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‘(c) the following persons have been consulted about the making of the order under section 17A and the conditions to which the patient is subject specified under 17B—
(ii) the nearest relative of the patient;
(iii) any carer who the responsible clinician believes will play a substantial part in the care of the patient after he leaves hospital; and
(iv) any person with parental responsibility; and
the responsible clinician has taken into account any views expressed by the person concerned.
(d) in this section “parental responsibility” has the same meaning as in the Children Act 1989 (c. 41).’.
Amendment No. 101, in page 19, line 24, at end insert—
‘(c) after subsection (3) insert—
“(4) Subsections (1)(b), (c) and (d) above shall not apply if the treatment is electro-convulsive therapy.”.’.
Amendment No. 96, in page 19, line 27, leave out paragraphs (b) to (d) and insert—
‘(b) if the patient is not under Part III of the Act, (a patient concerned in criminal proceedings or under sentence), the patient’s ability to make decisions about the provision of medical treatment is significantly impaired because of his mental disorder;
(i) the protection of others from serious harm, or
(ii) the protection of the patient from suicide or serious harm to himself that he should receive treatment for his mental disorder;
(d) subject to his being liable to be recalled to hospital for medical treatment such treatment can be provided without his continuing to be detained in a hospital;
(e) the patient has on at least one occasion within five years previous to the present admission under section 3 refused to accept medical treatment for mental disorder;
(i) when appropriate medical treatment has been refused there has been a significant relapse in his mental or physical condition justifying compulsory admission to hospital; (whether or not there has been such an admission); and
(ii) medical treatment was then provided to him which alleviated or prevented a worsening of his condition, its symptoms or other manifestations of his condition.
(f) it is necessary for the protection of others from serious harm, or the protection of the patient from suicide or serious harm to himself, that he should be liable to be recalled to hospital for medical treatment; and”.’.
Amendment No. 84, in page 19, line 37, at end insert—
‘( ) The following persons have been consulted about the making of a community treatment order:
(ii) any person with parental responsibility;
(iii) any person who the responsible clinician believes will play a substantial part in the care of the patient after he leaves hospital but will not be professionally concerned with the after-care services to be provided to him; and
(iv) (where practicable) the person (if any) appearing to be the nearest relative of the patient.
and the responsible clinician has taken into account any views expressed by the persons consulted.’.
Amendment No. 85, in page 20, line 9, at end insert—
‘“parental responsibility” has the same meaning as in the Children Act 1989.’.
Government amendments Nos. 22 and 23.
Amendment No. 103, in page 20, line 33, at end insert—
‘(8) A community patient or his nearest relative may make an application to the Mental Health Review Tribunal to vary or suspend any or all of the conditions imposed under subsection (3)(a), (aa), (c) and (d) above within the relevant period or if substantial variations have been made by the responsible clinician under subsection (4) above.
(9) In subsection 8 above “the relevant period” means—
(i) six months beginning with the day on which the community treatment order is made; and
(ii) the period or periods for which the community treatment period is extended by virtue of the report.
(10) Where application is made to a Mental Health Review Tribunal by or in respect of a community patient under subsection (8) above the tribunal—
(i) may recommend that the responsible clinician consider whether to vary or suspend any or all of the conditions imposed under subsections 3(a), (aa), (c) and (d) above; and
(ii) may further consider the patient’s case if the responsible clinician does not make all or some of the changes recommended.
(11) Nothing in this section restricts the power to make applications to tribunals under section 66’.
Amendment No. 87, in page 23, line 14, at end insert
‘for a maximum of three years in total.’.
Amendment No. 100, in page 24, line 15, leave out clause 30.
Amendment No. 92, in page 26, line 10, leave out clause 32.
Amendment No. 97, in clause 32, page 29, line 2, leave out ‘or 64G’.
Amendment No. 99, in page 29, line 19, clause 32, leave out from ‘treatment’ to end of line 22.
Amendment No. 74, in page 29, line 25, at end insert—
‘(6) The fifth condition is that giving the treatment does not conflict with a refusal made on the patient’s behalf by a person with parental responsibility in relation to that patient.’.
Amendment No. 86, in page 29, line 25, clause 32, at end insert—
‘(6) The fifth condition is that a person with parental responsibility for the patient consents to the provision of such treatment.
(7) In this section “parental responsibility” has the same meaning as in the Children Act 1989 (c. 41).’.
Amendment No. 98, in page 29, line 28, leave out ‘or 64E(6)(b)’.
Amendment No. 75, in page 31, line 16, at end insert—
‘(2A) References to a patient who lacks competence are to a patient under the age of 16 years who lacks the maturity and understanding to be able to understand and retain, or to weigh in the balance, information relevant to the treatment decision, or to a patient under the age of 16 years who lacks the ability to communicate a decision by any means.’.
Amendment No. 76, in page 31, line 17, leave out ‘accordingly’ and insert
‘in accordance with subsection (2).’.
Amendment No. 77, in page 31, line 17, at end insert—
‘(3A) References to a patient who has competence are to be read in accordance with subsection (2A).’.
Amendment No. 78, in page 31, line 30, at end insert—
‘(9) References to a person with parental responsibility are to a person with parental responsibility within the meaning of sections 2 to 4A of the Children Act 1989.’.
Amendment No. 79, in schedule 3, page 63, line 27, at end insert—
‘(2A) After subsection (2) of section 72 insert—
“(2A) The tribunal may remove or vary any condition as to behaviour imposed on a community patient.”’.
Amendment No. 90, in page 63, line 27, at end insert—
‘(d) Where application is made to the tribunal by or in respect of a community patient and the tribunal does not direct that the patient be discharged, the tribunal—
(i) may recommend that the responsible clinician consider whether to vary or suspend any or all of the conditions imposed under subsections (3)(a), (aa), (c) and (d) above; and
(ii) may further consider the patient’s case if the responsible clinician does not make all or some of the changes recommended.’.
Angela Browning: I should particularly like to speak to new clause 13, but I shall also discuss new clause 14 and amendments Nos. 96, 92 and 98, which basically address the question of consent to treatment, particularly on the part of community patients. New clause 13 would provide simpler but safer provision for community patients who are not recalled to hospital, particularly when it comes to providing for a second opinion authorising doctor to examine a community patient in the same set of circumstances as a patient who is detained. In other words, we would like parity, because there are clear parallels between the two sets of patients. New clause 14 seeks a second opinion in respect of those who may be covered by the Mental Capacity Act 2005, but who none the less require treatment. The effect of the amendments is to require a SOAD to examine a community patient. The question is one of considering what happens to patients who are detained in a hospital, and of trying to implement legislation that will give parity to those outside hospital—and, in the context of this group of amendments, to those who are on community treatment orders.
At the moment, under section 58 of the Mental Health Act 1983, a detained in-patient who has already been on medication for three months—we have had some discussion about whether the period should be three months—faces one of two situations. If the patient has capacity to consent to the medication, and does consent, as confirmed by the responsible clinician, the responsible clinician specifies the medication on statutory form 2. If patients lack capacity to consent to medication or if they retain capacity but refuse it while they are in-patients, the responsible clinician must require a SOAD. The SOAD reads the patient’s medical records, examines them, interviews a nurse and another professional who is neither a doctor nor nurse but is involved with the patient’s care, discusses the case with the responsible clinician, then authorises what medication may be given, including details about whether or not it may be given by injection or only by mouth, assuming that an injectable form of medication is made. Details are given on the statutory certificate
issued by the SOAD, so there is careful clinical assessment by someone with a specific medical background.
The SOAD assesses the patient’s mental state, decides if they retain capacity, listens to their objections, if any, to any of the medication, takes note of the patient’s history and response to medication, including adverse effects, notes the patient’s physical health—something that we have discussed a great deal in our debates on the legislation—and explores, particularly with the other professionals, whether there are other non-medication interventions that are more appropriate or whether there is a reasonable alternative. All patients on a community treatment order, after the relevant time of three or four months, see a SOAD, who undertakes the same assessments, examinations and interviews as those for in-patients, but because the patient agrees to the treatment, it is self-evident that the SOAD cannot explore the reason why the patient is refusing and whether that is reasonable. The SOAD will issue a certificate authorising both the medication that can be given only with the patient’s capacitous consent and medication that can be given should the patient lose capacity or refuse the original medication in future. We raised that problem in Committee. The Minister rejected our proposal, but there was quite of a lot of discussion of the need to write the certificate and what might follow under a certain set of circumstances several weeks or even months down the track.
The SOAD must issue the certificate, despite having no knowledge, nor being able to assess why, for example, the patient has suddenly become incapacitous or, while retaining capacity, has decided to refuse medication that they previously accepted. One must assume that patients on a community treatment order, as opposed to those who remain, or are detained as, in-patients, at the point at which the CTO is discussed, will agree to the treatment and suggested programme of intervention, which would be conditional on their having a CTO. All too often, however, things go wrong, so when something significant changes it is important to have a professional judgment by a clinician that is based on the facts, and that is what is at the heart of our proposals.
The new clause gives CTO patients exactly the same rights and safeguards as patients detained in hospital. Patients who are capacitous and consenting would have their treatment authorised by the responsible clinician. Patients who lack capacity, or who refuse treatment, would have the safeguard of the requirement for a SOAD authorisation based on an examination and assessments at the time the decision needed to be made, not based on a piece of certification ordered previously, which could be many months out of date. Safeguards for necessary and emergency treatments are included by amending section 62 of the Mental Health Act 1983 to ensure that patients do not suffer as a result of having to wait for a SOAD assessment. The Minister should consider that seriously. In Committee, we did not have enough time to go into the disparity between the appropriate treatment for in-patients compared with the treatment for people on a CTO. The CTO is proposed as an alternative for patients who hitherto
would have been considered for in-patient treatment, so it is right that there should be parity in the way in which their conditions are clinically addressed, particularly after a significant change of circumstances or after a given period after the CTO is made, and there is a need for reassessment by a clinician. I therefore hope that the Minister will look favourably at the proposal, as she often does when such cases are put to her, perhaps with a little more detail and time than we had in Committee. She has generously tabled amendments on Report—not, I accept, across the board, and I would have preferred many more to be tabled—on issues where she believes that fairness and parity should prevail for patients, as they should be treated equitably. That is what is at the heart of our proposals in this group of amendments.
Mr. Dismore: I have tabled amendment No. 74, and amendments Nos. 75 to 78, which relate to child patients in the community. I have also tabled amendment No. 79, which deals with appeal rights. The amendments seek to give effect to paragraphs 1.18 to 1.25 in the recommendations of the 15th report by the Joint Committee on Human Rights. Clause 32 governs the treatment of CTO patients in the community, without recalling the person to hospital. The basic principle is that a patient with capacity, or competence in the case of a child under 16, may be given treatment in the form of medicine for mental disorder only if they consent and if there is a certificate authorising the treatment from a SOAD. If the patient is capable but refuses treatment, that treatment may only be given without consent by recalling the person to hospital.
The JCHR received evidence from the Children’s Commissioner for England and from the Royal College of Psychiatrists expressing concern about the provisions of clause 32 and their potential impact on child community patients. The principal broad criticisms were that the provisions provide insufficient safeguards in relation to treatment without consent, that they are complex, cumbersome and confusing, and that there is insufficient guidance in the draft code on how they are intended to work. More specifically, a child patient may be given medicine for mental disorder without consent in the community if they lack “competence”. The same applies to an adult patient if they lack “capacity”. The Bill specifically provides that decisions about capacity are to be made in accordance with the test in the Mental Capacity Act 2005, but there is no guidance as to how the competence of a child community patient is to be determined.
Adult patients have greater protection in relation to non-emergency treatment than children, as the treatment of an adult must not conflict with an advance decision which the person giving the treatment is satisfied is valid and applicable. Equally, for adults, but not for children, the treatment may not be given if it conflicts with a decision of a donee, of a deputy, or of the Court of Protection. The Children’s Commissioner and the Royal College of Psychiatrists argue that that should be addressed by giving those with parental responsibility the right to be consulted over the treatment of a child who lacks competence. The European Court of Human Rights, in the case of Glass v. the United Kingdom, recognised the rights of the mother of an incapacitated child patient as his treatment proxy when he lacked competence. The
JCHR therefore recommends that provision should be made for the involvement of those with parental rights in decision making about the community treatment of child patients who lack competence. It recommends that individuals with parental rights should have the same rights as donees with lasting powers of attorney or deputies to refuse non-emergency treatment on behalf of an incompetent child patient.
The children’s commissioner and the Royal College of Psychiatrists have expressed deep concern, too, about the power forcibly to treat children and young people in the community when they actively resist treatment. They insist that guidance on the circumstances in which emergency treatment and the use of force are authorised should be clarified, and they say that further guidance is essential. We share those concerns. Treatment given without consent engages article 8 of the European convention on human rights, especially if there is an objection, and in order for such interferences to be in accordance with law, a person’s position should be more clearly ascertainable than is currently the case, given the lack of specific guidance on competence.
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Again, my right hon. Friend the Minister helpfully wrote to the Committee about the matter, but I am a little concerned about her approach. The position that the Government seem to be adopting, as set out in paragraph 26 of her letter, is that the effect of allowing a parent to refuse treatment would be to veto community treatment for that child, which may not be in the child’s best interests, but she goes on to say that without the co-operation of the parent, supervised community treatment will not work. The Government seem to want to have their cake and eat it, saying that the parent should not have rights in these circumstances, yet expecting them to co-operate.
Without parental co-operation, it is unlikely that a treatment order in the community would be made in the first place. There is some inconsistency in the Government’s position on the matter. When she replies to the debate, perhaps my right hon. Friend will give us more information about why she thinks parents should not be involved in the decision making about community treatment for their children.
Amendment No. 79 relates to paragraphs 52 to 56 of our fourth report. A patient subject to a community treatment order can appeal to a mental health review tribunal against the order as a whole, but not against specific conditions of the order. We think that that risks interference with articles 5, 8 and 13 of the European convention. The Government’s response was that the need to obtain the agreement of an authorised medical health professional as to the making of the CTO and as to the nature of the conditions to be imposed provides protection against arbitrariness. We do not think that that offers much of a safeguard. Will my right hon. Friend be more specific?
The Mental Health Alliance supports the amendment because of the need for better safeguards against unreasonable conditions. It states that despite the Government’s amendment, CTOs give clinicians wide powers to impose conditions on patients’ behaviour and lifestyle—for example, that the patient should live in a certain institution, should be subject to curfew and should not engage in specified conduct.
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