moved Amendment No. 9:

My Lords, I seek clarification on one point. Those of us who come new to this material find a provision in Amendment No. 75, which refers to the possible,

“withdrawal or withholding of ordinary nursing care or personal care whether or not P [the patient] has been deprived of his liberty”.

Obviously such a provision attracts attention because no one wants to get into a situation where there could be a withdrawal or a withholding of ordinary nursing care. What I am not sure about is why the amendment is necessary. Is it because there is no provision in the Bill, or is it because there is a risk that such a situation could arise? It is something one would not expect to find. Therefore, I should like to know why it is necessary to put it into an amendment to the Mental Capacity Act 2005. I am not sure why it is required.

My Lords, the noble Lord, Lord Carlile, has, in a sense, moved a Committee-type amendment on Report. In that spirit he has asked for clarification of the law. I will give what advice I can tonight, but I also offer to write further to the noble Lord and other noble Lords, as he has raised some interesting points that will inform later debate on the Bill.

It may be helpful if I start by outlining the changes we intend to make by Clause 8 and the reasons for them. We are changing the definition of medical treatment in the Act primarily to reflect the fact that we are opening up the role currently played by the responsible medical officer to a wider group of professionals. We debated that issue just before the dinner break. Because of that change it no longer makes sense for the definition of medical treatment to refer to care, habilitation and rehabilitation under medical supervision, as “medical supervision” in this context of a definition of treatment could be interpreted as requiring the supervision of a registered medical practitioner. As we have made clear, we want medical treatments that fall within the ambit of the Act to go beyond those that can be provided by or supervised by doctors.

We are also taking the opportunity to make it explicit that the definition of medical treatment includes psychological intervention. Practical examples of psychological intervention might include cognitive therapy, behaviour therapy and counselling. Questions have been asked about issues that arise from physical conditions that can then give rise to mental disorders. Clearly, many of those disorders will be transitory and will pass with the physical disorder. So the question of using the Mental Health Act will often not arise. I say to the noble Lord, Lord Carlile, that my understanding is that A&E departments are well used to checking for instances of, for example, urinary tract infections and other common problems, which may potentially cause mental disturbance in older patients. If such an infection is found, treatment will be offered accordingly. But, clearly, when assessing patients in order to decide whether it is necessary to use the powers in the Mental Health Act, it is important to consider whether their mental health problems are a direct consequence of a physical ailment. The fact that the mental disorder can be expected to be alleviated by tackling the underlying physical condition may be decisive in deciding whether to use the Act as there will be an effective and more appropriate alternative. Overlooking such factors is a matter of poor practice rather than the law.

Conversely, I do not think that it should be assumed that it will never be appropriate to use the Act. It surely must depend on the particular circumstances of the case, the severity of the mental health problems the patient is experiencing, the persistence of the symptoms and the risk to their own safety and that of others. Our starting point is that if the person’s mental condition, whatever its cause, is putting them or others at risk sufficient to warrant detention in hospital for treatment, then there should be no arbitrary obstacles to the Act being used.

As regards case law, I have been advised that in the 1995 case of B against Croydon Health Authority medical treatment for medical disorders can include a range of acts ancillary to the core treatment a patient is receiving. That can include treatment that is a necessary prerequisite to such treatment. Each case must be judged on its merits, but it would probably be a mistake to attempt to draw rigid lines and say that treatment for an underlying physical condition could never legitimately be considered as part of treatment for mental disorder.

Amendments Nos. 10 and 75 are equally interesting. It is clearly very important to ensure that ill, frail or vulnerable people being looked after in a hospital or care home receive satisfactory—more than satisfactory—care. In a sense, the noble Lord takes us back to the amendment moved by the noble Baroness, Lady Knight, in Committee, when she raised some important matters of concern. Noble Lords will know that I have agreed to meet the noble Baroness because, although we do not think that the legislative framework is wrong, she has identified matters which, if there is hard evidence, suggest an extraordinary failure in practice in some care institutions. We need to do very much better if the poor practice that she identified is in fact happening in either the NHS or care homes.

The Mental Capacity Act has established in statute a clear and robust framework for actions and decisions to be taken for people who lack capacity to take decisions for themselves which would otherwise be unlawful. It provides a framework. Its purpose is not to set out what decision is or is not appropriate in any given place.

On the relationship between medical treatment, mental health treatment and the confusion that the noble Lord describes between the Mental Health Act and the Mental Capacity Act, I will see whether issues need to be confronted. As I said, I shall write to him. Our initial reaction is that the law is clear. The Mental Health Act provides for compulsory treatment for mental disorder. The Mental Capacity Act provides a basis for treatment of any kind for people without capacity to consent to it. However, as I said, I shall look further at the matter and, in the first instance, write to the noble Lord.

My Lords, I am very grateful to the Minister for dealing with the matter in such a constructive way. I should be happy to discuss the matter with him outside the Chamber subsequently if that is convenient and possible.

The amendment is about the confidence of clinicians—medical practitioners—in carrying out treatment on patients who have needs. It is also about ensuring that patients who may be only temporarily incapacitated and who go into nursing homes or rest homes have their rights fully protected so that they do not find themselves in some kind of limbo when they are once more capable of managing their own affairs. It has been dealt with in a very constructive spirit. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 10 to 12 not moved.]

moved Amendment No. 13:

My Lords, I support the words of the noble Earl, Lord Howe, who has made a strong case for why three months is simply too long. I want to add just a couple of points to his remarks. First, those of us who have been in professional practice or have chaired NHS trusts have experience of what can only be described as “macho prescribing”. People are prescribing at doses above the BNF recommendation. Patients have a real fear of that and it is one of the reasons why a review after a month rather than three months is something we ought to press for very hard.

My second point is one that we have considered in the context of a whole variety of issues as we have debated the Bill: we are concerned about public safety. If patients are frightened of the treatment they may receive, they are less likely to seek it. If they feel that they will be treated compulsorily, they will become even more anxious if that treatment is not reviewed with a second opinion after one month rather than three months. All this will be going on for too long and that makes people more fearful. The more fearful they are, the less likely they are to seek early treatment and the more likely it is that they will fall into the compulsory net. The circle then goes around all over again.

Simply to add to the words of the noble Earl, Lord Howe, we need to think hard not only about the opinion of the Joint Committee on Human Rights, but also about the effect on patients and how they feel about this. We must consider how in the longer term they will accept treatment, either voluntarily or compulsorily.

My Lords, I am grateful to the noble Earl, Lord Howe, for bringing this amendment back to the House on Report. I supported it in our previous debates and I continue to support it now. I should add that I am chairman of the Mental Health Act Commission, which administers second opinions under the 1983 Act. I argued at Second Reading that the additional costs of reducing the three-month rule to a one-month rule should be met, as this was a measure that would improve patient safeguards and respect for human rights. The Minister argued against any change on three grounds.

First, he argued that certification before three months might be too restrictive and would not allow for different drugs to be tried before the right one was found. This is unlikely to be true for the simple technical reason that certificates tend to authorise drugs in terms of the BNF category rather than naming individual drugs, so there would still be some room for the trial and error that characterises the initial stages of treatment. Secondly, the Minister argued that some drugs do not take effect for a number of weeks. It is true, for example, that antidepressants can take up to a month to have any effect, and that this could cause difficulties where second-opinion doctors might be asked to authorise the continuation of treatment whose beneficial effects had not yet been demonstrated. But, of course, our doctors frequently do this, for instance when there are proposed changes to treatment plans after a patient’s “three-month period” is over. Consideration of as yet untried changes to individual patients’ treatment is a large part of the second-opinion role, and this objection is thus misplaced.

Finally, the Minister was concerned at the additional cost and use of psychiatrists’ time. Underlying this concern is a worrying implication that the benefit to patients in having the safeguard of a second opinion does not outweigh the cost of providing that second opinion. I cannot accept that. The Mental Health Act Commission’s last biennial report highlighted that a significant change is made to a patient’s treatment plan as the result of a second opinion visit on every working day of the year. But many detained patients will never see a second-opinion doctor or have their treatment subjected to such scrutiny because they are discharged within three months of treatment commencing. Others who remain in hospital and go on to see a second-opinion doctor may quite justifiably wonder where that safeguard has been for the initial period of their detention.

The amendment could improve patient care and patients’ confidence in their care. The consent provisions in the 1983 Act, of which this is a crucial part, were hard won in 1982, following powerful lobbying at the time by Mind, in the shape of Larry Gostin and the late Tony Smythe. But the idea was very new when the three-month rule emerged. We now have substantial experience of operating these sections; the Mental Health Act Commission, among others, recognises the importance of shortening the time for an opinion.

My Lords, I have added my name to the amendment and wish to speak briefly in its support. The Government indicated that they were thinking in this direction in the 2004 Bill; this was welcomed by mental health services as an added safeguard. I strongly support the amendment.

My Lords, the amendment seeks to reduce from three months to 28 days the period for which a second-opinion appointed doctor must authorise the administering of medication when the patient does not consent or is incapable of consenting. We discussed the amendment in Committee. I said then that we believed the three-month period contained in Section 58 remains appropriate, and we have not been persuaded otherwise.

Where treatment is provided for under compulsion, it is essential that there are patient safeguards in place. We have those. The Act provides for some treatments where safeguards come into play immediately the treatment is proposed. ECT is one such treatment. Amendments Nos. 30 and 31 provide that consent will in future be required of any patient capable of giving it before ECT can be administered. It is also the case that a person cannot receive compulsory medication for their mental disorder unless their detention is supported by two doctors and an application made by, in the vast majority of cases, an approved mental health practitioner.

It is best if the certification for continuing with compulsory treatment be undertaken at a time when the efficacy of the proposed plan of treatments is understood. We do not depart from the argument I used in Committee. We should also consider the right time for the patient to be effectively involved in the process.

The noble Earl, Lord Howe, referred to the recent report of the Joint Committee on Human Rights, which might be described as rather tentatively expressing or questioning whether the Government are meeting their obligations under Article 8. Obviously we will consider that report, but it is our view that the ECHR does not require us to have second opinions at all. In our view, when the courts have addressed these matters, they have not taken the view that the provision breaches Article 8 or that three months is too long a period.

We have talked about Scotland a lot. The mental health legislation in force in Scotland prior to the current Scottish Act was essentially the same as our 1983 Act. In 2002, the Court of Session held it to provide adequate procedural safeguards in relation to the compulsory medication of patients within an initial three-month period and that it was not in contravention of Article 8. In addition, the High Court recently refused leave for a judicial review of the ECHR compatibility of Section 63 of the Act on the grounds that, inter alia, the three-month period is too long.

Bringing forward from three months to 28 days the time allowed for the involvement of a SOAD in cases where a patient refuses or is incapable of consent is not a simple act. It is not a matter of providing the same service but earlier, as I said in Committee. I understand what noble Lords have said about medication, but I think a three-month period provides an opportunity for the treating psychiatrist to reflect on the medications he proposes to continue to administer to the patient. Of course there are medications whose particular efficacy with an individual patient can be determined within 28 days—there is no doubt about that—but that will not always be the case. It is already the case that when the SOAD is asked to certify a relatively recent prescribed treatment, the efficacy of such treatment may not yet be known. The situation can arise because the current medication is a change from earlier but less effective medication, or because a patient is to be treated with a different type of medication addressing a different aspect of the patient’s condition. The shorter the period for involving a SOAD, the more likely it is that those circumstances will apply. That is likely to be a regular aspect of providing certificates at 28 days.

It could be routine that there would be insufficient evidence for the SOAD to certify with confidence that the proposed medication is the correct plan of treatment for the longer term, either because 28 days is not a long enough period for treatment with that particular medication or because the proposed medication has only recently been prescribed. The amendment would see many more instances where SOADs would set shorter periods for their certificate, requiring earlier review periods and follow-up SOAD visits. I do not see any value to patients in having a follow-up visit from a SOAD simply because the first visit took place too early in their treatment plan. Not all patients will welcome the visit of the SOAD.

I want to cover the issue raised by the noble Lord, Lord Patel, about our debate in Committee on the implications of this change for demands for SOADs and therefore on the psychiatric profession. It also concerns a point raised by the noble Lord, Lord Ramsbotham, in our earlier debate about the cost of this legislation. This is very relevant to that debate. Current practice is that the second-opinion doctor appointed by the MHAC has at least five years’ experience as a consultant psychiatrist. In 2005-06, 251 consultant psychiatrists were approved by the MHAC and made themselves available to be appointed to give second opinions as required by the Act. Obviously, that role is ancillary to their usual role as consultant psychiatrists, often with very busy caseloads of their own. I gave an initial estimate to the noble Baroness, Lady Murphy, on this, that a reduction to 28 days would result in further increases on consultant psychiatric time to the tune of approximately 20,000 hours in any one-year period.

I say to the noble Lord, Lord Patel, that it is not as much about the cost as the opportunity cost, in the sense of the time spent by psychiatrists and whether it is better spent acting as SOADs or providing direct psychiatric care. Clearly, that is a matter of judgment, but I ask the noble Lord to accept that my doubts about reducing the period from three months to 28 days are not based on a crude worry about the cost. However, I refer the noble Lord to the debates when I read the Statement about our first efforts to introduce legislation a long time ago. One of the great criticisms made of the original proposals was that many practitioners would be tied up in the statutory safeguards that were to be put in place. One cannot simply ignore the consequences of reducing the period from three months to 28 days.

It is also worth pointing out to noble Lords that we already have the power in the legislation; there is a regulating power to change the period of days. Given that this is amending legislation, that seems to be a perfectly satisfactory position for primary care legislation to have. It says it is three months, and there is the opportunity, if the time comes and if it is felt appropriate, to reduce that period. The Government strongly resist the amendment.

My Lords, I am naturally disappointed by that reply although I thank the Minister for responding so fully. Feelings run fairly high in the mental health community about this issue and I did not table the Committee amendment again lightly. The new ingredient in the pot since the Committee stage is, of course, the report by the Joint Committee on Human Rights. The Minister kindly undertook to look at that and I welcome his assurance.

There is provision in the 1983 Act to reduce the period of time before a second opinion is required, which indicates to me that the then Government had at least an ambition to bring that about; and, as we have heard, the Government themselves favoured a 28-day period in the 2004 draft Bill. I do not think we can ever afford to forget the potentially serious effect that some of these medications have on patients.

It may also be worth bearing in mind that in many of these cases the responsible clinician, once the Bill becomes an Act, may well be a nurse—someone who is not a doctor. There may be no doctor or psychiatrist involved until the SOAD provides his or her report. Those are real changes that will arise out of the Bill. I do not think that it is right for us to proceed as we have in the past and accept the three-month period as still necessarily the right one. Nevertheless, at this hour, it is right for us to move on. I shall reflect carefully on what the Minister said. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 14:

My Lords, like the noble Baroness I very much welcome the government amendments, so it will seem rather churlish of me to complain that they do not go far enough—but I am afraid I do.

On the issue of urgent treatment, in Committee I raised some questions of interpretation over Section 62, which sets out the circumstances under which urgent treatment may be administered. This is defined as treatment which is,

“immediately necessary to save the patient's life; or.. which (not being irreversible) is immediately necessary to prevent a serious deterioration of his condition; or… which (not being irreversible or hazardous) is immediately necessary to alleviate serious suffering by the patient; or… which (not being irreversible or hazardous) is immediately necessary and represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to himself or to others”.

With regard to ECT, I ask the Minister to clarify the way in which this section should be read, bearing in mind that it is known that for some patients ECT is not only hazardous but can also result in irreversible side effects. I put it to him that the legal uncertainty over whether ECT is permissible as urgent treatment when the patient’s life was not at risk was most unsatisfactory. It is perhaps helpful to put part of the Minister’s reply to me on record. He wrote to me to say:

“Whilst I accept that there is some research that concludes that, for some people, their treatment with ECT has resulted in irreversible physical, cognitive and/or psychological side effects, there is no established consensus in psychiatry that this will happen—or is even likely to happen—with all patients or in all the circumstances that ECT is provided. For any given patient, a clinician could conclude that the patient’s treatment with ECT was not likely to have unfavourable irreversible physical or psychological consequences, and would not entail a significant physical hazard to the patient. Therefore the Government is of the view that it is possible if the right clinical conditions apply for the approved clinician in charge of the treatment of a patient subject to detention to treat that patient with ECT under the circumstances described at Section 62(1)(a), (b), (c) or (d)”.

While I was most grateful for that reply, I really do not understand it. Certainly the Minister is right to say that some patients benefit from ECT and do not suffer unacceptable adverse side effects as a result of it, but he will know that there is now a widely held consensus of views within the medical community about ECT that it is per se potentially hazardous and capable of having irreversible side effects. The point is that you cannot tell in advance which patient is likely to suffer unacceptable damage. You can make that assessment only ex post facto—at least, in most cases. Therefore, if it is true that as a general proposition ECT is now regarded as an inherently hazardous form of treatment, I do not see how it is possible for the Government to be comfortable in asserting the view that they have about the interpretation of Section 62.

It is in any event a worrying interpretation. Urgent treatment is authorised under Section 62 without the need for a second medical opinion, if a patient has refused consent, or when he lacks capacity to consent. I believe that this is one clear instance in which we in Parliament have to listen hard to what the clinicians are telling us. The noble Baroness, Lady Murphy, is one, and she has repeated what she said in Committee, that she,

“cannot envisage a scenario where a fully capacitated patient who was able to consent would fall into the need for urgent treatment”.—[Official Report, 15/1/07; col. 475.]

That view reflects the consensus of medical opinion to which I referred.

We need to remember, too, that ECT will hardly ever be the only emergency treatment available for a patient. In comparison with other treatment options and knowing what we do about it, it is really very difficult to imagine how it could ever be the emergency treatment of choice, especially in circumstances in which a patient’s life was not actually at risk. Therefore, I urge the Minister to look at this issue again.

My Lords, in some senses I shall repeat what the noble Earl, Lord Howe, has just said, but in a less erudite manner. We have before us a number of important amendments which in many respects overlap, at least in intention if not in words.

I am very grateful to the Government for producing Amendments Nos. 30 and 31, but if I had to choose I would be inclined to vote for Amendments Nos. 14, 15 and 16. I particularly welcome the inclusion of the test of therapeutic benefit in Amendments Nos. 14 and 15 and the special provision for patients under 18, including the requirement for the involvement of a clinician with special training in child and adolescent mental health. The discussions in Committee tipped the balance against the supposition that ECT for this age group should be banned, but its use requires stringent safeguards as provided in Amendment No. 15. Will the Minister reflect further on the overlapping nature of these amendments and produce a composite amendment at Third Reading that would take account of the very positive things contained in all of them?

My Lords, in our debate on ECT in Committee, I raised the question of what, if we are to outlaw the giving of ECT to capably refusing patients, would happen to those patients who currently receive the treatment under such circumstances. This is not an insignificant number of people; it is some hundreds of patients each year.

From the amendments before us, it seems that one way or another there are to be limitations on powers available to impose ECT in the face of a capable patient’s refusal. This does not, however, lead me to form a minority of one in this House and oppose both measures. My experience as chairman of the Mental Health Act Commission, the body which administers second opinions, tells me that clinicians, when considered as a body, do not measure capacity consistently or with anything approaching objectivity, even assuming that such measurement was possible. It is true that they can do quite well in agreeing in research situations, but I am not convinced that on the ground, for instance in assessing the capacity of those patients who have second opinions, they are all using the same yardstick.

Having listened to the debates on these issues so far, I have no fears that patients will suffer through being denied ECT on the technical grounds of their capacity status. I accept that a proportion of those patients currently deemed capacitated are probably not so in reality. I am concerned about how many more incapacitated patients we will see than before, and how much the notion of capacity will be measured in terms of the clinician’s wish to treat, but I do not see that concern as one that would make me oppose this measure. In fact, having a practical capacity threshold for ECT treatment may actually improve clinicians’ understanding and application of capacity testing. Let us see how it works out.

I am bound to say that, of the amendments before us, I prefer the construction of my noble friend Lady Murphy’s amendment for two reasons. First—and this touches on my concern over what will happen to those patients who are given ECT under the present law, despite having refused to give their consent—it is important to tighten the criteria for urgent treatment to stop such patients being suddenly reclassified as urgent cases and treated without the safeguard of a second opinion.

Secondly, I am disappointed that the Government’s amendment leaves out the safeguard of taking second opinions before any person under the age of 18 is given ECT. I support the amendment tabled by the noble Baroness, Lady Murphy, on these grounds. For this reason, I hope that Ministers will allow the noble Baroness, Lady Murphy, and her marshalled troops to push them that one or maybe even two steps further in providing safeguards for ECT.

My Lords, I intervene very briefly, as I always do, to support the amendment tabled by the noble Baroness, Lady Murphy, Amendment No. 15. Before I do that, I thank the Minister for the amendments that she has put forward, which are welcome in an area that is extremely sensitive. I really intervene because many of us speak from personal experience, and I know from mine of patients with mental disorders who consider that the problems from which they suffer 20 years after having had ECT treatment are wholly due to that treatment. That may not be true but it is what they believe, so we have to be extremely cautious about what we can and cannot do with ECT treatment. I just wanted to make that point.

My Lords, we have had an excellent short debate on these matters introduced by the noble Baroness, Lady Murphy. I am very grateful for the warm support—the partially warm support—of noble Lords on these amendments. In Committee, my noble friend Lord Hunt indicated that we would consider further the question of allowing patients subject to compulsion to refuse consent to the use of ECT in non-emergency situations, and we have done just that.

We accept that there is a persuasive argument for providing that a patient should have their refusal respected when they are capable of understanding the nature, purpose and likely effects of being treated with ECT and refuse to consent to that treatment. Your Lordships will note that our new Section 58A is subject to the urgent treatment provision in Section 62 of the Act. I will return to that later.

Amendment No. 15 also proposes a new Section 58A; for ease, I will refer in future to the Government’s new Section 58A, or new Section 58A of Amendment No. 15. I believe that the Government’s amendments achieve all that is in Amendment No. 14, tabled by the noble Baroness, Lady Barker, but with some additional elements. Our amendment is in line with Sections 57 and 58 in that they do not make any distinction based on the age of the patient. With regards to a patient who is capable of understanding the nature, purpose and likely effects of ECT and agrees to being treated with it, we will require the approved clinician in charge of the patient’s treatment to certify that the patient is so capable and has consented to the treatment before it can be given. Similarly, Amendment No. 31 provides that the Government’s new Section 58A will be subject to Section 60.

There is an important difference of language between Amendments Nos. 30 and 14. The latter requires a SOAD to certify not merely that treatment is appropriate but that it is necessary. In practice, there may be little difference. Generally, ECT will not be appropriate except where it can also be said to be necessary, but to make the test one of necessity in all cases would not be welcome to those patients who actually have a preference for it over other methods of treatment. A preference for ECT may be known from previous episodes of treatment or from an advanced statement. The Mental Capacity Act provides for the making of an advanced decision to refuse treatment.

Under the Government’s new Section 58A, a valid and applicable advanced decision to refuse treatment with ECT must be respected where the patient lacks the capacity to consent at the time the treatment is being proposed. If a patient has granted a lasting power of attorney and that power is made in such a way as to allow the attorney to take decisions on the person’s behalf about relevant treatments then, where that attorney refuses consent to the treatment, that refusal must be respected as if the patient had capacity to consent but was refusing to do so. The situation would be the same in the unlikely, but not impossible, circumstance where the Court of Protection appointed a deputy with authority to refuse treatment on the patient’s behalf. It is also the case that the Court of Protection or another court with appropriate jurisdiction—for example, with regard to children—can decide that treatment should not be given to a patient who cannot consent to it. Our provision deals with all these matters expressly and I think that Amendments Nos. 14 and 15 would be more comprehensible if they had done likewise.

We have considered Amendments Nos. 15 and 16, which respectively address additional safeguards in relation to ECT for patients under 18 and limitations on the provision of urgent treatment with ECT. My noble friend Lord Hunt said in Committee that the Government would also consider these matters further. We have given much thought to them, but I must say that there are many complicated issues to which we need to give further thought.

Amendment No. 15 provides for additional safeguards for patients under the age of 18 for whom ECT has been proposed as a treatment for their mental disorder. There are complicated issues of clinical practice and law here and I regret that we still need more time to get this very important aspect of the need for specific safeguards for children who are to be treated with ECT absolutely right before we respond. Some of the complications are illustrated by the noble Baroness’s amendment. We need to be sure that we do not restrict clinical practice to the point where clinicians will be denied a legitimate intervention to protect very ill children for whom ECT is, very exceptionally, the best option. We also need to be careful in deciding to whom we give rights to make decisions about the treatment of a child who cannot consent himself or herself.

Amendment No. 15 would provide that where the patient under 18 was incapable of consenting to ECT, a person with parental authority must first consent to the treatment being given, unless there was a court order that the treatment be given. We are not convinced that the right approach is to provide that a parent must first consent before a SOAD can authorise treatment or, failing that, that a court must make an order for the treatment to go ahead. We accept that a child patient who is incapable of consenting to ECT should be provided for in such a way that a refusal to that treatment can be made on their behalf. I would suggest that the courts already provide the right arena to consider these issues.

I hope that this gives noble Lords a flavour of the very difficult issues with which we are still grappling. I do understand the concerns expressed in relation to children and young people but I cannot agree to the sort of composite amendment suggested by the right reverend Prelate. However, I can assure noble Lords that the Government will return to these matters when the Bill is considered in another place.

The government amendment provides that Section 58A would be subject to Section 62. We will consider the criteria that must be met for urgent treatment with ECT. Amendment No. 16, by amending Section 62, would restrict the provision of ECT to detained patients without a SOAD certificate in urgent situations to those circumstances where it was required immediately to save a patient’s life. In the previous debate in Committee, my noble friend Lord Hunt expressed concern that that was too restrictive. I am concerned that the amendment will prevent treatment of a patient whose need is not yet life saving, but whose condition, as it is, risks their suffering irreversible effects if that treatment is not provided urgently.

I understand the concerns behind the amendment and I share the desire that a provision for the urgent treatment of a patient without a statutory second doctor’s approval should not be used to bypass the usual provisions for a safeguard that requires a capable patient to give consent and requires certification of a second-opinion appointed doctor when the capability of giving consent is lacking. A balance must be struck here. Clinicians should not be denied the ability to provide the right treatment to their patients, especially when that treatment would save the patient’s life or prevent serious deterioration in their condition. Of course I have listened to the views of the noble Baroness, Lady Murphy, but the Government believe that there must be the balance I mentioned. The Government are not convinced that Amendment No. 16 strikes that right balance, but, equally, we see that there are powerful arguments against ECT being permitted in all four cases generally allowed by Section 62.

Amendment No. 85 provides for any certificate that authorises treatment with ECT for a patient who is refusing consent before the enactment to cease to apply on enactment. It cannot be right that a consent-capable patient refusing ECT can still be given ECT compulsorily because the treatment was certified before the law changed.

Noble Lords have made it clear that they consider the requirement that consent be given before ECT is provided to a patient who is capable of giving that consent should fall into that category. In the light of that, we have been persuaded to bring forward these amendments and to pursue consideration of the other issues that I mentioned.

I have listened carefully to the debate. However, we prefer our amendment over Amendment No. 14. Our amendment makes clear the circumstances in which a refusal can be effected for a patient who lacks capacity to consent to ECT. Further, it provides for additional treatments to require the consent of patients who are capable of giving that consent and safeguards for the treatment of patients who cannot.

Before I end, I inform noble Lords that in Committee we debated an amendment that would have provided that all clinics where ECT is administered would have to comply with the standards set by the Royal College of Psychiatrists’ ECT accreditation scheme. My noble friend Lord Hunt advised your Lordships that he would make the Healthcare Commission aware of the debate and that he would arrange for officials to discuss with the royal college opportunities for encouraging more providers to put themselves forward for that scheme. Initial discussions have already taken place, and the Healthcare Commission’s head of mental health policy, Anthony Deery, and the director of the royal college’s research unit, Dr Paul Lelliott, along with Department of Health officials, will be meeting shortly to work through some proposals that the Royal College of Psychiatrists has put forward since Committee.

The Government have proposed an alternative to Amendment No. 14 and, for the reasons that I have outlined, I ask the noble Baroness to consider withdrawing her amendment.

My Lords, I thank the Minister for that response, which, in some ways, was almost more than I was looking for. She reassures me that the Government are still grappling with the issue of ECT and children, which is still one of our big concerns. Although we welcome the Government’s amendment for capacitous adults, which seems, to me at any rate, to meet most of our concerns about them, we would like to look at Hansard more carefully. We are grateful that the Healthcare Commission will look at accreditation being given by the Royal College of Psychiatrists to units which are administering ECT. That is very welcome. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 15 and 16 not moved.]

moved Amendment No. 17:

My Lords, it seems to me that the essential point of these amendments is to ensure that when a patient’s past or present wishes about treatment are not respected for whatever reason, the justification for this must be recorded by the decision-maker.

This is a modest proposal in terms of legal duties, but I believe that it would have a significant and beneficial effect in the way in which patients’ wishes are addressed by services. It is, thanks to fairly recent case law, a requirement that any second-opinion doctor authorising treatment without consent must justify his or her decision in writing. This amendment would extend that requirement to other decision-makers who may be overriding patient wishes.

In my view, and that of the courts, when the matter is brought to their attention, recording reasons is a very basic requirement of responsible and justifiable decision-making, where those decisions may interfere, or potentially interfere, with fundamental human rights. Some exemplary services may already make and record their decisions in such a way that would meet the statutory requirement that this amendment puts forward. Many unfortunately do not. It is on that basis that I support the amendment.

My Lords, of the two amendments in this group, Amendment No. 72 is rather stronger than Amendment No. 17. Both give expression to the wishes of patients to have their voices heard. Amendment No. 72 would give at least part-equivalence to the Mental Capacity Act, with patients being able to say what they would like for themselves in the future and what treatments they would refuse.

I ask the Minister how these amendments fit into the Government’s proposed new Section 31A for the ECT safeguards. It seems that the Government have, in a sense, accepted the role of advance decisions in that. That is exceedingly important, particularly as we know from studies in the United States that in advance decisions—when patients, in between episodes of illness and having full capacity, document which treatments they do not want—80 per cent express an opinion on the future use of ECT.

My Lords, I support the amendment from a slightly different angle. The focus has tended to be on the requirement to note what treatment the patient wants when the treating clinician may think differently, ensuring that the patient’s views are expressed and protected.

There is another element. Sometimes patients can request all sorts of treatment, repeatedly, over quite a short period. The clinician is almost assaulted with a range of requests. Every time they see the patient, they will have a different set of requests to change the drugs or do something else. It is important that these matters are recorded so that anyone coming back to look at them understands something of the difficulty of interaction, perhaps because of disturbance of the patient’s mind or personality.

I am reminded of interaction that we had with the police service over a long time in Northern Ireland. We were trying to persuade them that it would be helpful for everybody concerned to videotape all interviews, and that it was in their interests as well as those of the interviewees because they would be protected when allegations were made against them. It took a long time, but they eventually agreed to audio taping and, eventually, to videotaping. When everyone looked back, they agreed that far fewer allegations were subsequently made, because there was no point in making allegations with no basis.

That is not an alternative to the arguments made but it is another side to them. For colleagues to realise that if they were to note some things—even if they think they are ill advised, unhelpful or tedious—it would protect them. It encourages them to think about the thing, and helps anyone coming in afterwards to give a second opinion or whatever to realise some of the difficulties and struggle in the clinical relationship. For that reason, as well as those already given, I support the amendment.

My Lords, this has been an interesting debate, repeating much of the argument made in Committee. The amendments are asking practitioners, be they doctors or approved clinicians from other disciplines, to do what they ought to do as a matter of good practice. That is essentially why the Government do not think that this provision should be in the Bill.

It is surely axiomatic that clinicians should listen to patients and take careful account of their wishes, preferences and experience. The clinician who does not recognise that—and that patients, even those who are seriously ill, are very often experts in their own health—is missing a big trick. The fact that patients may be liable to compulsory treatment under the Act in no way diminishes the importance of encouraging them to express their wishes and engage in designing their own treatment, nor the imperative to pay close attention to what they say. Treatment without consent does not, and must not, mean treatment without regard to the patient’s views.

My Lords, I thank noble Lords who have spoken in the debate. I am grateful to the Minister, despite the fact that his reply is not entirely unexpected, but I thank him for his backing, at least of the sentiments underlying my proposals.

I think that there should be sanctions against infringement of this proposal, were it to be incorporated in the Bill. What those sanctions might be would be for another discussion. As I mentioned earlier, we have not gone nearly far enough with the code of practice; something has to be done, if not on the face—

My Lords, this is a draft code of practice. Perhaps I should have said that to the noble Baroness, Lady Barker, on the first amendment today on principles. Clearly, the code will be informed by the debates that take place in your Lordships’ House, in the other place and outside. It is a living, breathing document which is capable of improvement; I have no doubt that it will be improved.

My Lords, the Minister makes a very helpful observation. I am sure that we are all encouraged by it. We will all take enormous interest in how the code is put together.

My Lords, the eventual new code has to be laid before Parliament, and I would not be at all surprised if we had a debate about it.

My Lords, I think that that is my cue for withdrawing the amendment in anticipation of such a debate. Once again, I thank noble Lords, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 [Amendments to Part 2 of 1983 Act]:

[Amendments Nos. 18 and 19 not moved.]

Clause 14 [Amendments to other provisions of 1983 Act]:

moved Amendment No. 20:

My Lords, the noble Lord, Lord Patel of Bradford, has returned to this topic with his usual enthusiasm, for which we are all grateful. In Committee, he acknowledged that the Government have good intentions but said that there remain serious problems in providing patients with robust and appropriate care plans. Clearly, those problems persist.

We wholeheartedly agree that care planning must be carefully and comprehensively undertaken for every patient, whether voluntary, detained or subject to supervised community treatment. Each care package must be tailored to each individual, taking into account their particular needs and circumstances. That is a vital part of their treatment. As the noble Lord, Lord Patel, said, it is a cornerstone, a fundamental component of good mental health care.

We also agreed with the noble Lord when he said on Second Reading that the care programme approach and its equivalents for older people, children and adolescents should ensure that care planning takes place. We acknowledged then and we do now that CPA is not always consistently applied. Far from it. We drew attention to our current review of CPA, which is examining how patients with the most crucial needs can be targeted, how the process can be streamlined and how patients can be given more control over their care and treatment. The public consultation is due to end today.

I have brought to the attention of the review team the record of this House’s debates on the matter and I promise to bring to its attention our debate this evening. There is still much for the review to do as it begins to consider the representations made. I am more than happy to arrange for the review team to write to interested Peers to offer to meet them to discuss the progress of the review and to outline how it will be taken forward before it reports in the autumn.

Although our debates provide the review with invaluable insights, many Peers may want to take that extra opportunity. We will of course carefully consider the results of the review to see what stakeholders want, and we will see what improvements we can make to CPA and therefore to care planning for all relevant patients, including those under SCTs and those who are detained.

Similarly, in Wales, the Assembly Government have reviewed the operation of CPA and have recently issued a report with recommendations to service commissioners and providers in Wales. It is the implementation of the reviews, not statutory requirements, which we believe will improve care planning for that patient group.

Although acknowledging the importance of care planning, we do not agree with giving statutory force to it, as proposed under the amendment. That is not to say that we think that the amendment is meaningless—far from it. However, there are practical problems in enshrining care planning in legislation, problems that we began to appreciate when we got to grips with the detailed practical implications of the proposals that we included in the 2004 draft Mental Health Bill. I fear that there will always be tensions between the need to establish clear legal parameters, whether in primary or secondary legislation, and leaving the flexibility necessary to ensure that care plans are a positively helpful clinical tool. Care planning is such an individual process. The quality of application is the issue, and it must be addressed by improvements in practice. In this Bill, we do not need to make the care plan serve a legal purpose as well as its primary clinical one. That is why we have opted for guidance both in the code of practice for England and, I am told, in the code of practice planned for Wales.

The proof of care planning is measured in patient outcomes and experience. The best way to improve quality is through the current reviews and their effective implementation and through the codes of practice. I therefore invite the noble Lord to work with us on the code of practice and to withdraw his amendment.

My Lords, I thank the Minister for her response. Obviously I am disappointed that she does not think that we could put this into legislation, but I quite understand the reasons that she has provided. I especially look forward to the review, and the Mental Health Act Commission and I will be very happy to work alongside Ministers and officials to strengthen the code of practice in this area. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 [Approved mental health professionals]:

moved Amendment No. 21:

My Lords, I thank the noble Baroness for her helpful introduction to this series of amendments. I want to ask two questions. First, I go back to a point I raised in Committee. Is it envisaged that an AMHP can be contracted by a social services department from a trust and will the question of conflict of interest be dealt with in these regulations or in others? Secondly, given that AMHPs will come from a range of disciplines, including psychology, psychotherapy, occupational therapy and so forth, is it envisaged that the General Social Care Council will not oversee their approval but that other professional bodies will do so? Alternatively, will the approval of all AMHPs come under one body, the General Social Care Council, even though we know that that body may not continue to perform that function in the future? I am confused about whether one body or more than one body will do this, or is the noble Baroness outlining a transitional arrangement? That is not the clearest of questions and I am sorry for that.

My Lords, AMHPs will be independent professionals acting on behalf of LSSAs. In their training that independence will be continually stressed. On the responsible bodies, I understand that the GSCC will regulate the training for all the professionals, and in Wales the CCW will do so. There will be just the one body.

My Lords, that is very helpful. I thank the noble Baroness.

On Question, amendment agreed to.

moved Amendments Nos. 22 to 24:

My Lords, I beg to move that consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.

House adjourned at 10.22 pm.