 House of Commons |
Session 2006 - 07 Publications on the internet General Committee Debates Mental Health |
Mental Health Bill [Lords] |
The Committee consisted of the following Members:John
Benger, Committee
Clerk
†
attended the Committee
Public Bill CommitteeThursday 10 May 2007(Afternoon)[Ann Winterton in the Chair]Mental Health Bill1.30
pm
The
Chairman:
Before we begin, will hon. Members please
ensure, as I have, that their mobile phones are either switched off or
on silent
mode?
Clause 31Section
30: supplemental
Question proposed
[this d
ay
]
,That the clause stand part
of the
Bill.
Question
again
proposed.
The
Chairman:
With this it will be convenient to discuss the
following: New clause 4—Advance decisions and advance
statements
—
‘(1)
The 1983 Act is amended as
follows.
(2) After section 76
(visiting and examination of patients)
insert—
“76A
Advance decisions and advance
statements
(1) In this
Act—
(a) reference to an
advance decision is to an advance decision (within the meaning of the
Mental Capacity Act 2005(c.9)) made by the patient,
and
(b) “valid and
applicable” in relation to such a decision means valid and
applicable to the treatment in question in accordance with section 25
of that Act.
(2) If an advance
decision is found to be valid and applicable to the treatment regulated
by Part 4 of the 1983 Act, the person providing the treatment shall
have regard to the advance
decision.
(3) Where a decision
is made which is inconsistent with a valid and applicable advance
decision by the person providing treatment, that person must comply
with the requirements set out in subsection (4)
below.
(4) Those requirements
are—
(a) the
circumstances in which treatment was provided and the reason for it
should be recorded in writing;
and
(b) a copy of that record
should be supplied to
(i) the
patient
(ii) the
patient’s nearest relative and another copy placed in the
patients medical notes.
(5) A
person performing a function under this Act shall consider, so far as
reasonably ascertainable the patient’s past and present wishes
and feelings (and in particular any relevant written statement made by
him when he had
capacity.”.
(3) In
section 63 (treatment not requiring consent), at the end,
insert—
“(2)
When deciding what treatment to give, the approved clinician in charge
of the treatment shall consider so far as reasonably ascertainable the
patient’s past and present wishes and feelings (and in
particular any relevant written statement made by him when he had
capacity), 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.”.’.
New clause
16—Treatment requiring consent (administration of
medicine)
—
‘(1)
Section 58 of the 1983 Act is amended as
follows.
(2) In subsection
(1)(b) leave out “three months” and insert “two
months”.’.
New
clause 25—Advance
statements
—
‘(1)
The 1983 Act is amended as
follows.
(2) After section 142
insert—
“142A
Advance statements
(1) In this
section ‘advance statement’ means a written statement
made by a patient
(‘P’)—
(a)
when P has reached the age of 18 and has the capacity to make such a
statement, and
(b) deposited
with the person (‘N’) who is primarily responsible for
P’s care.
(2) An advance
statement may
contain—
(a) information
about P, and
(b) directions as
to the persons to whom that information (or specified pieces of
information) is to be communicated if P becomes mentally
disordered.
(3) N
must—
(a) have regard to
the advance statement;
(b)
ensure that any other person who is concerned with the care of P is
aware of the advance
statement.
(4) P
may—
(a) withdraw an
advance statement, or
(b)
replace it with an amended advance
statement,
at any time when P
has the capacity to do
so.”.’.
Sandra
Gidley (Romsey) (LD): Before lunch I was outlining the
ways in which advance directives could be used. In the case of
conditions such as Alzheimer’s disease or other degenerative
illnesses, a decision is often made not to have treatment. However, in
the mental health arena there is a good case to be made that people who
are feeling well should be able to state a preference for the treatment
that they feel has most benefited them in the past. That decision can
and I suggest should be made in consultation with the clinician, and it
is helpful to the clinicians themselves in providing something for them
to fall back on.
Patients who
currently fall within the scope of mental health legislation are not
afforded the same rights as those who are dealt with under the Mental
Capacity Act 2005, which seems somewhat discriminatory. The nature of a
mental condition means that there is frequently a lack of trust between
patients and clinicians, so anything we can do to help build bonds and
bridges is to be welcomed. That would also allow patients to feel much
more in control of their lives and their
health.
The
system that we are advocating already works in some European countries.
Even in the UK, a research-based review found that people with severe
and enduring mental health problems who were subject to compulsory
treatment were able to draw up realistic and logical advance
directives, and did not use them as a means of refusing all possible
future treatment, as some mental health professionals had feared. It is
important to bear that in mind. Interestingly, the study also said that
there is no evidence that improved outcomes result from advance
decision making, although the issue is not one of outcomes; it is about
the ability of the patient to feel confident and secure in any future
treatment.
Similar
legislation exists in some European countries. The Scottish
legislation, which we have discussed extensively in this Committee,
specifies that patients can refuse treatment or specify a treatment
that they have found helpful in the past. In another place, Lord
Carlile expressed disappointment that so many recommendations of the
joint scrutiny Committee had been dismissed by the Government. He noted
that that Committee had recommended that the Government introduce
legislation that would enable people to make advance statements and to
record advance decisions—particularly if there was a treatment
that they would not wish to receive. So there is a strong drive for the
Bill to include something along those lines.
New clause 4 has three aims.
First, it defines the nature and function of advance decisions and
advance statements. Secondly, it outlines the procedure to be followed
if decisions are taken that are inconsistent with an
individual’s wishes as expressed in an advance directive.
Thirdly, it defines how a person’s wishes and feelings about
their care treatment should be taken into account. Considering the
Government’s correct and laudable desire for patients to be more
involved in their health care, I am struggling to see what the problem
is.
Advance
directives are documents usually drawn up by individuals when they are
well. They are generally binding under common law, but they can be
overridden if the person is subject to compulsory treatment under the
Mental Health Act 1983. That seems a strange anomaly. Advance
statements give people the opportunity to state positively their wishes
on care and treatment in case they lose the ability to make decisions
for themselves at some time in the future. As I have pointed out, that
is helpful to the clinicians themselves and provides opportunities for
patients and physicians to discuss treatment in more
detail.
It has been
said that such provisions could be included in the code of practice,
but they are on such a fundamental underlying principle that they
should be in the Bill. Codes of practice are subject to change and the
weight given to them is not always as great as it should be. It would
be helpful if the Minister could consider the matter in more
detail.
I have
mentioned new clause 16, which we generally support, and to save
time—we are under a little pressure now—I will not go
into detail on
it.
Angela
Browning (Tiverton and Honiton) (Con): I support what the
hon. Lady has outlined. Those of us who served on the scrutiny
Committee and the Standing Committee on the Mental Capacity Act 2005
had a lot of discussion about how the measures would interact with
patients with mental disorders and mental health problems. On capacity,
it was particularly noted that in the relevant group of patients there
is often a pattern of capacity breaking down. With some mental
disorders there is a cyclical nature to that, which means that advance
statements would have great relevance to the patient and give them
confidence in a down period, for example, that they had made their
views known while they had full capacity, and that those views would be
taken into
account.
Another
mental health issue that is perhaps not quite so applicable to physical
health matters is that sometimes people lose capacity in some areas of
their
lives, but it might be judged that they remain able to make considered
decisions in other parts of their lives. There are a lot of grey areas,
and considering the way in which people’s capacity can
deteriorate if they are mentally ill, I think that advance decisions
would benefit people with mental disorders, particularly lifelong
disorders, as many
are.
I
hope that I will not be out of order in discussing new clause 25. The
hon. Member for Bridgend, who tabled it, might want to respond to my
point. The person with whom the patient, referred to in the new clause
as “P”, deposits their advance statement might change.
There might be circumstances in which no obvious person is identifiable
as
“primarily
responsible for P’s
care.”
Sometimes that is
quite difficult.
I
have just written to the Minister, not apropos mental health, but about
a constituency case involving somebody with a learning disability who,
because of his communication disorder, has had great difficulty in
getting the correct treatment as a hospital in-patient for his physical
problems. I seek some guidance from the Minister; no doubt it will come
through, and I shall get a letter back. There are practical
complications when one tries to put some things into practice. I hope
that we would not be too rigid about saying “It must be this
particular person”, because in some cases that person will not
be
evident.
Mrs.
Madeleine Moon (Bridgend) (Lab): New clause 25,
which stands in my name, was deliberately drawn up so as to be as open
as possible and to allow N to be defined by the patient themselves. N
is defined as the person primarily responsible for P’s care, and
the new clause allows flexibility for that person to be changed if
there is a wish for that to
happen.
Angela
Browning:
I understand the need to make changes. Sometimes
the person will be presenting the piece of paper—we must assume
that some form of written communication is involved—and
referring the matter to the clinician at a time when important
decisions are needed. The hon. Lady has obviously thought things
through, but I want to think about other scenarios. In a perfect world,
everybody would have another person to represent them, but I deal with
an awful lot of cases involving elderly people who have lost capacity
and for whom there is absolutely nobody. I want at least some
flexibility, because if there is nobody there, N might have to be
somebody who had not previously regarded themselves as a spokesman for
the
patient.
I
will give an example to the Committee and the hon. Lady of why I am
thinking along such lines. An elderly person who had lost capacity
through dementia was moved from one hospital to another. She had not
made an advance statement. The only person left in her life who could
advocate on her behalf about an inappropriate placement turned out to
be her next-door neighbour, who was the last person left in the world
who knew her wishes, preferences and needs. We are talking about a
specific piece of paper, but sometimes the person who takes
responsibility for presenting it or for making somebody’s views
known is not whom one might have thought it would be. I want some
flexibility, so that somebody who does know the person being treated is
listened to.
Mrs.
Moon:
We are looking to give that flexibility. Under new
clause 25, the person taking responsibility for the piece of paper can
be whomever P chooses. The patient can, if they so wish, lodge it with
a professional, such as their community psychiatric nurse, next-door
neighbour or even a professional carer. The important thing is that the
matter is lodged and that the information is available, and also that
the specified person takes on responsibility for taking things forward
once the patient is in hospital. That will ensure that the information
is available and is
shared.
Angela
Browning:
I am grateful to the hon. Lady. As time goes by,
if such an arrangement becomes common practice, as I hope it will,
there might be other ways of ensuring at a given point in time that
clinicians are well aware of somebody’s requests. People already
carry all sorts of things around with them; for example, they may do so
to indicate that they have an allergy. I carry around with me a
statement that I am allergic to penicillin, in case I am an emergency
admission and that is not known. There are other ways of dealing with
such concerns. I would hope that, in time, the patients in question
could carry such information. That will probably be the answer to
providing timely information, particularly when emergency decisions are
being made.
I hope
that those who served on the Committee dealing with the Mental Capacity
Bill will agree that, when we introduced the legislation, the intention
was that the further measures would help and assist in such matters. In
particular, as in this part of the Bill, that includes advance
statements and decisions for those with a mental disorder or those who
come into the mental health
services.
1.45
pm
Dr.
Brian Iddon (Bolton, South-East) (Lab): My hon. Friend the
Member for Stafford laid a large elephant trap for me the other day on
the matter of advance statements. I fell right into it, and you
correctly chastised me, Mrs. Winterton. I will make today
some of the statements that I was going to make
then.
As I said the
other day, I have a natural objection to advance statements, because I
think that they have some dangers. I explained those during the
detailed debate on Second Reading of the Mental Capacity Bill. My first
question to my right hon. Friend the Minister is this. Against my
wishes, we included advance statements in that legislation. Does she
feel that we need to go over the same ground again and include a
similar, if not identical, clause in this Bill? As I see it—I
might be wrong—everything that hon. Members and hon. Friends are
trying to do today has already been done. Will she comment on
that?
I have always
believed, and I think that the people who push advance decisions or
directives also believe—I still call the organisation that has
promoted them more than any other the Voluntary Euthanasia Society,
although today it is called Dignity in Dying—that if someone
makes an advance statement fairly early in life, they ought to renew
it, just as we renew our wills, according to current circumstances.
Unfortunately, people forget that they have made wills and advance
statements, which stay in a drawer getting dusty until somebody has
cause to bring them to the
surface. They may be well out of date by that point, for various
reasons. People change their minds as they get older and as their
circumstances change. They might become richer or poorer, or they might
learn to live with ailments that they never thought they could live
with when they were younger. I believe that if people make advance
statements, they really ought to look at them from time to
time.
That brings
us into serious difficulty. Some people, tragically, suffer from mental
illness, some of them intermittently but some for considerable periods
throughout their lifetime. If they make an advance directive, they must
have mental capacity when they make it, or it is redundant in law and
in the medical service. Nobody, I hope, will enact an advance statement
that can be proved to have been made when the person was under duress
or peer pressure from somebody who insisted on their making it,
particularly if they were mentally ill or without mental capacity when
they made it. In the area of mental health, that creates severe
difficulties with advance
statements.
Let me
turn to one of the things that worries me most. I think that we are
going to see some big breakthroughs in mental health in the next few
years. The brain is one of the unknown frontiers. Many people are
researching the mechanisms of the brain—how it works, and
particularly how drugs interact with it. I remember when chlorpromazine
and the first generation of drugs of that kind allowed us to bring
people out of the great institutions where straitjackets and padded
cells were used. Those drugs were revolutionary in their time and
helped us to bring people back into the community.
We are now into the second and
perhaps even the third generation of medicines for people who are
mentally ill. The progress in mental health treatment will, hopefully,
accelerate. I hope that it will, and I believe that it will, because of
stem cells. Alzheimer’s disease has been mentioned, and there is
also Parkinson’s disease and other degenerative diseases of the
neurological system. There is great hope for many that advances in stem
cell research will bring us treatments for
Alzheimer’s.
If
someone said that they did not want this or that treatment and they
then became mentally incapacitated, they would not be able to change
that advance directive even if a great advance in medical health came
along. As far as I can see, that person would be stuck with the advance
directive that they made when they were not ill or when they were much
younger. That worries me. People who are thinking of making advance
directives, particularly in the area of clinical practice, should be
very careful and take advice. Most of us are ignorant about mental
health treatments because we have never been involved with the mental
health services and we just do not know what they can do for us and
what advances have been
made.
Finally,
the hon. Member for Tiverton and Honiton referred to the problem of
communication. When we discussed the Mental Incapacity Bill, we went to
great lengths to seek assurances from Ministers that if someone became
incapacitated—through a stroke for example—and was not
able to communicate as well as we can in this Room, mechanisms and
instruments would be made available, so that they could communicate
without speech,
or even in paralysis, to the clinicians around them. The hon. Lady made
a very good point.
I
have always been against advance statements because of the dangers that
exist. I do not say that people should not have the freedom to make
those statements, but when they make them they should take into
consideration all those points.
Mrs.
Moon:
There is quite an onus on the Committee to
recognise—and I think that it has been recognised throughout the
debates—that there have been huge changes in availability of
mental health services and medication, to which my hon. Friend the
Member for Bolton, South-East referred. We have also been very careful
to ensure that we do not increase fear among mental health service
users. There have been many changes since 1984. However, one of the
things that has not changed is anxiety around what happens at the time
of compulsion. It is a time of extreme stress and fear. One of the
things that new clause 25 attempts to do is to allow someone with a
history of mental health problems to feel that their voice will be
heard at a time when they are least able to express their opinion and
say who they are as an individual and what they want to happen. During
the debates, I have been particularly impressed by the willingness of
my right hon. Friend the Minister to recognise the voice of the patient
and, in particular, the voice of the carer. New clause 25 aims to
support those two groups of people at a time of great
difficulty.
When we
are admitted to hospital, one of the first things that happens is that
a nurse sits at the side of our bed and takes down basic data. She may
say, “Who do you want us to talk to? What do you want to eat?
What medication are you allergic to?” In fact, she will raise
all the things that the hon. Member for Tiverton and Honiton referred
to. If we are able to communicate, we might say, “We are
allergic to nuts.” I am a vegetarian, so I would say,
“Please do not give me any meat.” It is critical
information. One could say, “I had this medication and I had an
allergic reaction to it, so I should not have it again.” We
might say, “This is a medication that I had in the past. I found
it useful. If I tell you that I do not want it, please do not listen to
me because I found it useful in the past.”
Many of the submissions to the
Committee, including MH49, MH14 and MH26, from SANE, the Mental Health
Foundation and Rethink respectively, and in particular MH11 from the
Princess Royal Trust for Carers reiterate the concerns of carers,
family and friends that, at a time of great crisis, when a person for
whom they care and about whom they are most knowledgeable is admitted
to hospital, they find it difficult to have their voices heard and to
access information.
Some mental health service
users say that they feel a loss of identity and that their wishes are
ignored, which leads to a lack of trust between them and the medical
practitioners who are there to support them. It is often said that
information is power, but sharing information is also about partnership
and inclusiveness. Document MH10, submitted by the
Royal College of Psychiatrists, states that
“outcomes are optimised when
patients engage early, when they take a full and active role in their
treatment and have trust in their psychiatrist or other
professional”.
Partnership and shared
decisions make for improved outcomes. New clause 25 is about allowing
patients to engage early and to take an active role in building trust
with the professionals on whom they rely at a critical point in their
life. It would also provide the shared decision making that will be
likely to improve outcomes.
I said
earlier that a number of carers have talked to me about feeling
excluded. I met with Mental Health Matters in my constituency and with
people from local carers centres. They all said that they feel that
they would like their voices to be heard. The new clause is about
specific pieces of information. It does not define what information
should be shared, because that should be what an individual thinks is
important—it is their information. I understand the fears and
anxieties of tying practitioners to following patients’ wishes
when they are inappropriate, but the measure stipulates that they
“have regard to”, or are aware of, the “advance
statement”. There is no legal binding to the statement, but
there should be regard to it. The statement may be withdrawn or
replaced at any time, as circumstances change.
More
importantly, the statement would allow a person’s life to
continue at a time when they have suffered a loss of capacity. In an
advance statement, a patient can nominate the person who they want to
pay their bills, or water their plants. It can deal with small issues
such as the care of pets. The statement would deal with the important
things that allow people to survive, so that their life does not go on
hold. Hopefully, it would also mean that if a person so wishes,
information could be shared with employers, so that they are no longer
excluded from knowing what a patient wants them to know about their
recovery and future.
The statement would be a
living document; it would be flexible and could be changed. It is based
on having regard to rather than compulsion. It is about looking at a
new way in which patients, professionals and carers can communicate, in
a partnership that allows an open dialogue. Hopefully, it will improve
outcomes.
Tim
Loughton (East Worthing and Shoreham) (Con): May I welcome
you back to the Chair, Lady Winterton? May I also change the subject,
because I should like to speak to new clause 16, which, slightly oddly,
has been placed in this
group?
New clause 16
would amend section 58 of the 1983 Act by reducing the
requirement relating to medication from three to two months. Given the
serious effects of medication and the possibility of patients being
given too high a dose without their consent, or even despite their
active opposition to such medication, this is too important a safeguard
to be jettisoned. The Joint Committee on Human Rights expressed its
serious concern about the issue in its recent report and called for a
change in the
law.
2
pm
Under the
amended Act, the test that the SOAD must apply is changed
from
“having regard to
the likelihood of its alleviating or preventing a deterioration of his
condition, the treatment should be
given”
to
“it
is appropriate for treatment to be given to a patient if the treatment
is appropriate in his case, taking account of the nature
and degree of the mental disorder from which he is suffering and all
other circumstances of the
case”.
In
deciding on treatment, the SOAD should consider the patient’s
observations on his or her illness, its impact on his or her
presentation, behaviour and relationships and the current treatment,
including any side-effects. The views of the responsible clinician and
other members of the clinical team are also relevant. Many physical
side-effects can result from taking medication—often strong
chemicals—including weight gain, diabetes, impotence, disabling
movement disorders, lethargy and feeling drugged up all the
time. A case has been made, in other submissions to us, that people who
are subject to treatment under sectioning should have more regular
physical health checks than other people, simply because of the
knock-on effect that their medication for the mental health condition
is having.
The Act
gives an exceptional power to override the choice of those patients who
retain the capacity to make their own choices. That is not available
for treatment for physical illness. Although the responsible clinician
should seek the consent of the patient and listen to his or her views,
that often does not occur. As the Mental Health Act Commission has
reported,
“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”.
The
commission lists among its 10 common problems with the administration
of the
treatment:
“No
record of discussion with patient regarding proposed
treatment...No record of assessment of patient's capacity to
consent to treatment... Patients telling visiting Commissioners
that they are not happy taking their medication... when this is
covered under a Form 38 certifying their informed
consent”,
and
so on. All those factors contribute to the case for careful and prompt
oversight of patients’ medication, which is what the new clause
is
about.
Three
months is too long a time for patients to be treated without consent,
or with a lack of capacity to consent to treatment that may be
causing them physical harm. There were arguments in another place over
the length of time that the period should be limited to, if it were
reduced from three months. The Government objected to the possibility
of 28 days, on the basis that various medication plans were still being
formalised at that stage. However, I do not necessarily take that as
read. That is why we have come up with the compromise, having listened
to the argument in another place, of reducing the period from three
months to two.
It is
interesting to note some of the statistics. In 2004-05, 18 per cent. of
patients had their plans changed as a result of SOAD interventions.
Responsible medical officers know that their treatment decisions can be
subject to a second opinion. The SOAD provides a check on the RMOs'
practice. The oversight provided by the second opinion ensures that
RMOs give careful thought to their decisions. The 1983 Act
provides a safeguard for medication beyond a three-month period. In
recognition of the fact that three months is a lengthy period, the Act
introduced a power for the Secretary of State to reduce the period, by
order, from three months, but that has not occurred. Under the 2004
draft Mental Health Bill, about which
we have heard much, a tribunal would have authorised medication by the
end of 28 days.
The
Mental Health Act Commission has
stated:
“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
that are outside of product guidelines and recommendations 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.”
During a debate on this part
of the Bill in another place, Lord Patel of Bradford, chairman of the
Mental Health Act Commission,
said:
“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.”—[Official Report, House of
Lords, 15 January 2007; Vol. 688, c.
492.]
The Government’s
main argument in favour of a three-month period before a second opinion
being needed is that it is required for the person’s condition
to stabilise. The Mental Health Alliance does not accept that argument
and the Government did not in the 2004 draft Bill, where only 28 days
was deemed necessary before the review of a care plan by the new
tribunal.
Will
the Minister tell us what happened between the introduction of the
draft Bill and this Bill for the Government to go forward with the
requirement for checks and balances on a person’s medication?
Newer medications are available and the guidance on medication is
explicit on the time required for it to be effective. In almost all
cases, that amounts to a
fortnight.
In its
recent report on the Mental Health Bill, the Joint Committee on Human
Rights
stated:
“Although
an immediate second opinion is required for any administration of
Electro Convulsive Therapy (ECT), in relation to medicines for mental
disorder, the patient does not become entitled to a second opinion
until three months have elapsed from the first time when medicine was
administered during that period of detention... There is now a
recognition that the effects of some psychiatric drugs may be as
unacceptable to patients as
ECT”.
We considered that
point in the pre-legislative scrutiny Committee and our report
stated:
“Three
months is a long time to be in receipt of compulsory psychiatric
treatment without the opportunity for review and supervision of the
responsible clinician’s decision to impose that treatment, and
we consider it is doubtful whether the Government’s obligation
under Article 8 to provide effective supervision and review of
treatment without consent is discharged by such a long waiting
time”.
New
clause 16 is a useful addition to the Bill because the Government have
not made the case for why the delay should be three months. In three
months, a lot of harm could be done to a patient on the wrong level or
type of medication. The Government acknowledged that by stipulating 28
days in the draft
Bill.
In the spirit
of compromise and positive engagement that we have brought to bear on
the Committee, the new clause is helpful and constructive in aiming to
reduce the time span from three months to two. It is a compromise
between what is there now and what the Government originally thought
practical. On that
basis, I see no reason why the Minister should not jump up and say,
“Thank you very much, we will accept the new
clause.”
Dr.
John Pugh (Southport) (LD): I did not intend to speak, but
I was struck by what the hon. Member for East Worthing and Shoreham
said. A lot of this issue rests on the empirical claim, which the
Minister can either dispute or not, that psychoactive drugs do the
business, as it were, within two weeks. If that is the case, three
months is a ridiculous period for assessment. However, we need to know
whether it is the
case.
I will raise
another issue now, rather than make an intervention later. What is the
process? How long does it take for a person on a scheme of medication,
if only for two weeks, to be taken off it? What provision will be made
for their care while they are being taken off medication? There is an
issue with drugs such as Prozac if a person takes them for a short
period and then suddenly stops. That is true not only for serious
ailments that people would be sectioned for, but for obsessive
compulsive disorder and so on. The person will become worse because the
drug will have had some, but not the full effect. We are in
pharmacological territory. We can argue about the merits of the
particular legislative proposition in front of us, but the matter rests
ultimately on clear, pharmacological distinctions and the advice that
the Minister may or may not be receiving. I should welcome an
indication of that advice.
The
Chairman:
Before I call the Minister, perhaps it would be
helpful if I suggested that those who have tabled and spoken to new
clauses might, depending on the Minister’s reply, of course,
indicate whether they wish to have a Division on them
later.
The
Minister of State, Department of Health (Ms Rosie
Winterton):
I welcome you back to the Chair, Lady
Winterton.
I am a
little worried that the hon. Member for Southport occasionally puts the
onus on me to make a clinical judgment, which I am incapable of doing.
I hope that he will forgive me if I do not completely answer all his
questions, unless something miraculous arrives about the
pharmacological effects and how long Prozac takes to work. I am not an
expert on that.
We
have had a good debate on the important issues of recording patient
requests and advance directives. I completely understand why those on
the Labour and Opposition Benches are anxious to explore such
issues.
New
clauses 4 and 25 both deal with the important issue of patient
involvement, particularly when a patient lacks the capacity fully to
engage in consultation at the time a decision is being made, or when
they would otherwise want specific people to know about their
circumstances. Hon. Members are so concerned about the matter because
we are discussing the sensitive issue of compulsion and how to marry
together compulsory treatment with being able to take into account
patients’ wishes. It is vital that proper patient involvement
takes place. There is a valuable role for advance statements of wishes.
However, accepting the new clause as it is worded is not the right
approach. The fact that patients are liable to compulsory treatment
does not in any way
diminish the importance of encouraging them to express their wishes and
engage in designing their own treatment. Indeed, that is probably a
helpful way in which to get people on the road to recovery, as is 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. We must all be clear
about that.
It is
also fundamental that, when patients have made their views known in
advance, those views should be treated with the same respect as if the
patient were giving their view at the time. It is important that
decisions and the basis on which they were arrived at are recorded. We
would regard that as good practice. However, it is the wrong approach
to put such detail in the Bill, particularly the extra procedural
requirements that go with
it.
2.15
pm
The Act
contains many requirements to make proper records where decisions are
taken that restrict patients’ freedom in the interest of their
health or that of others, but I hope I can illustrate why the
amendments are not the right approach.
New clause 4
says that advance decisions to refuse treatment must be taken into
account. We are not disputing that, but adding a requirement in
legislation to make a separate record and send it to the patient and
their nearest relative would contrast starkly with the fact that
treatment given against patients’ wishes expressed at the time
is not recorded in that way. Because we are dealing with compulsory
treatment, we would be making a big distinction between an individual
who is sitting there saying, “I don’t want this,”
while a clinician says, “Well, that is what is going to
happen,” and an individual with an advance decision saying the
same thing. We would be making a distinction by recording the decision
to treat and giving the record to the patient and their nearest
relative.
Creating a
statutory obligation to record why a patient detained under the Mental
Health Act has not been given the treatment that the patient requested
would also differentiate it from other legislation dealing with
treatment against patients’ requests. In no other field have we
said that an individual can request treatment and be given an
explanation why they cannot have
it.
Will my right hon. Friend
respond to a point now, as it is relevant? I said that I thought that
patients’ wishes were already covered in the Mental Capacity Act
2005, which would therefore have an impact on patients being treated in
the mental health services.
Ms
Winterton:
I shall come to the Mental Capacity
Act’s provisions on requests made in advance and why they can be
overridden. It is always a clinical decision whether to offer a patient
what they ask for. That is no more or less true of patients being
treated for asthma than it is of people detained under the Act. It is
also important to recognise that patients occasionally have firm wishes
about what they do or do not want their nearest relatives to be told.
There are times when
patients do not want information to be shared, and we must recognise
that. We are not trying to deny patients autonomy or to suggest that
their views do not matter—quite the opposite.
New clause
25, tabled by my hon. Friend the Member for Bridgend, would provide for
advance statements expressing a patient’s wish that information
be shared with nominated people if they should become mentally
disordered. I understand the intention behind the new clause. Often a
patient might wish for certain people to have access in a crisis to
information about them that they would rather not share unless and
until their condition reaches such a crisis. Of course, it is often
when people are unwell or in crisis that they are unable to express
such a wish. When the patient’s wishes are known by those who
care for them, such named people should be involved either in the
consultation or in the sharing of information as requested. The
Government have strengthened that in clause 10, which will change the
1983 Act by stipulating the kinds of issues to be taken into
account.
Again, it
is important that the issue is addressed in the code of practice. I
will be more than happy to see how the issue is currently addressed,
and to hear hon. Members’ views. There will be many
circumstances in which a person will share with their GP, or with
someone to whom they are close, their wish that in certain situations
they would like certain people to be told certain things. Proposed new
clause 25 covers only some such situations. The views of under-18s, for
example, are outside its scope.
On the point made by the hon.
Member for Tiverton and Honiton and by my hon. Friend the Member for
Bolton, South-East, as I understand it, the new clause would mean that
the person who shares their wishes with their carer must write it down
for it to qualify as an advance statement. The requirement to share the
advance statement with all concerned with the care of a
patient—sometimes that could be against the patient’s
wishes—is too wide. Hon. Members have made the point that people
express their wishes in many and varied ways and at different times. We
discussed that when dealing with the Mental Capacity Act 2005. There
should not necessarily be one laid-in-stone, signed-in-advance
statement because, as my hon. Friend the Member for Bolton, South-East
said, things may change. Professionals should record and draw on
patients’ wishes at the appropriate time, not necessarily always
on a statement that was made at a particular point in time. That was
why we discussed how to take an individual’s views when
considering the 2005 Act.
Mr.
Tim Boswell (Daventry) (Con): Will the Minister remind the
Committee that a professional would in any case be obliged to consider
the patient’s best interest and to act in accordance with
it?
Ms
Winterton:
The point is that the 2005 Act sets out the
parameters of advance decision making. We do not want to replicate that
in other legislation. I would like to strengthen the measure in chapter
16A of the code of practice, which states that a decision to override
an advance decision should be recorded in a person’s notes. I
would like to explore and take advice on being
firmer about giving reasons to the individual concerned. The issue of
the nearest relative is difficult, because sometimes people will simply
not wish for information to be passed on. Looking at that issue might
answer hon. Members’ concerns. We would not wish, however, to
create difficulties for the patient by, say, taking measures that
exacerbated their situation. It is a matter of careful judgment, but I
shall go away and look at it. I think that expanding the code of
practice might solve hon. Members’
problems.
It will be
a disappointment to the hon. Member for East Worthing and Shoreham that
the Government have the same objections as before to new clause 16,
which would reduce from three months to two months the period after
which a SOAD must authorise the administration of medication when a
person does not consent or is incapable of so doing as before, not
least because there is already a power in section 58(2) of the Act to
reduce the period by order. If we wanted to take that issue forward, it
would be more sensible to use that mechanism, which allows for proper
consultation. The change would be based on evidence and would be done
at a manageable and sustainable
pace.
Tim
Loughton:
I know that, which is why I mentioned it
earlier. 24 years on, that order has not been used to reduce the time
despite all the advances in medication. Therefore, why does it have to
take more than 24 years to change that order? Why should we have any
confidence that it will happen in the future? The change could happen
with this amendment to the
Bill.
Ms
Winterton:
The issues remain the same. We do not
have the evidence to show that the current period is not the right
amount of time for ensuring that medication is taking effect and if the
medication is changed for ensuring that it has taken effect. That is
not a human rights issue. The High Court recently refused leave for a
judicial review of the European Convention of Human Rights
compatibility of section 53 of the Act on the grounds that, inter alia,
the three-month period is too long. We believe that three months
provides an opportunity for the treating psychiatrist to reflect on the
medications that are to be used on the patient. The likely efficacy of
some individual medications can be determined in less than three
months, but while a particular medication may have been started soon
after the patient was detained, it is often a number of weeks into
detention that the overall treatment plan evolves.
The hon. Gentleman asked what
happened between the draft Bill and now. The draft Bill was different
legislation with a different approach. At 28 days, the tribunal was
required to authorise further detention. At that point, it could
consider the care plan under that approach. The draft Bill was
criticised for the tribunal system, which was said to be too cumbersome
and too expensive. We reacted to that by saying that we would amend the
1983 Act.
There are
resource implications. Up to 8,000 more SOAD consultant psychiatric
hours could be needed to reduce the detention period from three months
to two months. The second opinion doctor appointed by MHAC should have
at least five years experience as a consultant psychiatrist. In
2005-06, 251 consultant psychiatrists were approved by MHAC. They made
themselves available
to be appointed to give the second opinions required by the Act. That
role is ancillary to their usual role as consultant psychiatrists. They
often have busy caseloads of their own. We must recognise that reducing
the period would have quite severe implications.
We believe that the power is
already in the Act. If we wanted to reduce the time, we would use the
consultation procedures under the Act. We would ensure that the change
was evidence based and done in a manageable and sustained
way.
Dr.
Pugh:
Perhaps the Minister could clarify something
for me. I do not see why completing the assessment in two months as
opposed to three months necessarily leads to any more assessments. That
would have more resource implications. Will she explain why we will
have more assessments as a result of that
change?
I hope that with my
reassurances over patient involvement hon. Members will not press the
new clauses to a Division. I hope that, with my explanation on the
change from three to two months, the hon. Member for East Worthing and
Shoreham will withdraw his
amendment.
2.30
pm
Tim
Loughton:
We have got to the nub of the issue. Despite all
the waffle about the order already being there so that it could be
looked at, the Government are not going to do it, because it is a
resource matter. It is entirely down to resources. Resource
availability is more important than the medical effect—adverse
or otherwise—on the
patient.
I know that
the Committee wants to move on. At least we have the truth out of the
Minister about the real objections to our amendment, so I do not
propose to detain the Committee with a Division on new clause
16.
Sandra
Gidley:
I feel that the Government are not too far from
what we wish to achieve with the amendments. The difference seems to be
about whether it is in the Bill. I will withdraw the amendments, but
will probably return with an amended form of them on
Report.
Mrs.
Moon:
Like other speakers this afternoon, I am pleased to
have some of the Minister’s reassurances, particularly on the
respect that will be paid to patients’ views. I am pleased to
hear that the concept of consultation and communication with carers
will clearly be part of what the Bill seeks to achieve. I am pleased
that the home practice will be looked at, to codify how that will be
addressed. I am happy to withdraw new clause
25.
Dr.
Iddon:
I am sorry to be pedantic with my right hon.
Friend, but will the Minister clarify how the clause on advance
directives now contained in the Mental Capacity Act affects this Bill
and patients’ wishes, if they have made an advance directive?
Surely the Act covers the Bill?
Ms
Winterton:
The point of an advance directive is about
refusal of treatment, not requesting of treatment. If an advance
directive refuses a treatment, then, because we are talking about
compulsory treatment, we would want to make sure that advance decisions
or directives were taken into account. However, the ability to override
the directive would be necessary if the alternative for the
patient—an example we used this morning—might be that
someone dies. That is where we get to with compulsory treatment. If a
patient is refusing treatment and at the same time there is the ability
to override that, then the same applies with an advance directive.
Somebody might be refusing a particular form of treatment, but the
powers of the Act can overcome
that.
Question put
and agreed
to.
Clause 31
ordered to stand part of the
Bill.
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