MH69 Annie Taylor

MH70 Dr. Helen Pearce

Question proposed, That the clause stand part of the Bill.

The Chairman: With this it will be convenient to discuss the following: New clause 14—Authority to treat community patients—

Clause 35 stand part.

Angela Browning (Tiverton and Honiton) (Con): It is my pleasure to open the debate. This part of the debate will be long—not only new clause 14, but clauses 34 and 35 are particularly lengthy—but I shall crystallise it. We tabled new clause 14 because there is a basic principle that the Government need to address and which relates to the prescription of treatment and the authorisation of medication by the second opinion approved doctor in advance of what might become a deteriorating situation some weeks or months later. We are concerned about that.

Clearly, the situation could be as simple as somebody refusing to take their medication at a later stage or disliking the side effects. Equally, however, there could be a very salient reason why the patient stops taking medication down the track—a physical occurrence such as a heart attack or something of that nature. It seems wrong that the criterion applied to the patient could be such that, although there might have been a change in circumstances since the initial assessment of why he or she needs a particular treatment or medication, the SOAD—the authorising doctor—may have decreed several months in advance that that treatment or medication must be given. No matter what the relevant circumstances, there would be compulsion, and the patient would be only too well aware of that. That seems wrong in principle.

Therefore, the rather lengthy new clause 14 would simplify the situation so that, when there was a significant change of circumstances, the patient would be reassessed based on those circumstances, and the piece of paper that the doctor had in his or her pocket stating what might happen down the track would not simply be dutifully applied. There would be proper consideration of the patient’s change of circumstances. That is the fundamental principle.

We think that that is helpful to the Government because it would not only encourage the application of best medical practice, but be in the patient’s interests. If the SOAD had the power to predetermine treatment two or three months before, but there had been a change in circumstances that he or she was unaware of, surely it would be in everybody’s interests for the patient to be reassessed at that point.

I suspect that the Minister may tell me that the fact that the doctor had that piece of paper in his or her pocket might encourage the patient to maintain treatment and medication, but the balancing argument is surely that the appropriateness of a treatment, whatever it may be, should be reassessed when there is a significant change in the patient’s circumstances.

Mr. Tim Boswell (Daventry) (Con): Welcome to the Chair, Mr. Cook. I will briefly endorse the comments of my hon. Friend the Member for Tiverton and Honiton with two of my own. First, clearly there is difficulty throughout the process in that one wants assessments to be as contemporary as possible, but, on the other hand, they should not be vexatious either to the patient or to the examining professionals. The Minister might argue that it is not possible to keep assessing people for ever, and I think that there would be a point to that. On the other hand, I find my hon. Friend’s arguments very cogent in relation to the need to do a proper reassessment, and not to give the SOAD the opportunity to issue a blank cheque. It is good medical practice to reassess such patients, particularly if there have been changes in circumstances, and while that does not automatically preclude a continuation of the treatment, it demands a reassessment of it.

I shall make a further point. Even among professionals, one imagines that there may be some difficulty in dealing with legislation of this length and complexity, although it eventually distils to good practice. The Minister should not be frightened about the complexity of the new clause, since she is happy to present to the Committee schedule 6, an extremely complex and lengthy working out of difficulties about Bournewood and the Mental Capacity Act 2005. Speaking as a non-lawyer, I think that it is sometimes necessary to write at great length in order to anticipate and codify the circumstances under which certain things should happen by way of good practice.

Angela Browning: My understanding—I do not claim to be an expert—is that, should the patient subsequently lose capacity during that period, there need be no delay. A section 62 treatment would be given, so the Minister need not worry that there would be a long delay for somebody who had moved from having capacity to losing it in the interim.

Mr. Boswell: That is a helpful intervention. There is an obligation on those with care of the patient constantly to assess the capacity available. That is a somewhat infinite process, but those with care must have their minds open to any deterioration or change that could affect the patient’s situation. It is sensible to consider the process clinically, and it is legally important to have it as a safeguard for the parties involved. It need not be unduly onerous or vexatious to include that requirement, and I hope that the Minister will consider the matter with care.

The Minister of State, Department of Health (Ms Rosie Winterton): Welcome back to the Chair, Mr. Cook. I would like to explain a little more about the background to clauses 34 and 35, which I hope will give some reassurance to the hon. Members for Tiverton and Honiton and for Daventry. As they have said, those clauses insert new provisions in legislation to allow for the treatment of supervised community patients, both in the community and on recall to hospital. They will also insert important new safeguards, including the SOAD, which will allow all SCT patients to have a review of their treatment in the community and in the event of a recall to hospital.

The SOAD will provide that review through a new part 4A certificate, irrespective of whether patients have the capacity to consent, or not, to treatment and irrespective of where that treatment is given. That measure allows treatment to continue in situations such as that mentioned by the hon. Member for Daventry, in which capacity may fluctuate, and treatment can also be provided should the patient be recalled to hospital.

It is important to be clear about the fact that treatment in the community cannot be given without consent to any patient who has the capacity to consent to or refuse treatment. A patient who is refusing treatment cannot be given that treatment by force against their will. If a patient refused at the outset to accept treatment as part of their community treatment order, that CTO could not be made because it would not be effective in practice. That goes back to the debate that we had last week. Understanding the way in which CTOs would operate is extremely important to the debate. Patients must accept that the CTO is part of their treatment and that it does not work if somebody says, “But I don’t accept that I need to take my medication.” It is an important principle in CTOs that there is that understanding and acceptance of the conditions.

Mr. Boswell: On CTOs, it is fair to recall that, although it is necessary for the patient to consent in practice—the Minister suggested that that would limit the number of cases in which they could be applied—it is a kind of consent under duress, because the alternative may well be to continue in hospital.

On clauses 34 and 35, there could be circumstances in which a patient recovers capacity fully. If that happens, and as a consequence the patient withdraws their consent, how will the doctor know, or how will they respond to that position, because it would then be unethical to continue to treat the patient, as well as unlawful, unless a different provision were sought?

Ms Winterton: As I said last week, if a patient said that they no longer accepted that they needed to take their medication, it would be up to the clinician to decide whether, at that point, recall to hospital was appropriate. That does not mean that they have to recall a patient to hospital, but they must consider whether it is appropriate. For example, if the patient’s point is that their medication is having side effects that they find it difficult to cope with, the clinician may wish to suggest a different dosage. It does not mean that, if a patient says that they do not want to continue with the treatment, recall is automatic, but the provision gives the clinician the option at that point.

What worries me about the new clause is that it would remove an important safeguard, introduced by clauses 34 and 35, ensuring that all patients in the community have their medication independently reviewed. It would also prevent clinicians from treating patients without delay on recall to hospital, and would therefore jeopardise the effectiveness of supervised community treatment, as well as inevitably causing unnecessary disruption to patients’ lives. There are also some technical flaws, but I will not go into those.

The aim of the part 4A certificate requirement is to ensure that all SCT patients have had a second doctor review of the appropriateness of their plan of treatment, wherever that treatment is to be given, whether in hospital or in the community. We want all patients to benefit from that safeguard, whether or not they have the capacity to consent to that treatment. That is crucial for community patients, who are not in a hospital environment where treatment can be reviewed and monitored intensively. Obviously, community patients’ contact with the clinical team would be less frequent, so the SOAD review offers protection to ensure that the treatment that they receive is, and continues to be, right for them. I find it difficult to understand why Opposition Members would want to take that protection away from patients.

It is important that the SOAD is able to approve treatment of the patient in the event of recall to hospital, as well as in the community. The SOAD does not have to address the issue of treatment on recall to hospital—it is not a requirement—but can do that if it is appropriate. Of course, it is always possible to reassess a patient on recall to hospital.

I am advised by psychiatrists, including those who perform the SOAD function, that when discussing CTOs we might be talking about well-known cases where a prediction of treatment in relapse can be fairly accurate. It is perfectly appropriate to look forward and make such judgments.

Angela Browning: I agree with the Minister that it is appropriate to look forward and make such judgments if everything is equal to when the initial assessment was made. However, a significant change of circumstances could have taken place. It is not just a question of the patient coming off medication because they do not want to cope with the adverse side effects any more, although that is a common problem. I raised with the Minister the possibility of a situation in which a physical disability has intervened. How does she accommodate such a change of circumstances?

Ms Winterton: As I said, the SOAD does not have to address the issue of recall to hospital unless it is appropriate. That might be a circumstance in which a patient’s not taking their medication is the cause of a relapse, and so it is important that they can receive that treatment immediately on returning to hospital. The new clause, tabled by the hon. Member for Tiverton and Honiton, would prevent the patient from being treated quickly on returning to hospital. However, as things stand, a reassessment of the patient’s needs can be made at that time—there is absolutely no problem in doing so. Indeed, if a treatment becomes inappropriate, the doctor will not be expected to administer it simply because the SOAD has said that it might be appropriate. Such clinical flexibility is allowed.

Mr. Boswell: I assure the Minister that we have no intention of removing any of the safeguards and we welcome the progress that has been made with our involvement.

The point that puzzles me in a simple and lay way is why it should be thought that the SOAD provides a single gateway for all circumstances. If there is a material change of circumstances of a medical nature, the person responsible for treating the patient should not be obliged to refer. As I understand it, the Minister is saying that it will be possible to refer to the SOAD as a matter of good practice—we can hardly argue with that. However, it is not quite clear to me why it will not be required, or expected, that that should happen.

Ms Winterton: As I said, the SOAD will provide an independent review of treatment in the community so that the patient has a safeguard. That does not always tie the hands of the clinician. If recall to hospital becomes appropriate, it is important that the clinician has the flexibility to be able to administer treatment very quickly. That does not mean that it will have to be administered if it is not appropriate at that time. It is simply a matter of ensuring that there is a protection for patients in the community—in the form of an independent review—and an ability to treat them quickly on their return to hospital to save going through the whole process of assessment again, which would put the patient in a worse position. I understand that this is quite a complicated issue, but I hope that with those reassurances, Opposition Members will not press the new clause.

Dr. John Pugh (Southport) (LD): I want to widen the debate a little and test my understanding of what clauses 34 and 35 involve. I think that we all accept that the history of compulsory medication in this country has not been a happy one for anybody, let alone the mentally ill. Some treatments have been futile, some have looked downright punitive and some have been experimental. The first use of LSD in this country was on mental health patients in Kent. There is also an issue with unacknowledged side effects, which have often been identified many years after patients have been taking particular drugs persistently. There is an acceptance that prescription in mental health services is a fine art; the dosage must be correct in order to have the required effect. I welcome and accept the Government’s concept of an independent review of medication as and when it is applied under CTO conditions.

As I understand it, the Mental Health Act 1983 laid limitations on compulsory medication for detained patients. I am not saying that my understanding is immune from any kind of challenge from the Minister; in fact I would welcome a challenge when I go wrong. The general presumption, even in that legislation, is that medication would be applied with consent. In fact, most patients detained as in-patients are happy to consent to their medication and to get some benefit from it. There was always a possibility under the 1983 Act of medication being administered without consent, if the patient did not understand and it was therapeutically necessary. The Act also contains other exceptions that allowed a fairly wide range of discretion: doctors could intervene if it was a life-saving issue and it was necessary to prevent a worsening in the patient’s condition, and also in order to prevent direct harm by the patient to themselves, as long as the medication process itself was not irreversible. In emergencies, medication could be used as long as there was not an irreversible effect.

With regard to the provisions in the legislation that apply to CTOs, the Mental Health Alliance said:

I have to say that it is challenging not only for practitioners, but for legislators. Therefore, I want to test my understanding by putting to the Minister what seems to be involved and the problems that I think are contained within it.

The general assumption is that if a person is on a CTO, they will consent to treatment, subject to the overriding conditions laid down by the Mental Capacity Act 2005. We are talking only about the possibility of medicating patients without their consent on their recall. It seems that intervention and/or medication administered with force—one might consider a scenario where someone has an injection in order to sedate them or control them—can occur under CTO conditions if an adult lacks capacity, if a child under 16 lacks competence and, mysteriously, if the patient does not object to the use of force. I found the latter in the notes on the Bill, rather than the actual Bill. One wonders how that scenario could evolve and one assumes that there must be some distinction implicit in the legislation between the patient’s standing will and the will that they have on a particular occasion, such as during a psychotic episode. That, I assume, is the reason that provision is included, as it seems rather perplexing that one would want to use force if a patient had consented.

It would appear that medication can be forced on a patient in circumstances such as those set out in the 1983 Act; under a CTO, when the treatment is regarded as immediately necessary. If a medical officer judges, regardless of the consent conditions, that something needs to be done which is regarded as immediately necessary, under a CTO, would that judgment simply override whatever conditions are already in place?

Further to what we have just debated, I accept that there is an argument to be had about the effect on the system and the patient of an advanced medical directive. We have had a similar, almost parallel argument with regard to advanced patient directives. There are pluses and minuses that may need further investigation, but at this stage I would like the Minister merely to respond to my queries to test my understanding of the legislation. If medication is to be forced on a patient while on a CTO—not on recall—in what circumstances will that take place?

Angela Browning: Despite the Minister’s explanation, I still have some concerns. I assume that a rapid deterioration would count as an emergency and, thus, a need for immediate intervention. Section 62 would authorise emergency treatment, so patients will not be put at risk when the nature of their emergency is concerned with their mental health. The emergency could be of a non-mental health nature, but that does not seem to be taken account of by the fact that the SOAD is authorising treatment down the track without being aware of the circumstances.

I should like the Minister to compare such issues with that of detained patients. When patients are detained, they receive a SOAD when they no longer consent or when they lose capacity. However, that treatment is not available to CTO patients under the proposal. There is a disparity between the treatment and the response that an in-patient can expect and what a person in the community can expect. We must bear it in mind that CTOs are something of an experiment that we have covered in earlier parts of the Bill. We hope that, with CTOs, the Minister would at least be giving recognition at the same level of intervention as would be given to someone who was detained, bearing it in mind that those patients would have been detained previously and are now in the community. The comparison of safeguards is therefore important. The SOAD is a safeguard. That is its purpose.

Mr. Boswell: Does my hon. Friend agree that it is an important safeguard for the doctor to have a second opinion? While a challenge would not remove the possibility of litigation about professional negligence, it would nevertheless reduce it. As with the Mental Capacity Act 2005, a lot of what is being done is properly to safeguard the position of those who do things for people as well as those to whom they are done.

Angela Browning: That is obvious. My hon. Friend is right that such a safeguard is important. We are talking primarily about safeguarding the patient, but equally we must have regard to the professionals who take responsibility for the patients. If things go pear-shaped, all too often it is the person who last saw the patient who takes the responsibility.

Ms Winterton: If Opposition Members accept that the measure is an important safeguard, why are they trying to abolish it with the new clause?

Angela Browning: We are not trying to abolish it. Initially, we proposed the abolition of clause 34 and replacing it with our amendment. Unfortunately, it was not selected, which is why I am speaking to new clause 14. If the Minister reads it, she will see that it might simplify matters somewhat, but it certainly would not remove safeguards. In fact, the SOAD is a safeguard. If matters are just left to the responsible clinician down the track, there would be no real SOAD safeguard in the Minister’s proposal.

Ms Winterton: The new clause would take away the independent review for patients with capacity to consent. Perhaps that is unintentional, but that is what it would do.

With regard to forcible treatment in a patient’s home, I reassure the Committee that there will be no forced treatment of patients who have capacity or competence to consent, but who do not do so while subject to a CTO. If forcible treatment is necessary, the patient will be recalled to hospital. Forcible treatment outside hospital for patients who lack capacity or competence to consent cannot be given except when the responsible clinician has no reason to believe that such a patient objects to the treatment, and as long as that does not conflict with an advance decision, one made by someone who has been given a lasting power of attorney, or a deputy appointed by the Court of Protection.

Some of the issues are about practicality. For example, if a person required an injection but had to be held down to get it, the injection could be administered as long as they were not objecting—[ Interruption. ] If, say, a muscle spasm in the arm would react, force may be applied. We are talking about limited circumstances. As under the Mental Capacity Act 2005, if a person gave any indication of objection, the treatment would not be given. Practicalities will determine the limited circumstances in which a clinician would have to take such action, but they are very unlikely.

Mr. Boswell: If I may follow the Minister, I am increasingly coming to the view that we should after all have left the safeguards in common law because of the lack of flexibility and the extreme circumstances that she described. While that is not my considered view—I like the Act, as she does—will she consider that there is no intention on the Opposition side to remove any of the safeguards that she is seeking to introduce? I have said that again and again. However, given that the complexity of the issue, will she at least undertake to review the situation? Circumstances might change, and a clinician who has made a judgment in good faith and has had that supported by a second doctor, might be obliged or encouraged, not least for their own protection, to go back and review their initial decision. We are not seeking to preclude appropriate treatment, let alone emergency treatment, but there is a potential difficulty if clinical approval that has been given in one position is not transferable when circumstances change.

Ms Winterton: I am sorry to contradict the hon. Gentleman once again, but the effect of the new clause would be to remove the safeguards for people who have capacity. I understand that that is not what he intends, but I will ask the Committee to reject new clause 14, because it would remove the safeguards.

I conclude by saying again that force may be used to administer treatment in an emergency——for example, to save a patient’s life. In all such emergency cases, force will have to be a proportionate response to the seriousness of the harm that might be caused to the patient. It is a similar approach to that taken by the Mental Capacity Act 2005—force has to be proportionate and used in a way that helps rather than harms the patient.

Dr. Pugh: The Minister may be able to help me. Clearly, when life and death are at stake, it is overriding that somebody must do something. She suggests that force may be used in those circumstances, and that the clinician will not have to make legal moves in order to use that force should he judge it necessary.

Was the Minister sketching another scenario in which a clinician who judges that medication is to be administered against the will of a patient who is on a CTO that stipulates that they should consent must make a new legal move to put in place the requirements laid down for in-patients? In other words, there are circumstances in which needs must: clinicians must do what they have to do to save lives. That is an overriding imperative in circumstances in which action is immediately necessary. However, at the start, the Minister seemed to be saying that one could move from a scenario in which a patient was consenting to treatment on a CTO to a different one, which was nevertheless not quite the same as sectioning, in which some legal move was required prior to a change in the patient’s clinical treatment.

Ms Winterton: The Government want to ensure that a patient on a CTO has their treatment independently reviewed and that they have access to treatment very quickly on recall to hospital. The problem with the Opposition’s new clause is that it removes the ability of the SOAD to authorise treatment independently, which means that, on recall to hospital, the patient would have to go through the legal process again, and that is what we are objecting to. It may be that that is unintentional. Perhaps it is a probing new clause. I am afraid that I have to ask the Committee to reject the amendments.

Angela Browning: I do not think that we are going to press the amendments to a vote, but I urge the Minister to reflect and, if necessary, discuss again the points that we have made.

Question put and agreed to.

Clause 34 ordered to stand part of the Bill.

Clause 35 ordered to stand part of the Bill.