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There are times when advocacy is perhaps more relevant than it is at other times. I suggest that
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immediately or very close to the point at which a person has been admitted to hospital under a detention order, they should be made aware of their rights to advocacy—subject, of course, to their being aware and well enough to understand that information. Early intervention and notice of advocacy and access to an advocate are extremely important.

Mr. Kidney: Before everybody loses sight of the fact, I point out that proposed new clause 130B(3)(a) in new clause 3 says that the independent mental health advocate may

Angela Browning: I appreciate that, but I felt that the Minister was praying in aid the code of practice in her response to me, and I just wanted some clarification on that issue. Finally, I want to pick up on a point made by the hon. Member for Birmingham, Selly Oak (Lynne Jones): when we consider the nearest relative and carer, we should remember that they are often one and the same person, and that is quite a difficult situation, not least in the situation that she identified. Sometimes, if the patient lives with their nearest relative, or their nearest relative is also their primary carer, a situation develops in which that relative becomes personally involved in assisting the medical profession to section someone close to them. That can trigger a reaction on the part of the patient. I hope that the Minister will consider those situations and will be flexible enough to identify them on a case-by-case basis.

However, the Minister faces a dilemma, because it is not an easy issue to resolve. In the Bournewood case, the nearest relative of HL—an autistic adult who was detained—did not have day-to-day knowledge of HL’s condition. It was actually the paid professional carer who had that knowledge, and it would have been much more helpful if the carer had been involved at a much earlier stage. I appreciate that it is a difficult point for the Minister, but I hope that the system will be robust, yet flexible enough to allow difficult circumstances to be built into the changes that she is introducing.

Meg Hillier rose—

Mr. Deputy Speaker (Sir Michael Lord): I call Kitty Ussher. I beg your pardon—I mean Meg Hillier.

Meg Hillier: Thank you, Mr. Deputy Speaker; I am glad to know that it is not just me who makes that kind of slip occasionally. I welcome new clause 3, which is comprehensive and which goes quite a long way towards tackling some of the issues that cause me concern. I look forward to seeing the regulations, and I know that the Hackney organisations with which I am involved will want to contribute to the process, particularly with regard to issues of language and cultural awareness, which were raised by the hon. Member for Romsey (Sandra Gidley). Those are huge issues in a constituency such as mine, where 300 languages are spoken, and where all the inequalities that affect the mental health of people of many different ethnic groups are highlighted to an
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extreme. I hope that new clause 3 and the regulations will help to pave the way for greater advocacy for people, both pre-detention and post detention. I raised that matter through probing amendments in Committee. The new clause sets out a good way forward for extending rights of advocacy.

I cannot end without touching on the issue of resources, because under the Mental Capacity Act 2005, the whole of Hackney—not just my constituency, but that of my hon. Friend the Member for Hackney, North and Stoke Newington (Ms Abbott), too—received £40,000 for support for those who are unbefriended. I hope that in our debates on that subject we realistically consider the issue of resources. It is worth reminding Members that 12 of the top 20 users of accident and emergency services at my local hospital, Homerton University hospital, were known to mental health trusts; they were the most frequent users of those accident and emergency services, so the advocacy issues are important for a number of reasons. I have highlighted some of the issues that I have already discussed in Committee, so I will not detain the House any further.

Hywel Williams: I, too, welcome the proposals on advocacy, but I am concerned to ensure that advocacy services in Wales are widely available in both Welsh and English. The reason why I intervened on the Minister earlier and asked whether advocates would be assumed to be working for a public authority is that public bodies in Wales are subject to the Welsh Language Act 1993, and must produce language schemes. That might ensure that help was available in Welsh or English, as required. My second point is that if advocates are employed by a public authority, the system should be set up on an entirely bilingual basis. I refer the Minister to the way in which the post of Children’s Commissioner for Wales was set up by Peter Clarke. That started out properly on a bilingual footing.

I refer the Minister to the recent speculation in Wales that the new Welsh Assembly Government might seek a legislative competency in mental health. One of the reasons for that would be to ensure that the service was available in Welsh. Commenting on that, the First Minister, Rhodri Morgan, said that although he was sympathetic to the proposal, he was concerned about whether undevolved aspects of legislation could be disentangled. Some subjects are properly the concern of Parliament, but some are properly the concern of the Assembly. That may be resolved by new clause 3(2), which states:

to enable people to act as advocates. Will the Minister confirm that, to her mind, that requires whoever sets up the advocacy system in Wales to ensure that the system is bilingual from the outset?

5.30 pm

Ms Rosie Winterton: I will respond briefly to the points that have been made. First, on the issue raised by the hon. Member for East Worthing and Shoreham (Tim Loughton) and by my hon. Friend the Member for Hackney, South and Shoreditch (Meg Hillier), we
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have taken on board the points made during pre-legislative scrutiny about the estimates for advocacy. We are still working on the costings, but when the Bill hopefully completes its passage through the Commons, we will be able to produce an updated regulatory impact assessment before the Lords consider the Commons amendments. I hope that that will improve the position outlined by the hon. Member for East Worthing and Shoreham.

Turning to the point that the hon. Member for Tiverton and Honiton (Angela Browning) made about privacy, proposed new section 130B already includes provisions for an advocate to meet the patient in private, and I assure the hon. Lady that we will expand on that in the code of practice. I thank my hon. Friend the Member for Stafford (Mr. Kidney) for his comments, as I know that he is concerned about the issue, particularly the question of advocacy and the nearest relative. I can assure him that proper information about rights will be made available. We always keep those issues under consideration. As for the position of the nearest relative, anyone living with the patient for five years will be placed on the list, as he knows, and anyone living with, or caring for, a patient will be moved to the top of the list. We have therefore tried to make sure that carers are properly defined and treated in the same way that they are treated under other legislation.

The hon. Member for Romsey (Sandra Gidley) rightly raised the issue of black and minority ethnic patients. As I have set out, we have taken a series of actions under “Delivering race equality in mental health care” but, as I tried to stress at the outset, we are considering specialist advocacy for people from BME communities. I reiterate that it is important to confine advocacy to the groups that have been set out. I very much welcome the comments of my hon. Friend the Member for Birmingham, Selly Oak (Lynne Jones) about the fact that we need to make sure that, when we look at the issue of the nearest relative, we involve the relevant people to ensure that the code of practice is right. I thank her for her understanding of the issues that we have tried to tackle. As I have said, I wanted to see whether there was anything further that we can do, but I am convinced that with the exception of the question of looking at the code of practice and so on—I will keep in touch with her on that—we have found the right way forward. I will write to the hon. Member for Caernarfon (Hywel Williams) about the issue of the Welsh language. As I have said before, essentially, this is a question about devolving the issue to the Welsh Assembly. As he said, it is about the Welsh language, too, but I will make sure that Ministers in Wales are aware of his comments.

Finally, I welcome the support given during the debate to our proposals on advocacy. I regret that I still cannot agree to the new clause tabled by the hon. Member for East Worthing and Shoreham because I do not think it is practical and we already have the power that we need to make the changes. Of course I will look at the evidence from the MHAC, but we would have to be clear that the proposal was properly evidence based. For that reason I ask the House not to support the new clause if the hon. Gentleman decides to press it to a vote later.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

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New Clause 5

Independent mental capacity advocacy service: exceptions

‘For section 40 of the Mental Capacity Act 2005 (c. 9) (independent mental capacity advocacy service: exceptions) substitute—

“40 Exceptions

The duty imposed by section 37(3), 38(3) or (4) or 39(4) or (5) does not apply where there is—

(a) a person nominated by P (in whatever manner) as a person to be consulted on matters to which that duty relates,

(b) a donee of a lasting power of attorney created by P who is authorised to make decisions in relation to those matters, or

(c) a deputy appointed by the court for P with power to make decisions in relation to those matters.”.’— [Ms Winterton.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 6

Withdrawal of consent

‘(1) Section 60 of the 1983 Act (withdrawal of consent) is amended as follows.

(2) After subsection (1) insert—

“(1A) Subsection (1B) below applies where—

(a) the consent of a patient to any treatment has been given for the purposes of section 57, 58 or 58A above; but

(b) before the completion of the treatment, the patient ceases to be capable of understanding its nature, purpose and likely effects.

(1B) The patient shall, subject to section 62 below, be treated as having withdrawn his consent, and those sections shall then apply as if the remainder of the treatment were a separate form of treatment.

(1C) Subsection (1D) below applies where—

(a) a certificate has been given under section 58 or 58A above that a patient is not capable of understanding the nature, purpose and likely effects of the treatment to which the certificate applies; but

(b) before the completion of the treatment, the patient becomes capable of understanding its nature, purpose and likely effects.

(1D) The certificate shall, subject to section 62 below, cease to apply to the treatment and those sections shall then apply as if the remainder of the treatment were a separate form of treatment.”

(3) In subsection (2), for “subsection (1)” substitute “subsections (1) to (1D)”.’.— [Ms Rosie Winterton.]

Brought up, and read the First time.

Ms Rosie Winterton: I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker: With this it will be convenient to discuss Government amendments Nos. 10 to 12, 14, 16 to 21, 25, 27 to 34, 36, 37, 39, 41 to 43, 45, 46 and 49.

Ms Winterton: I shall be brief, as I fully expect the amendments to be supported in all parts of the House. They deal with safeguards for patients who are to be treated for their mental disorder with electroconvulsive therapy—ECT. The issue was debated at length in the
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other place and in Committee. ECT is an invasive procedure and some patients are fearful of it. Although it is an established psychiatric treatment, it is a controversial one.

We have already introduced amendments in the other place under which the refusal of a detained patient, with capacity to consent, to consent to ECT should be respected, except in an emergency. Following further debate in which other concerns were raised, the amendments before us provide even stronger safeguards in the very rare circumstances where young persons are treated with ECT. In Committee, my hon. Friend the Member for Norwich, North (Dr. Gibson) was particularly concerned about the provisions for giving ECT in emergencies. I hope he welcomes the changes that we have made.

The amendments also clarify the position for community patients. Government amendment No. 12 ensures that, for patients under 18 who agree to treatment with ECT, a second opinion appointed doctor must first certify that it is appropriate for the ECT to be given. Even where a young patient consents to treatment, we want a second opinion. We have also considered the needs of patients under 18 who are not detained under the legislation or subject to a community treatment order. Government amendments Nos. 16, 21, 25 and 27 require that, where such patients can lawfully be treated with ECT or any other treatment made subject to section 58A, a second opinion appointed doctor must certify that it is appropriate. This is an important new safeguard for voluntary patients under 18.

The Mental Health Act 1983 provides for a limited number of circumstances where the patient can be urgently treated without the need for a statutory second opinion. We have reconsidered those circumstances in the light of requests to do so in the other place and in Committee. As a result, we have concluded that ECT may be given as an urgent treatment in only two circumstances: where it is immediately necessary to save the patient’s life, or to prevent a serious deterioration in the patient’s condition. Amendment No. 19 achieves that, and we have made similar amendments—amendments Nos. 36, 37, 41 and 42—to the urgent procedures for community patients. Obviously, ECT is rarely administered to patients who are not hospital in-patients. The Bill does not afford community patients the same safeguards, and to rectify that we have tabled amendments Nos. 29 to 34, 39, 43 and 46.

We have tabled other technical amendments. Amendment No. 14 removes the requirement that the second opinion appointed doctor certify that the giving of treatment does not conflict with the court order. Amendment No. 28 makes it clear that the certificates for adult community patients and child community patients apply when a patient is recalled to hospital, or when their community treatment order is revoked. Amendment No. 45 provides that the authority that issues a SOAD certificate under part 4A may require the approved clinician in charge of that treatment to report on it.

As I said, I think that the amendments will be supported by all hon. Members, and I recommend them to the House.

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Dr. John Pugh (Southport) (LD): We discovered in Committee that two Committee members had helped to administer this treatment at one time or another. We all understand that ECT is highly invasive, involves sedation, inflicts fits, leads to amnesia and can involve physical restraint, the removal of false teeth and so on. Like acupuncture, it is a treatment that is hard to explain. In a letter, the Minister explained that it is used in a rather strange diversity of cases. For under-18s, it has been used for anorexia, depression, bipolar disease, schizophrenia and obsessive compulsive disorder. It works in some of those cases, albeit temporarily, and although it is addictive its long-term effects do not seem to be conclusively bad. As it is so invasive, it needs to be used with exceptional care. Some consultants will not use it at all, and for others it is a last resort. Its appropriate use therefore needs to be heavily circumscribed for all, not only for under-18s.

The Bill contains definite limitations. For example, the clinician must certify

I doubt that anyone in the UK truly understands the nature, purpose and full likely effect of the treatment, but none the less that is a useful set of words. The Minister has added further words—no fewer than 17 new clauses—so we cannot complain and we will support the changes.

James Duddridge (Rochford and Southend, East) (Con): The Minister is correct to predict that Members on both sides of the House are likely to support the amendments, although that is no surprise given that the Bill has been 10 years in gestation. Throughout that time concerns about ECT have been raised, not only in pre-legislative scrutiny, but in the other place and in amendments tabled in Committee.

The Minister correctly said that ECT is a controversial and quite invasive procedure. In Committee, I probed her about cases involving those under 18. On 12 June, she kindly wrote to me with a sample of the number of people under 18 who were subject to the procedure during a three-month period in 2002. She said that only four people under 18 had been administered ECT, and that none of those was under 16. Perhaps she could look again at those figures, because I note that the Mental Health Alliance briefing contradicts her letter and says that one individual under 16 was included. I am concerned about those under 18 because in the early adolescent periods the brain develops in ways that we do not understand. We are forcing a treatment that we do not fully understand on the bodies of young, vulnerable individuals at a time when the other major organs of the body are still developing. A number of people die following ECT, and I am concerned about those under 16, whose organs are still developing.

I welcome the amendments, particularly those introducing the requirement for SOADs and extending safeguards to those under 18 who admit themselves voluntarily. I have a question for the Minister about when parents do not agree on what should happen to their child. If they do not feel able to respond by going ahead with ECT, they can go to the High Court; but what happens if the parents are in dispute? Would the case go automatically to the High Court?

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I am also a little confused about amendments Nos. 41 and 42. Amendment No. 41 appears to delete a large section of text that is simply put back by amendment No. 42. It might simply be a matter of drafting, and getting the order of provisions right, but I should be grateful if the Minister explained the reasons for deleting one amendment and repeating the same form of words in amendment No. 42.

Finally, given the confusion about the number of people under 18—and particularly those under 16—who have had ECT treatments, would the Minister consider reporting to the House, or making some formal report, on how many people are subject to ECT each year, to monitor whether the number goes up or down, and with a focus on under-16s, as well as those under 18?

Having made those points, I welcome the amendments and congratulate the Minister on tabling them.

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