similar effect.
It is entirely understandable that there should have been a debate about ECT which reflects both historic concerns about its previous extensive use—and, in many cases, poor clinical practice—as well as more modern approaches where ECT may be used. Clearly there are differing views about the use of ECT, some very hard-felt, and it is absolutely right that we should reflect on them.
Equally there is evidence that ECT can be effective in certain circumstances in the treatment of some psychiatric conditions, such as depression, schizophrenia, catatonia and mania. It is a treatment that I understand to be especially useful in dealing with severe depression, in particular where other treatments such as medication may not be ideal. We have to establish the appropriate balance between ensuring that treatments that may be effective are available for the benefit of patients and ensuring that sufficient safeguards are in place.
These amendments would place new restrictions on the use of ECT. They would stop clinicians administering ECT to patients detained under the Act who have the capacity to consent to it but who do not consent, even in emergency cases. In other words, the potential effect of the amendments is to take away from clinicians a way of saving a person’s life in certain circumstances, preventing their condition from seriously deteriorating, alleviating serious suffering or stopping them behaving in a violent or dangerous manner unless or until the patient loses capacity to consent to ECT.
I noted what the noble Earl, Lord Howe, said about the interpretation of Section 62 and I will reflect on that. Perhaps he would find it helpful if I wrote to him to clarify the points that he raised.
Amendment No. 16 would allow for detained patients who lack capacity to consent to ECT to be given ECT, without a second opinion, only where it is immediately necessary to save lives. I am advised that there may be a problem with that in the case of a patient who is taking no sustenance because of their severely depressed state and is at risk of starving as a result. In those circumstances the doctor cannot act to prevent any deterioration in the patient’s condition but must wait until the patient is at death’s door. On that basis I am advised that there may be circumstances where ECT would be the only appropriate treatment for some patients.
Amendment No. 14 further provides that no child or young person under 18 may be given ECT if they are capable of consenting to it and do not. If they lack capacity to consent to it then, unless it is immediately necessary to save their life, they may be given ECT only with the approval of a person with parental responsibility or if the High Court decides it should be given. Even where the patient or the parent consents, the treatment must still be approved by a second-opinion appointed doctor (SOAD). Either the SOAD or the doctor in charge of the ECT would have to be a child and adolescent practitioner.
Before I go on to discuss the issue of parents providing consent to treatment with ECT, I want to note that, by amending Section 56, Amendment No. 15 will make those provisions apply to all patients under 18, regardless of whether they are detained under the Act. Clause 27(2) would otherwise replace the current wording of Section 56 and so leave the current amendment addressing the wrong text. Members of the Committee have signalled their intention to oppose Clause 27. I mention that in case any noble Lords might have been struggling with two different versions of Section 56.
It is clearly of great importance that, where ECT is used for children and young people, there are sufficient safeguards. I have listened to noble Lords’ comments on that. As they have said, ECT is given very rarely to children. When it is used, it is almost always given to older children—those aged 14 or older. Of course the Government understand the concerns expressed about the use of ECT for children, but as the noble Baroness, Lady Murphy, said, there may be a few cases where it can be of real benefit, often life-saving. That was the view of the Royal College of Psychiatrists in evidence to the Joint Committee examining the 2004 draft Bill.
It is already the case that a child patient who is subject to the Mental Health Act can be treated with ECT in non-urgent circumstances, without a second opinion, only if he is capable of consent and does consent. There is no provision, if the child either cannot or does not consent, for a person with parental responsibility to consent on his behalf. Instead Section 58(3)(b) requires a SOAD to certify that ECT should be given.
For children who are not detained but are in hospital as informal patients, the Government have thought it right to enable under-18s who are capable of consenting to ECT to do so without the need for a statutory second opinion. That is on the basis of those young adults having the ability to make their own judgment and therefore consent to such treatment. Having a statutory second opinion would mean being interviewed and examined by a second doctor whom they probably do not know.
Having listened to the arguments put forward by noble Lords, I am very willing to go back and look at the safeguards for children. I cannot give a commitment that I will come forward with a sympathetic response but I would like to take some time to make sure that we have got this right. I have listened to noble Lords in relation to the safeguards. I do not know the extent to which they would also accept that there is an issue about young people who are competent to make their own decisions. I wish to examine that balance, but I will come back with a response on Report.
Let me turn to the other question regarding consent. We come back to ECT and its value and uses. Many oppose ECT. We are aware that some psychiatrists believe that ECT risks having a long-term or permanent effect on the faculties of patients, but our view is that there is no consensus on that point. We acknowledge that the Royal College of Psychiatrists supports prohibiting the giving of ECT to a patient who can consent but refuses to do so. A number of noble Lords have referred to the NICE guidance in this area, which recommends:
“Someone who is mentally capable of making a decision about their treatment should decide, after discussion with the doctor, whether or not they want to give their consent to have ECT”.
While some psychiatrists do not treat such patients with ECT, many do. In 2003 and 2004 the Mental Health Act Commission reported 1,385 requests for second opinion appointed doctors to issue certificates approving ECT where the patient refused consent. The noble Lord has already referred to that. We accept that there are aspects of ECT treatment which set it apart from other forms of treatment. That is why the Act already provides the safeguard of a second opinion for detained patients who either cannot or do not consent to it.
We are concerned that the tenor of the amendments is to treat ECT as if it were barely a legitimate therapeutic treatment at all. That might unduly limit the options not only for clinicians, but also for patients. Some patients welcome ECT, whether because they think of it as a genuine last resort or because they prefer it to medication. These amendments would deny those patients what they would have chosen for themselves just because they happen to lack capacity at the time in question. Given that we are talking about situations of immediate necessity, it is to be expected that very many patients will lack capacity.
We see a problem of clinicians not being able to respond with ECT to crises, even if patients have made it plain, in some form of advance statement, that ECT is perhaps what they would want should their condition begin to deteriorate markedly. Even in the case of patients who retain capacity to consent, we think that these amendments may well go too far. We are talking about patients who are detained against their will in a framework of legislation which, as the Committee will know, we believe should be based on needs and risks, not on the patient’s decision-making ability. We worry that these amendments might sometimes force clinicians to work with one hand tied behind their back at the very moments of crises when they most need to be free to respond with the treatment that their clinical judgment tells them is best.
These amendments would mean that detained patients could not be given ECT even where it was an immediate necessity, if they have the capacity to consent but do not. They would limit immediately necessary ECT without a second opinion for other detained patients only in life-saving situations. That would impose a significant new restriction on what may be done under the Act to respond to emergencies. That is what makes us cautious. However, I am conscious that in the 2004 draft Bill we were going to give detained patients the right to refuse ECT where they had the capacity to do so and provided it was not an emergency. In the light of that—
Before the noble Lord finishes, I should like to press him on Section 62 emergency treatment and remind him why it is given. Emergency ECT is given not to affect the underlying cause of the depressive illness or suicidal ideation; indeed, suicidal thoughts often get worse after emergency ECT because you are speeded up by the process. The only circumstance where one is justified in giving emergency ECT—in other words, to give it without a second opinion in a life-threatening illness—is where someone has stopped eating and drinking. Under those circumstances they have nearly always stopped speaking as well. I cannot remember a single occasion under those circumstances where the person would have capacity. It is because of that that I cannot see why we would want to allow Section 62 treatments, which, I regret to say, have occasionally been used to get round having the Section 58 second-opinion doctor turn up. I regret to say that there is some bad practice, which we do not like to talk about very much, but which exists. Section 62 has occasionally been used in a cavalier manner. The Mental Health Alliance and the Royal College of Psychiatrists are very keen to stamp that out because of the bad reputation of ECT. I am a supporter of ECT, but I would no more think of giving it under Section 62 to a person who had full capacity than fly to the moon. I ask the Minister to look again at how we can add this safeguard, which would have no impact at all on those patients for whom the noble Lord, Lord Patel, expresses anxiety.
I am not in an enviable position as a Minister trying to refer to specific treatment cases when such experts are present, and I attempted to resist doing so. Obviously, I am reliant on advice that I am given on certain examples which may concern the Government vis-à-vis amendments tabled, but I do not seek to hide behind that advice. In relation to Section 62, there is no way that I could condone bad practice. I shall do everything that I can to ensure that it does not happen.
When the noble Baroness intervened, I was going to say in conclusion that I am conscious that in the 2004 draft Bill we were going to give detained patients the right to refuse ECT where they had the capacity to do so and provided it was not an emergency. I am very willing to look at this further and to listen to further argument. We are certainly willing to consider further the question of allowing patients subject to compulsion to refuse consent to the use of ECT in non-emergency situations.
As I said, I wish to look again at whether the safeguards for children are sufficient. I will come back to that at a later stage.
I am grateful to all noble Lords who spoke in this debate. I am particularly grateful for the support that they gave to this group of amendments, conscious as I am of the extent of the professional expertise that exists on the Cross Benches and the very considerable lay knowledge among other speakers. The near-unanimous support for Amendment No. 15 and the part of Amendment No. 14 dealing with children was welcome. Until the Minister’s final sentences, I had thought that his reply was rather less than warm, and I was becoming despairing and not a little disappointed. However, it is good of him to say that he will take the issues away and look at them. I could have wished for more than that, but I am grateful for those small mercies.
I simply ask the Minister if he would be courteous enough to read the speeches of the professional contributors to the debate, as they carry enormous authority, and to bear in mind the fact that ECT is, I think, accepted as a unique form of treatment because of its invasiveness and its recognised adverse effects. The basis of all my amendments could be summarised as simply being the precautionary principle because there is a marked split in professional opinion on the utility and effectiveness of the treatment.
I remain somewhat puzzled that the Government changed their mind about the right of patients with capacity to refuse ECT. I know that the Minister said that he would look at the issue again, but I had hoped that he would say that, having considered the issue in the context of the 2004 draft Bill, there was really no difficulty about it and that he would readily draft an amendment. So I am puzzled about why the Government are so hesitant. The understanding among practitioners is that a capacity test is perfectly able to deal with the specific circumstances of different treatments, including ECT.
We have debated the issue for nearly an hour, and it is time to move on. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 15 and 16 not moved.]
17: After Clause 7, insert the following new Clause—
“ECT compliance with standards
After section 63 of the 1983 Act insert—
“63A ECT compliance with standards
Electroconvulsive therapy (ECT) shall not be administered except in a service that has been accredited for that purpose by the Royal College of Psychiatrists.””
The noble Earl said: We come now to an amendment which, I hope, the Government will be sympathetic to. It would ensure that ECT is only delivered in a service that meets acceptable standards.
I shall remind noble Lords who may not know that ECT involves giving a patient a general anaesthetic and passing electricity through their head. The purpose is to cause a seizure, which is intended to have anti-depressant effects. In order to have that effect, the dose of electricity must be enough to cause a seizure, but it should exceed that threshold by as little as possible if adverse cognitive effects are to be minimised. A systematic review carried out for the Department of Health stated that the more effective forms of ECT tended to cause more memory impairment.
The potential for harm relates not just to cognitive damage, but to psychological damage as well. ECT, for many people, is frightening and distressing. The fears that people have are unfortunately borne out by the evidence. The noble Lord, Lord Bragg, mentioned the work of Mind, with which I know he is closely involved. A Mind survey, six years ago, of patients’ ECT experiences, found a high level of unwanted side effects. Of those who had had ECT in the two years prior to the survey, 40 per cent reported permanent loss of past memories; 36 per cent reported difficulties in concentrating; 27 per cent reported an inability to remember new information; and 49 per cent said that they would not agree to have it again.
Respondents from black and ethnic minority communities were more likely to have received ECT without consent, and they had a more negative view of it than the overall sample, with 50 per cent finding it unhelpful, damaging, or severely damaging in the short term, and 72 per cent in the long term. It is therefore clear that, if ECT is to be given, it has to be given in line with best practice—not least in the way that information is provided to patients. I did not mention that, in the Mind survey, 34 per cent of respondents said that they were not aware that they could refuse to give consent to the treatment. The information that needs to be promulgated should also be about people’s rights.
Despite the hazards associated with ECT, the Mental Health Act does not prevent it being administered in clinics where conditions are unsafe and staff are inadequately trained or supervised. The ECT Accreditation Service (ECTAS) was set up by the Royal College of Psychiatrists in 2003 to improve quality standards. I understand it to be a thorough and soundly based scheme, but it is only voluntary. At October 2005, 78 clinics had joined it, and that is about 40 per cent of ECT clinics in England, Wales and Ireland.
I am sure that we should support voluntary engagement in the ECTAS process, but is that enough? I do not think that it is. I really do not think that it is acceptable that people are being given ECT in clinics that have been or would be denied professional accreditation. I say that because the standards involved in accreditation are all to do with safety. The themes that have emerged in the first two years of the scheme’s operation among clinics that did not pass first time include lack of proper risk assessments; lack of trained supervision; absence of essential equipment to monitor the patient’s breathing during anaesthesia; no monitoring of adverse events; and an absence of operating protocols. In other words, a failure to meet standards necessarily indicates that absolutely essential requirements of safety, effectiveness and acceptability have not been met.
I do not know—none of us can know—what proportion of clinics that have not yet joined the scheme would fail to get accreditation. According to the royal college, however, the experience to date suggests that, for a clinic that is initially found to be substandard, it is not a difficult or expensive matter to bring its services up to scratch. I very much hope, therefore, that the Government will look most carefully and constructively at the proposal in the amendment. I beg to move.
I support the noble Earl, Lord Howe, in this amendment. I will not speak long, as we are running behind and the Whips are getting a little anxious.
There are two brief points that I wish to add to what the noble Earl has said. First, we have had a long discussion already about how ECT is viewed generally by the patient community. It seems to me key that, if we want to give those patients the sense that they are safe—some of them actually ask occasionally for ECT, as the noble Baroness, Lady Murphy, said—this accreditation is absolutely vital. There is not only a patient safety issue, but the issue of the treatment being seen to be safe and patients having trust in places where ECT is carried out.
The second point is the worrying statistic from the survey of those who are already members of the voluntary scheme that was shown at one of our briefings from the Mental Health Alliance. Because ECT is not a high priority in mental health services, only 28 per cent of those services have a training budget. Where ECT is being carried out and they have already joined a voluntary accreditation scheme, even they are not having regular training. It seems to me, therefore, that we all ought to support a compulsory accreditation scheme under the aegis of the Royal College of Psychiatrists, where training is a key part of how the treatment is carried out. I hope that the Minister will give us some comfort on that.
The noble Earl, Lord Howe, and the noble Baroness, Lady Neuberger, have said it all. I know that there will be anxiety on the part of the Government about imposing the standards that create best practice, but I know how much mental health trust managers and clinicians would welcome the support for investment in these services. As we have already said, it actually does not take much money; it just means a concentration of effort.
The Royal College of Psychiatrists has done an enormous amount in the past 25 years to improve knowledge and training for delivering this small, but important, service, where safety must be absolutely paramount. It would do so much to give confidence if we could get everybody signed up. It would be another way to reassure patients that the treatment was taken seriously and that their concerns were being addressed. I urge the Minister to accept the amendment.
Clauses 178 to 184 of the draft Bill of 2004 contained safeguards in relation to ECT. The committee considered those with care and came to the conclusion that something like the safeguards that were included in the Bill was required. The committee, at paragraph 368 of the report, which I will not read out, made a further recommendation in relation to ECT under the emergency procedure. I have not heard any reasoning why the Government have abandoned the cautious approach set out in the clauses in the previous Bill that I referred to. They seem to me to be entirely appropriate. We reached our conclusions in the committee on an evidence base. When replying, would the Minister explain to the Committee—if it is the Government’s view—why it is no longer appropriate to build in the protections in those clauses?
An area that has not yet been mentioned is the danger of anoxia from poor anaesthetic maintenance technique. Training in anaesthetics taught me that these patients can have just as compromised an airway and can go deeply anoxic quite easily, so it is terribly important that they are looked after and have their ECT on premises that meet minimum standards. It is worrying that half of the premises have not yet put in to register, because that suggests that they do not expect to meet the accreditation levels yet. I hope that the Minister, in his reply, will address the position of patients who are treated in private premises rather than NHS premises and how those premises are currently inspected for standards. The amendment would mean that prisoners would have to be moved to a place of safety, yet I cannot think of prison hospital facilities that are adequately equipped to give ECT in the very rare situation that a prisoner might require such treatment.
It is entirely understandable that noble Lords have raised the question of how services are, essentially, to be regulated, because a statutory scheme would amount to regulation—that is what this is about—where ECT is given to patients who are under compulsion. Clearly, given the concerns about the administration of ECT, it is important that there is a safeguard and that the public and patients can be given assurances that ECT will only be administered in the most appropriate way. I fully understand the comments that have been made. However, we have in the current arrangements an appropriate way of ensuring that services are provided effectively. I agree, however, that, if there is a problem in that some facilities are not applying for the voluntary accreditation scheme, there is an issue about how those organisations can be encouraged to do so.
Mental health providers, including those providing ECT treatment, are regulated by the Healthcare Commission, which is responsible for regulating the facilities in line with the standards for health service providers set by the Department of Health. That regulation, which has been part of the reforms that the Government have brought to the House over the past seven, eight or nine years, is about ensuring patient confidence as well as ensuring the quality of services. I pay tribute to the Royal College of Psychiatrists, which, in 2003, established the voluntary accreditation scheme to which the noble Earl, Lord Howe, referred, the ECT Accreditation Service. It is open to all clinics and hospitals in the UK and Ireland where ECT is administered. Participating clinics undergo a process of self-review and an external peer review over a period of six to nine months. The results are considered by the ECTAS accreditation advisory committee, which recommends a rating to the college’s court of electors. The scheme provides an assessment of the clinic against standards and, through feedback and advice, seeks to help clinics continuously improve while disseminating best practice throughout the sector.
The Healthcare Commission values the information that comes out of the process, and it often forms part of its screening process for providers that have taken part in the scheme. Much information comes out of the college’s other accreditation scheme for acute in-patient mental health services or the reviews undertaken through the quality network for in-patient child and adolescent mental health services that also helps the commission in the process of assessing mental health service providers.
Noble Lords will also know that the Government recently published a consultation, The future regulation of health and adult social care in England. It seeks to ensure that we have a proportionate system of regulation. In that context, I believe that we have the best of both worlds. We have statutory regulation through the Healthcare Commission and the voluntary accreditation scheme run by the Royal College of Psychiatrists. I would not want to change that balance, because it is the best type of balance. Providers are encouraged as much as possible to do the right thing by bodies that are concerned with the area under consideration, with the Healthcare Commission being responsible in law for the overall regulation of healthcare providers.
We have a situation in which not all providers of services are voluntarily accredited through the royal college scheme. By its very nature, it is a voluntary scheme; therefore it would not be appropriate for the Government to dictate to individual providers that they should voluntarily subscribe to the scheme. However, I accept that it would be in everyone’s interest if all providers took advantage of the accreditation scheme, and I am willing to institute discussions between my officials and the royal college to see what could be done to encourage providers that do not take part in the accreditation scheme to do so.
Before the Minister sits down, will he please answer my question? Why have the Government withdrawn from what they described in evidence to the Joint Committee as,
“a tightening of the existing arrangements for the administration of ECT, including the recognition of the need for consent”?
We have had no explanation of why the Government have abandoned the position that they took in the 2004 draft Bill and taken up the position that they are in today, which is very much non-statutory.
I thought that in the previous group of amendments on ECT we debated the issue of consent. I said to the Committee that I was taking back the issue and would come back on Report with some ideas. This amendment is about the accreditation of services.
I thank noble Lords who have spoken in the debate. I am grateful to the Minister for his reply, which is reasonably positive as far as it goes. He mentioned the work of the Healthcare Commission and its responsibility for regulating clinics. I wonder what work the commission has done in this area. Has it expressed any opinion about quality standards in ECT clinics? Under what standards do clinics operate, if they do not sign up to the accreditation scheme? Those matters ought to be looked at.
Would the noble Earl, Lord Howe, find it helpful if, as well as asking my officials to discuss with the royal college opportunities to encourage more providers to accredit voluntarily, I made sure that the Healthcare Commission was made aware of this debate, so that it could see the importance of the issue?
That is a helpful undertaking, and I am extremely grateful. I shall withdraw the amendment, of course, but I just wanted to reply to the noble Baroness, Lady Masham. As I said earlier, the most recent figure that I have is that 78 clinics had joined the voluntary accreditation scheme, but that figure is more than a year old. However, I can tell her the approximate rate at which clinics appear to fail the test. Of the first 37 clinics to be accredited, nine initially had their accreditation deferred but were then awarded it once the necessary improvements had been made. From that statistic, one can see that it is by no means a foregone conclusion that a clinic will pass the first time round, which underlines the concerns that I was expressing. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
18: After Clause 7, insert the following new Clause—
“Administration of medicine
In section 58(1)(b) of the 1983 Act (treatment requiring consent or a second opinion) for “three months” substitute “28 days”.”
The noble Earl said: Amendment No. 18 takes us once again into serious and important territory. It relates to what is known as the three-month rule. The 1983 Act entitles the medical practitioner to treat a patient with medication for his or her mental disorder without the person’s consent—indeed, in the face of his outright opposition—for a period of three months. Before the end of this period, Section 58 of the Act requires that a second medical opinion must be sought from a doctor appointed under Part IV before treatment can continue. A second opinion is required under two sets of circumstances: either when the patient does not consent, assuming he has capacity; or where the patient lacks capacity and the responsible clinician considers that the treatment should be given. What this amounts to in the Act is an exceptional power to override the choice of those patients who retain the capacity to make their own choices. In no other medical context would such a power be countenanced. Theoretically, the responsible clinician should seek the consent of the patient and listen to his or her views, but all too often this does not happen.
The Mental Health Act Commission has reported as follows:
“Too many patients feel that they are excluded from decision making and the exercise of choice in their hospital treatment, and unable to discuss their subjective experiences of therapeutic effect or adverse side effects. This is likely to exacerbate the likelihood of non-compliance after discharge and may contribute to the problems of ‘revolving door’ readmissions”.
That is from the commission’s biennial report for 2003-05.
In fact, the commission finds when it visits hospitals that the issue of medical treatment is a key one for patients. It is an area in which complaints are frequently made. Patients are reported as being dissatisfied with the side effects of their medication and with the medication that has been prescribed without their own preferences being taken into account. Let me remind the Committee of some of the side effects that these powerful and potentially toxic chemicals have on those who take them: serious weight gain, leading to obesity; diabetes; impotence; disabling and embarrassing movement disorders; lethargy; and feeling drugged up all the time. Those are just a few examples out of a very long and pretty unpleasant list.
Quite apart from the bad side effects, a patient’s diagnosis is hardly ever straightforward. It can change several times over the period of detention. Medication not uncommonly needs to be changed. Dosages need to be changed. The whole business of prescribing the right drug in the right amount is very difficult. I would argue that these are factors that militate strongly in favour of careful and prompt oversight of any medication given in these circumstances. Three months of being treated without consent or with a lack of capacity to consent to treatments, which may be causing harm, is simply too long. There is a power in the 1983 Act for the Secretary of State to reduce the period by order. However, this has not happened. Under the 2004 draft Bill, there would have been tribunal authorisation of compulsory treatment by 28 days. In keeping with that, I am proposing through this amendment that the period should be reduced to 28 days.
Once again, I feel that I should quote the views of the Mental Health Act Commission, from its 11th biennial report:
“We believe that the current Act provides insufficient protection to patients in the first three months of their treatment under detention, when they may be forcibly given medication in doses or combinations without the oversight of a Second Opinion Appointed Doctor. Some RMOs appear to share our unease: we receive (but have to decline) occasional requests for statutory Second Opinions in relation to such patients”.
Let us seize the initiative and take the opportunity now to give patients an extra safeguard. It is one that I believe will have enormous impact on their health and well-being, without, as far as I can see, necessitating any cost implications. I hope that the Minister will share my view that it is time for the change to be made. I beg to move.
I support everything that the noble Earl, Lord Howe, said and simply add one other piece of evidence from the many we had in support of this amendment. The National Patient Safety Agency’s report, Building a Memory, records some instances where the drugs have seemed somewhat eccentric. We will be talking about that issue later on, but the report particularly suggests as the sort of things where people felt uncomfortable with the drugs that they were given such examples as psychotropic drugs prescribed above the normal amount in the formulary and the use of anti-epileptic drugs as mood stabilisers. The quotation that we got about being drugged up all the time is going to resonate in our ears for a long time.
Reducing the period from three months to 28 days is not a major thing for the Government to do. It would make a huge difference to how patients feel in terms of safety. They would be more likely to seek treatment if they did not feel that, compulsorily, they might be given for three months treatment that they actively dislike and that makes them feel very unpleasant. I hope that the Minister will see reason in this amendment and in those grouped with it, and perhaps see whether he can do something.
I rise to speak to Amendment No. 18. I have great sympathy with the purpose of this amendment and great interest as chairman of the Mental Health Act Commission, which was mentioned by the noble Earl, Lord Howe.
It will be useful to go back a bit. The justification for the current three-month period, during which treatment with psychiatric medication can be imposed upon a detained patient regardless of consent, derives from the words of the Minister during the 1982 Standing Committee debates on the Mental Health Bill, as it was then. Practitioners in the field today who seek advice on or interpretation of the statute will find the words of that justification preserved in the Mental Health Act Manual:
“The three months gives time for the psychiatrist to consider a treatment programme which suits the patient. Three months seems to fit best with both clinical experience and clinical practice. It is long enough to allow a proper valuation and assessment of what, if any, long-term treatment may be needed. It is also short enough to ensure that a patient’s consent, or a second opinion, is obtained before a long-term course of drug treatment gets too far ahead”.
Noble Lords may think that that is fair enough. But I have to ask, a quarter of a century later, are we still content that three months must pass before a patient who is being treated with medication has a right either to give their consent or to withhold it? Should it be three months before a patient is afforded the safeguard of a second opinion, when he or she is being forced to take such medication? I think not. I, for one, am certainly not content. Everything that I believe tells me that three months is too long to withhold a patient’s rights. I suspect that that is also the feeling of this Chamber. In the 25 years since the argument was made, the general recognition of and sensitivity towards human rights in the healthcare context has come a long way. I add my support to the amendment. However, I am not ignorant of its possible consequences and I hope that the Minister will forgive me for anticipating his response to the amendment, as I suspect that his greatest concern will be with its resource impact. It is certainly the case that reducing the period before which patients are entitled to a second opinion will cause a rise in the numbers of second opinions. As the chairman of the body responsible for administering those second opinions, this gives me slight pause—but it is only slight.
In any case, the number of second opinions has significantly increased over the lifetime of the Act by some 250 per cent. The Mental Health Act Commission’s last biennial report speculated on the possible reasons for that rise, one of which was a growing appreciation and care by clinicians to consider whether apparent consent from a patient was genuine, rather than being based on inadequate understanding, capacity or freedom of choice.
So far, the administrative burden of the safeguards provided by the 1983 Act has already increased dramatically over the lifetime of that Act. The Mental Health Act Commission has managed that burden and the Department of Health has, in the main, funded it. I urge the Minister to be cautious in rejecting this amendment on the grounds that its costs are uncertain. We should welcome the extension of an existing safeguard over a wider population of those who are treated without consent and be prepared to meet the costs that safeguards may entail.
I support Amendments Nos. 18 and 19, tabled by the noble Earl. We now know that medicines used to treat mental disorder can have extremely serious adverse effects and are not always effective. Comments made to MIND include:
“I was given haloperidol. It made my limbs stiff. It gave me anxiety. I was suicidal”.
“I want the Government to realise that depixol and other antipsychotic drugs can cause apathy … It was as if my soul had died”.
The severe side effects mentioned by the noble Earl, Lord Howe, can be added to. It is a long list.
People often know what has previously helped or harmed them and know how they are currently affected by what they are taking. They are often self-experts in this area. People may be willing to try different approaches from those being considered. These days, three months is far too long for trial treatment before requiring consent or a second opinion, as has been pointed out. Up to a point, I agree with the noble Earl, Lord Howe, that the period should be reduced to 28 days; I would like to see it reduced further. The law should redress the imbalance that is by necessity involved in compulsion, by requiring clinicians to have regard to patients’ wishes. That would also help clinicians to find the best treatment for the people concerned. I hope that my noble friend the Minister will take the amendments on board.
I support the amendment tabled by my noble friend Lord Howe. The Minister will remember from our debates some years ago a tragic case to which I referred him. It related to the very fact that one could not review within three months the drugs prescribed in a case. It caused a great deal of pain and suffering, not only to the patient, but to the patient’s family who were watching, because they were totally disempowered from altering the situation.
We have moved a long way since I was in the DHSS, back in the early 1980s, when the current Act was formulated, and then passed, just after I left the department; but it would be sensible, in terms of the drugs bill and the needs of the patient and their family, to carry out a review long before three months. I support the 28-day period that my noble friend has proposed and I hope that the Minister will look at that extremely carefully, even if he cannot agree tonight, because there is a wide gap between today’s situation and the one that we faced way back in the early 1980s.
I had not planned to speak to this amendment but wish to make one point. I was involved in the development of the 1983 Act during its passage through Parliament. At that time, we assumed that people would spend the period that we are talking about in hospital while under treatment. Now it is important to consider the interconnection between the different clauses of this Bill. We are now talking about people being given community treatment orders; certainly in my trust in east London, many people may remain in hospital for quite a brief period.
I ask the Minister to consider what it would feel like to be a patient who had been given a cluster of treatments that have these very unpleasant side effects and then be placed on a community treatment order, possibly by someone who is not even a doctor, left on the treatments without access to a second opinion, and without the day-by-day access to doctors whereby one could say, “Look, doctor, I feel dreadful; all sorts of horrible things are happening to me”. At least you are under surveillance in hospital. That would not be the case if you were in the community. I ask the Minister carefully to consider the implications of that if community treatment orders are brought in.
Of course I will give careful consideration to the debate. The noble Earl, Lord Howe, said that patients were not sufficiently involved in decision-making and raised issues relating to the side effects of drugs on patients and the lack of explanation. I agree that those are matters of concern. They are covered in the draft code of practice and in the principles that we have debated, which are set out in Chapter 1—the participation principle and the communication principle. I accept that noble Lords have made relevant comments about the safeguards needed in these situations.
The Government think that the three-month period is, and remains, appropriate. Although the argument given in 1982 was similar to the view that I shall express tonight, it is no less valid. Indeed, the elements of the 1983 Act on which we are building this new legislation testify to the robustness of many of the provisions contained in that Act. The three-month period is considered appropriate because of the time that it allows for an optimum regime of medication to be identified—or, at least, for certain options to be ruled out before a certificate is needed. Different medications need to be tried before the most suitable one is identified.
There are practical issues involved. It would surely be unnecessary and ineffective to require certification for ongoing treatment before the period needed to determine that that treatment was the best option had elapsed. For instance, some medication, such as anti-depressants, can take as long as four weeks before it begins to take effect. The amendment would require SOADs to consider approving the continuation of a treatment whose benefits to that individual patient had not yet been demonstrated. The doctor may, soon after the SOAD visit, identify that a different treatment is required for that patient, and so the process would begin again. Several certificates might be needed in succession, each one requiring the patient to be examined by a SOAD, particularly if the patient cannot or does not consent. While a second opinion is clearly a valuable safeguard, some patients might find it intrusive or upsetting, especially if it happens more than is necessary.
The Government are not persuaded that the limit should be reduced from three months to 28 days as suggested in the amendment. It is worth making the point that, as the noble Earl, Lord Howe, suggested, the legislation would allow that period to be so reduced. It is not so much a matter of the legislation as of the actual practice.
I will also comment on costs. The noble Lord was very tempting when he said that, because the workload has increased over the years—in essence, since the original Act—we should just accept, I guess, a continued increase in workload as a normal organic development. I understand that. But in considering this further, surely the noble Lord has to consider the implications for service providers. Our initial analysis shows that it would increase the number of certificates required every year by more than 6,000, adding on to a baseline of 11,000 a year. We think that about 20,000 extra hours of psychiatric time would be required in a year. We are not convinced either that that would be the right use of resources or that the case has been made for 28 days. On that basis, I hope that this amendment will not be pursued.
Will the noble Lord share with the Committee the basis on which that calculation was made? Perhaps he could write to us. My reason for asking that is that the joint scrutiny committee had enormous difficulty in accepting some of the department’s estimates, some of which simply did not stand up to scrutiny. I am not suggesting that that is the case here but it would be helpful to know the basis for the calculation.
In fairness, these are estimates, and detailed work would need to be done in relation to the amendment. Can I accept the challenge to write to the noble Baroness and other noble Lords with the information I have that backs up the figure I mentioned?
I am immensely grateful for the authoritative support of the noble Lord, Lord Patel of Bradford, and the support of the noble Lord, Lord Bragg, my noble friend Lady Chalker, and the noble Baronesses, Lady Meacher, Lady Neuberger and Lady Barker.
In my naivety, I had thought, along with the noble Baroness, Lady Neuberger, that this was not a major thing for the Government to concede. It appears all of a sudden that it is a major thing, despite the fact that in the 2004 draft Bill we had a proposal not so very different from it. Time and again, Ministers are giving us answers that are diametrically opposite to the position that is implicit, or indeed explicit, in the 2004 draft Bill. I am at a loss to know why. I really had hoped to be pushing at an open door with the amendment. It might have been a coincidence that we heard from the Minister about the cost implications in some detail. My suspicions are raised yet again that perhaps, in part, that lies behind the Government’s resistance to a number of our amendments.
It would be unfair to say that some of the changes we are making as a result of this Bill are a cost-reduction exercise. For instance, in the earlier debate that my noble friend responded to, we talked about the role of clinicians. It was suggested that decisions about developing and extending the role of health professionals were made on cost grounds. I would refute that. We are seeking to make the best use of the many talented professionals we have. I think that it is reasonable for the Government to say, when amendments are put forward, that there may be a cost implication; it may be an opportunity cost in terms of professionals’ time. It is fair to put that as an issue to noble Lords arguing to reduce the limit from three months to 28 days.
Of course I accept the point put in that way. The noble Lord, Lord Patel, was surely right: clinical opinion, like science and technology, has moved on since 1983. I believe that we need to take account of that.
This issue is a matter of legislation because over 20 years the three-month limit has remained unchanged, despite the power in the 1983 Act given to Ministers to reduce the period. Nevertheless, we have gone as far as we can with this issue this evening. With thanks once again to noble Lords who have participated in the debate, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
19: After Clause 7, insert the following new Clause—
“Other treatment safeguards
(1) The 1983 Act is amended as follows.
(2) After subsection (4) of section 58 (treatment requiring consent or a second opinion) insert—
“(4B) When deciding what treatment to give, the responsible clinician shall have regard to the wishes of the patient, whether expressed directly or in an advance statement, and shall record any treatments requested by the patient in the patient’s medical record, and if that treatment is not given shall record the reasons for this.
(4C) In certifying that a treatment should be given under section 58(3)(b), 58(3)(c) or 63A, the registered medical practitioner concerned shall give reasons in writing for his opinion explaining how the treatment represents, for the patient in question, a favourable balance of therapeutic benefit over harm.
(4D) The reasons given under subsection (4C) shall be communicated to the patient, except where this is likely to cause serious harm to the physical or mental health of the patient or of any other person.”
(3) In section 63 (treatment not requiring consent), at the end, insert—
“(2) When deciding what treatment to give, the responsible clinician shall have regard to the wishes of the patient, whether expressed directly or in an advance statement, and shall record any treatments requested by the patient in the patient’s medical record, and if that treatment is not given shall record the reasons for this.””
The noble Earl said: As we proceed through these debates there is one fundamentally important truth that we should never lose sight of: the particularly special vulnerability of mental health patients. It could be argued that all patients, no matter what their illness, are vulnerable to some degree, but those in need of treatment for mental illness are in a class apart. Emotionally they are often debilitated, they frequently find it hard to express themselves coherently and they can easily feel intimidated. Often I hear it said that patients who suffer from a mental condition have a feeling of worthlessness, as a result of which they are not inclined to assert themselves or to stand up for their own interests when otherwise they might have done so. All too frequently they are subject to the kind of paternalistic assumptions that elsewhere in medicine are thankfully becoming rarer; in particular the assumption that respecting autonomy is not all that relevant when that patient’s mind is disturbed. The wrongness of that assumption needs to be stated and repeated. Most people, even when mentally ill, and frequently when very ill, are perfectly capable of rational thought and are therefore perfectly capable of making up their own mind about things. In practice, though, that is not how many mental health patients are treated.
It is against that background that I invite the Committee to consider the amendment. In it and, incidentally, in the one that follows, we confront head-on the twin principles of patient autonomy and transparency of decision-making, and the need to maximise both as far as practically possible.
Psychiatric medication can have very serious side effects. These can include painful muscle spasms, involuntary movements, loss of energy, weight gain and all the things that we talked about earlier. There is surely no other field of medicine where such adverse effects of routine treatment would be tolerated, but it is surprising how often clinicians are prepared to take them for granted when treating patients with mental illness.
The joint scrutiny committee, taking evidence on the issue, heard witnesses talk about patients being browbeaten into taking medication, regardless of their wishes, or simply having their express wishes ignored. Yet it is often the patient who knows which treatment works best for him and which ones do not work or are positively harmful. It might be thought that a duty on the part of the clinician to have regard to the wishes of the patient is the kind of thing that would sit better in the code of practice than in the Bill. I disagree. The code of practice has an important part to play in how the Act is implemented, but the particular vulnerability of mental health patients and the gravity of administering treatment under compulsion mean that we need to go further.
Putting in the Bill a duty for clinicians to have regard to the wishes of the patient would achieve three things: it would improve patient autonomy and the patient’s feeling of being involved in his own treatment; it would increase the chance of a patient agreeing to treatment, thus avoiding compulsion altogether; and it would improve the safety and effectiveness of treatment because the patient will often know what has previously helped or harmed him. A doctor may have a very clear idea of what is therapeutically beneficial and feasible for an individual; however not only is it right that he should take the patient along with him if he can, but the chances of the treatment proving effective are instantly much greater if he does so. If, on top of that, the clinician is required to record the treatment requested by the patient—and, if necessary, the reasons why that treatment cannot be provided—there is automatically much better accountability for the treatment decision and a better basis for assessing what kind of care a patient needs.
I want to continue that train of thought in the next part of the amendment. It proposes that second-opinion appointed doctors must explain in writing why they have authorised a particular treatment and provide those reasons to the patient. The amendment is carefully worded to reflect recent case law. Case law has established two things in the past five years. First, the second-opinion doctor must reach his or her own independent views on the proposed treatment. Secondly, the doctor concerned owes a duty in writing regarding his opinion when a decision is taken that sanctions the violation of a mentally competent adult patient’s autonomy.
The Mental Health Act Commission has published guidance which advises that reasons should be given for all decisions. That, too, is reflected in the amendment. We are talking about not only an evidence-based approach but one that is transparent. The benefit to the patient is in giving a basis for questioning the proposed treatment or for being reassured about it. That serves to instil confidence in the second-opinion system. This amendment is not only desirable but necessary. I hope that the Minister will consider it favourably. I beg to move.
I wish to speak briefly in support of this amendment. The noble Earl is absolutely right when he speaks of the evidence that came to the Joint Committee. Indeed, a recurrent theme in the work of the Joint Committee, and the evidence and written representations we heard, was that patients should have the maximum autonomy possible when their mental condition is being treated. Since we published our report, and since the Government’s response, I—and no doubt others on the committee—have received a steady stream of correspondence from patients and ex-patients. The recurrent theme to emerge from that correspondence is that they do not understand why they were given certain forms of treatment. Nobody explained to them why they were given certain forms of treatment. They may be right or they may be wrong; some of those people, no doubt, will be writing in a misleading way, making misleading statements, or may have misunderstood why they were given certain forms of treatment, but that rather begs the question. The important point is that it should be possible to establish why that patient was given a certain form of treatment.
In an earlier part of my career as a practising barrister, I took on a number of clinical negligence cases. From time to time psychiatry negligence cases arose. They are extremely difficult on both sides. They are very difficult to prepare for the claimant because it is in the nature of the case for evidence to be hard to come by. They are very difficult for the clinician because any clinician faced with a claim for professional negligence finds it, naturally, very difficult to deal with—as do all of us in the professions.
This amendment requires a very simple change to the way notes are taken, by writing down the reasons why a decision that may have permanent effects on a person’s chemistry has been taken. We hope that the Government will see it as appropriate to include this enhancement of autonomy and understanding within the text of the legislation.
I rise to support this amendment. In particular, I want to speak about the second-opinion appointed doctor role. There was, no doubt, quite a lot of resentment from psychiatrists back in 1983, on hearing that their opinions would be questioned by other psychiatrists imposed upon them at a certain point in a person’s treatment. This led, at first, to the second-opinion doctor being a rubber-stamping exercise. People would come in, without always arriving when you were on the ward or with your patient, and left their opinion after a brief consultation merely by giving a certificate. They did not have to express a view at all.
As we have heard, case law has established that this is no longer acceptable. The Mental Health Act Commission has pressed for years—since the 1983 Act—for this to be a proper second opinion. It has become recognised that this is now much more like a realistic second opinion. We owe it to patients to make this a system of realistic second opinion. It is surprising how many times patients have said that they did not know that it was a second-opinion doctor who had come to give an opinion, so I want to add my support to this particular part of the amendment.
The other part, about taking account of patients' wishes, seems to me very closely related to an amendment that we will soon reach—Amendment No. 21, I think—on advance directives. That is a lesser but equally important element of taking account of what patients say. All we are asking doctors to do is what they would do anyway if they were practising properly: to listen to patients and write down their express wishes. That, coupled with the second opinion being a proper opinion, written down properly so that it can be discussed with the patient, seems to me absolutely fair and reasonable. I cannot think how that would add to the expense of the services. It would go a small way to give patients a reasonable second-opinion service.
I should like to make a brief contribution about Amendment No. 19. In part, the amendment is intended to preserve in statute such requirements of good practice and lawful decision-making as have been developed through a string of court judgments relating to the operation of Part IV of the 1983 Act through its lifetime and to date. It seems to me eminently sensible to do so, so that statute law reflects and protects those basic requirements. I therefore support the amendment wholeheartedly.
This is just a small point, but I note that the wording requires a doctor authorising treatment as the patient’s responsible medical officer, or as a second-opinion appointed doctor, to explain,
“how the treatment represents a favourable balance of therapeutic benefit over harm”.
The Government have been implacable in their opposition to the concept of therapeutic benefit as a criterion for detention under the powers in the legislation. I think that the Minister knows that this debate has not come to an end. I hope that the Government will not, in the end, continue to oppose the concept of therapeutic benefit, especially in the context of the imposition of medical treatment, where it is surely a most appropriate measure. In any case, I hope that the Minister will take the spirit of the amendment and come back with wording that the Government are prepared to accept.
I am sorry that I shall disappoint the noble Baroness. I thought that today the Government have shown themselves prepared to listen. We have agreed to take back a number of issues in the spirit of co-operation to explore ideas that I referred to when I first spoke to your Lordships only a week ago—although it seems much longer.
I could not disagree at all with the point made by the noble Baroness about good practice and the comments that have been made here today about communication with the patient and discussion of treatment and medication. Those are the essence of good practice. Good patient care involves understanding the needs and wishes of the patient. We want to ensure that patients’ wishes are fully taken into account, including those expressed in advance. That is the whole purpose of the statutory code. It is there to embrace within it the practice that we want instituted, implemented and developed in the health service.
The question is: what is the best way to ensure that there is a proper communication of patients' wishes and views? We believe very strongly that it is in the code of practice. It is through the code of practice that we will achieve improved communication with patients and all the other things that the Committee holds dear. That is not an issue just for patients detained under the Mental Health Act, or for mental health services. That is an aspect of good practice in all clinical care—not just through the code of practice. There is also the impact of the National Service Framework, the NICE guidelines and the many programmes that operate through the care services improvement partnership.
Although I agree that records should reflect discussion with patients, there must be scope for some best practice in how that would operate. For instance, in the case of a patient who might repeatedly request a given treatment, even after extensive discussion, would it be right that that would be recorded time, time and time again? Surely, there is a risk that that is too bureaucratic and potentially open to challenge. That is why there must be some room for discretion and why the good practice approach is the best approach to take.
There are two aspects to the substance of the part of the amendment concerning the requirement for second-opinion appointed doctors to record their reasoning or to change the test that they must apply. Members of the Committee have already referred to the fact that it is already well established by case law that SOADs owe a duty to give their reasons to patients. When that patient has capacity and does not consent to treatment, we would expect them to do so in all cases. Good clinical practice would mean that such reasons would be recorded in the patient’s notes and we do not see the need for statutory provision to that effect.
If, however, the amendment is really about a further test that the SOAD must apply—the noble Lord, Lord Patel, referred to that—we do not see the need for the extra test. In a sense, that takes us back to the issue of treatability, appropriate treatment and the therapeutic benefit test. I do not fully understand what is meant by,
“a favourable balance of therapeutic benefit over harm”.
Whatever the noble Earl takes it to mean, we believe that it must be subsumed within the test of appropriateness in Clause 6. The amendment focuses on one aspect of a decision, rather than taking a holistic approach, as we have tried to do when drafting the Bill.
In conclusion, I have no doubt about the importance of the second opinion doctor, nor of the need for effective communication with the patient and the practitioner but, in the end, we think that that is best governed by the code of practice.
The Minister has resisted the amendment and believes that the good practice approach is appropriate. That is not an unexpected reply, although I find it disappointing. He is right to say that listening to patients is automatic in other branches of medicine. Writing down their wishes is equally basic. The fact is that in the field of mental health, where patients are uniquely vulnerable and unable to stand up for their own interests, all too often it does not happen. That was the concern that underlay my earlier remarks. He is also right to say that the phrase “therapeutic benefit” lurks in the foliage of the amendment. I did not expect it to escape his notice. Clearly, that presents the Government with some difficulty. I shall need to go away to reflect on the persuasiveness of the Minister’s reply. I understand why he takes the view that he does. I shall have to decide whether I am convinced by his arguments. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
This may be an appropriate moment to move that the House be resumed for the Question for Short Debate. In moving the Motion, I suggest that Committee begin again not before 8.30 pm. I also point out that the limit for Back-Bench contributions in the debate has now risen from six to seven minutes, following a reduction in the number of speakers.
Moved accordingly, and, on Question, Motion agreed to.