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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(Morning)[Frank Cook in the Chair]Mental Health BillFurther written evidence to be reported to the HouseMH 65 Commission for
Racial Equality
MH 66 ASW Leads
Network
MH 67 Alan
Capps
MH 68 Submission from
Opposition MPs - a transcript of an informal oral evidence session held
in Committee Room 16 of the House of Commons on Monday April 23rd
organised by Opposition
MPs
9.25
am
The
Chairman:
Before we continue our consideration of matters
relating to clause 30, I ought to comment on the submissions that are
coming into the Committee as we proceed. I am approving the submissions
that come to me as quickly as I can, which I must tell you is pretty
quick. I was relieved to see last afternoon that the
submission—the transcript—from the Opposition’s
little select committee evidence taking sessions has been sent around
to everyone. You all now have that available should you need
it—we have, after all, discussed it at great length.
Some submissions are coming in
indirectly, with a kind of body swerve, as it were, straight to you
rather than to anyone else. I cannot do much about that, but I ask you
to deal with those submissions with care and responsibility, as I know
you will.
Now, being
the diligent and hon. Members that you are, let us proceed with our
consideration of clause 30 by turning
to—[
Interruption.
] Someone has nicked my
script. [
Laughter.
] This is preposterous: a member
of the Government is seeking to gerrymander the
proceedings!
Clause 30Electro-convulsive
therapy,
etc.
Amendments
made: No. 69, in clause 30, page 19, line 4, after
‘treatment’, insert
‘(neither of whom shall be the
responsible clinician or the approved clinician in charge of the
treatment in
question)’.
No.
70, in
clause 30, page 19, line 5, leave
out ‘nor the responsible clinician’.—[Ms
Winterton.]
Tim
Loughton (East Worthing and Shoreham) (Con): I beg to move
amendment No. 9, in clause 30, page 19, line 29, at end
add—
‘58B Treatment for
patients under 18 requiring consent and a second
opinion
(1) Subject to section
62 below, a patient under eighteen years shall not be given
electroconvulsive therapy (whether or not he is
liable to detention), unless a registered medical practitioner appointed
as aforesaid (not being the responsible clinician) has certified in
writing that—
(a) the
patient is capable of understanding the nature, purpose and likely
effects of that treatment, and has consented, and that having regard in
particular to the likelihood of its alleviating or preventing a
deterioration of his condition, the treatment should be given;
or
(b) the patient is incapable
of understanding the nature, purpose and likely effects of that
treatment, and
either—
(i) a person who
has parental authority for the patient understands the nature, purpose
and likely effects of that treatment and has consented to the treatment
and that having regard to the likelihood of its alleviating or
preventing a deterioration of his condition, the treatment should be
given; or
(ii) the High Court
has determined that having regard to the likelihood of its alleviating
or preventing a deterioration of his condition, the treatment should be
given;
(2) For the purposes of
treatment given under this section either the registered medical
practitioner responsible for the patient’s treatment or the
registered medical practitioner providing the second opinion shall be a
clinician with specialist training in child and adolescent mental
health, defined in accordance with regulations prescribed by the
Secretary of
State.’.
Welcome
back to the Chair, Mr. Cook. May I echo your comments about
the evidence that you are receiving, which you are turning around
remarkably quickly? I am sure that all members of the Committee are
grateful for that. The transcript of the informal committee was turned
out particularly quickly—I will call it that rather than
“select committee”, as you referred to it, Mr.
Cook, to save further debate on the subject. I also made sure that hon.
Members were given it directly, so they have probably received two
copies. I hope that it will prove to be useful for the remainder of our
deliberations.
Electroconvulsive
therapy—the subject of clause 30—has always been a
contentious issue. The treatment is particularly controversial, and
gives rise to a number of concerns when applied to children. Amendment
No. 9 would inject some assurances about how ECT may in extremis be
used for the benefit of children. The amendment is in my name, those of
my hon. Friends and those of the Liberal Democrats. It endeavours to
provide that ECT may only be given to under-18s with consent and a
second opinion. The consent would be from the young person when they
are capable of giving it, or that of a parent when they are incapable.
The amendment would allow consent to be given by order of the court in
the case of parents who do not feel comfortable with the responsibility
of giving consent, or who might not make decisions in their
child’s best interest. That would ensure that both young
people’s and parents’ needs are protected.
It is difficult for parents
who are asked about applying ECT to a vulnerable child who is going
through a traumatic time to make a decision. We want to make the
application procedure for ECT easier.
9.30
am
As it is,
children and young people can have ECT on parental consent alone or,
with a second opinion authorisation, it can be administered against
their
wishes and the wishes of the parents. ECT is an invasive treatment and
the pre-legislative scrutiny Committee has expressed concerns about it,
too. It can have a number of side effects, including short or long-term
memory
impairment.
The
National Institute for Health and Clinical Excellence guidelines
stipulate that
“ECT is
usually reserved for cases where there is a perceived life-threatening
situation or where extensive alternative treatments have failed.
Without controlled trials, the evidence for its efficacy is
limited.”
Everyone would
agree that the adolescent brain is developing. Its structure is
changing. We could have great debates about how the brain develops in
the early years and how attachment can affect it. The brain of a
teenager is certainly not fully developed, as I am sure parents of
teenagers will
concur.
I am not a
clinician, but—technically—synaptic pruning, which is
believed to be essential for the fine tuning of the functional networks
of the brain, takes place throughout adolescence, as do changes to the
frontal cortex. That is essential to functions such as response
inhibition, emotion regulation, analysing problems and
planning.
Tim
Loughton:
I got that paragraph from my good right hon.
Friend the Member for West Dorset (Mr. Letwin), in one of
his lighter
moments.
We need to
make sure that, when used, ECT is used for the best therapeutic benefit
of the young person in extremis when there are no alternatives and
when, ultimately, their condition could be life threatening. It is
important that such an invasive treatment, with its potential
psychological as well as cognitive adverse effects, is not imposed
against the will of a young person with decision-making
capacity.
The
amendment would provide for a second opinion under the second opinion
approved doctor system for both formal and informal patients. That
would go some way towards achieving the safeguard. The amendment would
also require that either the young person’s doctor or the SOAD
is a child and adolescent practitioner. Again, carrying on last
Tuesday’s debate about the importance of age-appropriate
treatment carried out by age-appropriate qualified practitioners, that
is more essential in the case of extreme forms of
treatment.
The joint
scrutiny Committee recognised the importance of using specialist
clinical knowledge when working with children and young people. Members
of that Committee agreed with the ECT safeguards provided for under-16s
in the draft Mental Health Bill, but considered that they should be
extended to 16 and 17-year-olds. We are recognising that in extremis
ECT may ultimately be a suitable treatment for a child. I am talking
about a small number of cases. It is absolutely essential that proper
safeguards are attached to the treatment for the benefit of the child
and the parent who may have decision-making powers for that
child.
Mr.
Tim Boswell (Daventry) (Con): Before the hare starts
running in Committee again, does my hon. Friend agree that, in most
cases, the choice to consider
ECT would not arise in an emergency, so the need to obtain a second
consent would not be inhibitory to a proper consideration? It would not
prevent essential treatment from being
given.
Tim
Loughton:
That is indeed right. A future amendment will
deal with emergency situations. We are not looking to take away the
powers of a clinician to administer such treatment in an emergency. If
a decision had to be made in life-threatening circumstances, we would
not want to overrule a clinician’s opinion. I hope that the
Committee will regard the amendment as helpful. It would give further
assurances that children received appropriate treatment—a form
of treatment that is probably the most invasive that we have discussed
so far in
Committee.
Dr.
Ian Gibson (Norwich, North) (Lab): I just want to say
something about ECT. Unless people see it, they do not understand what
a dreadful episode that procedure can be in somebody’s life.
Basically, a person goes into a fit. We do not know what ECT does in
the brain. The best explanation that I have seen is that it resets the
computer, whatever that means. We hear of side effects, and we also
hear of deaths. There have only been seven deaths in the past year, but
it is a dreadful treatment. We have to be very careful when we allow
that treatment to be used.
I will put
my cards on the table and say that I am absolutely against ECT even in
desperate situations. There is always an alternative. I want to amplify
the need for real safeguards for whoever gets that treatment,
particularly children, because their protection should be no different
from that of an adult. The treatment is drastic and we need to ensure
that there are safeguards. At different periods, the Government have
looked into the matter to see that safeguards are in place. I look
forward to hearing what the Minister says. I know that I speak for my
hon. Friend the Member for Bristol, North-West, who is not here. In his
campaigning on mental health, he, too, has worried about the issue. We
should be wary about the safeguards. They must be high enough to ensure
that we do not get any cowboy effects from the treatment of our
patients, particularly our young
ones.
Dr.
John Pugh (Southport) (LD): I may possibly be the only
member of the Committee who has assisted in the administration of
electroconvulsive therapy. I was working as a nursing assistant without
any nursing or medical qualifications during a gap year from
university, which proves that the mental services have progressed
significantly since then.
I can
remember exactly what happened very vividly. People were wheeled in,
jewellery and false teeth were removed, they were sedated, and there
was a brief application. Patients had a fit and it was expected that
amnesia would be an automatic consequence of the treatment.
Incontinence was one of the other automatic responses that sometimes
occurred. The regime under which I was working assumed that the
treatment could be used almost casually. It was used to treat cases of
endogenous depression—when people are very deeply depressed. It
was not used in life and death situations, but in circumstances in
which the psychiatrist thought it was an appropriate
treatment.
Even in those days, some
psychiatrists refused to use ECT. Even those who used it recognised
that there was a limit to how far they could use it. After a while, the
treatment itself became addictive and the patient simply became more
and more depressed unless they had the repeated treatment. The
interesting thing about ECT, as the hon. Member for Norwich, North has
said, is that there is no explanatory paradigm as to how it works;
people just know that it works, in the same way that people, in years
gone by, used to go around travelling fairs and use electricity to cure
all sorts of ailments. Occasionally, it worked on conditions such as
rheumatism. In the absence of an explanatory paradigm, I found it very
interesting to read in the clause, the
phrase
“that the patient
is capable of understanding the nature, purpose and likely effects of
the treatment”.
I do
not think that we understand the full nature of the treatment. I can be
corrected by experts who may tell me that they now understand precisely
how it works.
The
treatment has been used in mental health services for a long time with
people knowing that it has an effect, but not knowing very much about
what other effects it might have. That is a real reason to have extra
precautions put in place, particularly in the case of children because
the child and adolescent brain is still evolving and developing in a
way that the adult brain is not. There are very strong reasons for
putting in place every adequate precaution because, even in the adult
scenario, it may not be a completely satisfactory treatment, especially
if we do not know what is going on.
Angela
Browning (Tiverton and Honiton) (Con): I want to add my
support to what has been said. In replying to the scrutiny Committee,
the Government responded very positively to recommendation 44 and
pledged to amend the Bill as far as young people are concerned. I have
experience with a relative who—I suspect as a result of his
service in the far east in the second world war—regularly
received ECT treatment, which appeared to have results for a short
time, but they were not long lasting. I can share people’s
concern about how it affects adults, but here, in looking at how it
affects young people, it is interesting to note the 2003 NICE guidance
on ECT:
“The
risks associated with ECT may be enhanced...in children and young
people, and therefore clinicians should exercise particular caution
when considering ECT treatment
in”
that
group.
The numbers
show that clinicians are cautious in recommending the treatment,
particularly for young people. The point was made about the need for
additional protection for younger people in such a determination, but
if they are under 18 also for their parents. The parents might be asked
to make that decision, which would be difficult. So, however the
legislation is amended, it must take account of patients who are under
18 and of those who have parental responsibility for them. Adding such
precautionary principles into the Bill would be a good
thing.
Hywel
Williams (Caernarfon) (PC): I, too, was involved in
administering ECT, a number of years ago when I was trained as an
approved social worker. I have first-hand experience of the distress
caused, albeit to
adults. If it caused that sort of distress to adults, there is even more
reason to be cautious with
children.
I would
like to point out that ECT is not a one-off experience, but is given in
courses of up to six treatments. From my direct experience, there was,
then at least, a fear of future treatment among the patients that I
dealt with. The reassurance of the involvement of parents would
certainly be very useful—essential, I think—with young
people.
The
Minister of State, Department of Health (Ms Rosie
Winterton):
I welcome you back to the Chair,
Mr. Cook, and add my thanks for the speed with which you are
turning around our various
submissions.
The
treatment of patients with ECT was debated at length in the other
place. As a result, the Government tabled amendments to the
Bill—clauses 30 and 31 —providing that, where a detained
patient has capacity to give consent, it must be given before ECT can
go ahead. It is important to be clear about the issue of children from
the outset. If a child has capacity to consent and refuses treatment,
then that treatment cannot go ahead. That is the first point that we
need to be clear about and it is provided for by new section 58A, which
we propose to add to the Mental Health Act. It will also be possible by
regulation to subject additional treatment to the safeguards in new
section 58A, which applies to detained patients of all
ages.
Mr.
Boswell:
Just for clarification, when the Minister
referred to a child and the child having capacity to consent, was she
talking about children between the ages of 16 and 18 or about all
children, irrespective of their
age?
Amendment
No. 9 proposes changes in relation to ECT for patients under the age of
18. I assume that new section 58B is intended to apply instead of new
section 58A. I believe that the drafting means that the provisions in
new sections 58A and B would apply to detained patients under
18.
Amendment No. 9
would also apply to patients under 18 who are not liable under the
Mental Health Act 1983 to detention in hospital, to whom I will refer
as informal patients. As many hon. Members have said, particularly my
hon. Friend the Member for Norwich, North, ECT is a very invasive
treatment, but as other hon. Members have conceded, its use in treating
child patients is rare, and there is no reason to think that that will
change.
9.45
am
In the past
three years, the Mental Health Act Commission has heard only nine
requests to give ECT to patients under 18. Two patients were refusing
the treatment, while seven were not capable of giving consent. Of those
seven, only five were certified by the SOAD for treatment. In addition
to the nine, one request was made for a SOAD to consider allowing an
under-18 to be given ECT and medication.
None the less, despite the
rarity of ECT, my noble Friend Baroness Royall said during the
Bill’s passage through the other place that the Government would
consider additional safeguards for children regarding treatments that
come within the scope of section 58A. We are still considering what
issues were raised in the other place and examining some of the
complexities, and are not quite ready to set out our
conclusions.
Dr.
Gibson:
Our friendly National Institute for Health and
Clinical Excellence has done appraisals on ECT technology, and was
supposed to do it again after November 2005. One of its points was
this:
“To help
in the
discussion”—
that
is, the discussion with the doctor whether ECT should be
applied—
“full
and appropriate information about ECT should be given, including
information about its potential risks and benefits, both general and
specific, to the
individual.”
NICE
recommends that information leaflets should be available, too. That is
an important part of the process. It should not just be a doctor
saying, “This is what’s good for you”; the
individual has the right to make an assessment with information. Is
that information available, according to NICE’s
recommendations?
Ms
Winterton:
I shall have to come back to my hon. Friend on
that issue. I am not sure whether the information is available, but I
might be enlightened before I sit
down.
Angela
Browning:
In light of the scrutiny Committee’s
report and recommendations, to which the Government seemed to be
amenable, why was that not drafted into the Bill before it went before
the other
place?
Ms
Winterton:
I am not sure whether the hon. Lady is
referring to the idea that consent must be given for ECT. If she is, I
say to her that we listened to the debate in the other place and
introduced amendments. I hope that that is helpful—we have
listened to some of the points
made.
The
amendment before us would apply to both detained and informal patients
under 18. It raises the difficult issue of parental responsibility. The
hon. Member for East Worthing and Shoreham is quite right to say that
for such parents, what is happening to their child is obviously
extremely distressing and difficult. We do not believe that it is right
for a parent to authorise treatment where a patient is detained,
because that is not how the Act works for any treatment of detained
patients.
As for
informal patients aged 16 or 17 who lack capacity, the Mental Capacity
Act 2005 would, obviously, apply. A parent’s ability to make
decisions about their child, including their right to authorise
treatment, is subject to something called the concept of the parental
zone of responsibility. That means that the parent’s ability to
make the decision depends on the facts of each case, having regard to
such factors as the age of the child, whether the child is refusing,
and the nature of the decision.
Of course, in most cases it is
appropriate for a parent to make decisions about treatment for a child,
when the child is an informal patient and is not competent to make a
decision. However, the courts may view some forms of medical treatment
as so invasive that deciding whether to give them to a child would not
be a normal
parenting decision. I am thinking of cases in which a doctor, perhaps a
second opinion doctor, might have reservations about the treatment to
which a parent had consented on the child’s behalf. We should
not seek to anticipate such cases through legislation, because they may
have to go before the family courts for a decision about what would be
in the child’s best
interest.
James
Duddridge (Rochford and Southend, East) (Con): I apologise
if I am broadening the issue by making this intervention, rather than
probing on the Minister’s specific point, but I have a problem
with putting the matter into context. How many people under 18 have ECT
at the moment, and at what age can it be given? I presume that it
cannot be given to a baby, but can it be given at 11—or at 16?
Is there any breakdown of numbers? I know that that is quite a specific
question; I should like the Minister to give an overview now, but
perhaps she could provide more detail for the Committee
later.
Ms
Winterton:
Perhaps I may explain how things work now under
the Mental Health Act 1983. If a child who is detained consents to the
treatment, it must be approved by a clinician in charge of the
treatment, or by a second opinion doctor. If a child who is detained
refuses the treatment, and is capable of making the decision, the ECT
cannot be given except in an emergency. If the detained patient is not
capable of consent, that must be certified by a second opinion doctor
appointed by the Mental Health Act Commission.
Nine cases were referred to
the commission in the past three years, as I said earlier. Of those,
two involved refusal of the treatment, while seven involved patients
who were not capable of giving consent. Of those seven, only five were
certified by the SOAD so that treatment could go ahead. There are
already safeguards, because the question whether the treatment is
appropriate for the child is carefully examined. We have, as I have
said, amended the Act, with reference to the provision that if a child
capable of making the decision refuses, the treatment will not go
ahead.
Mr.
Boswell:
I think I had understood that message earlier and
what the Minister says appears to be mutually consistent with it, which
is always a good thing. However, I do not think she mentioned the
figures in response to my hon. Friend the Member for Rochford and
Southend, East—which I too was feeling after—in respect
of cases in which a child under 18 has given consent. Will she say how
many children are being treated at the moment, so that we have some
idea? I understand that the hard cases are the important ones, but an
overall figure, which the Minister may yet be able to share with the
Committee, would be useful to set the
context.
Ms
Winterton:
I do not have those figures, but I shall try to
obtain them, if that would be helpful. We have amended the Bill so that
anyone who is not consenting and is not capable cannot have
ECT.
There
are some issues to consider, including in some instances the fact that,
if the child is detained under the 1983 Act, a doctor and a second
opinion doctor need to make the decision. There is independence in that
provision. In a sense, for the parental responsibility to override
that in the case of detained patients is against
everything else that happens under that Act. I realise that this is
difficult and, on first reading, one would imagine that the parental
responsibility could override the provision, but it is important to
recognise that, sometimes, it will be necessary to administer
treatments, with all the safeguards that there are, to ensure that a
child gets the treatment that is
needed.
The amendment
refers to cases going to the High Court. We do not believe that it is
right to require the court to approve treatment with ECT in every case
in which a parent cannot or will not consent. The court should be able
to intervene in a limited number of cases, rather than routinely. If a
parent objected to ECT for their child, they could apply to the court
under the Children Act 1989 for an injunction stopping treatment,
pending a full consideration of the case, when the court might order
that the treatment not be given. In such cases, the child would be
represented by the Official
Solicitor.
With
regard to 16 and 17-year-olds, a deputy would be appointed by the Court
of Protection. If a capable patient is required to consent to
ECT—for example, a 16 and 17-year-old patient who lacks the
capacity to do so with a deputy who has been authorised by the court to
take decisions about treatment—their deputy should be able to
refuse consent as if they were the patient. That is how section 58
works.
Hon. Members
may say, “If a deputy can do it, why can’t a
parent?” The difference is that the court has appointed somebody
who stands in its shoes to make decisions about treatment, hence the
difference between that and the parental
issue.
Mr.
Boswell:
The Minister has given the Committee some
valuable assurances and reassurances about how parents can express
their views and have them taken into account by the court, perhaps by
an injunction procedure. As I recall, it would also be possible, if the
parent was unhappy about the deputy’s view that such treatment
should proceed, for them to make an application to the Court of
Protection for that to be
overturned.
Ms
Winterton:
Yes, I believe that that is the case. However,
there are some elements of the amendment that we do not want to
include; in particular, the idea that a SOAD should always be involved
in certificating ECT for child patients except in emergencies. As I
have said before, there is also the question of whether to include
further safeguards with formal child
patients.
10
am
Dr.
Pugh:
The Minister has explained the legal safeguards well
and has provided some powerful reassurances in some areas. Aside from
legal safeguards, there is the question of whether ECT is ever
clinically necessary. The Minister said that the number of cases in
which ECT is used is limited. Presumably it is possible to give the
Committee some written indication—not necessarily here and
now—of the clinical reasons that have been given for the use of
ECT on children and whether the same clinical reasons are used in other
countries. It might be that the practice simply does not occur in other
countries.
Ms
Winterton:
I am certainly prepared to consider whether we
can gather information on that. I suspect
that it is an area in which there are differences of clinical opinion,
so I think that we would need to be cautious about in any way
indicating that we wanted to override decisions. In the debate in the
other place, some psychiatrists said that, although they had always had
some reservations about ECT, it could be effective in some instances. I
shall see whether I can obtain advice. However, I hope that the
Committee will accept the assurances that I have given and that the
amendment will be withdrawn.
Tim
Loughton:
The debate has been a good one and the Minister
has given some useful explanations. We have been reassured that there
is a route whereby a parent can obtain an overriding injunction, which
is an important safeguard, as are the court-appointed officials that
have been mentioned. I am also pleased that the Minister has promised
to remove some elements of the amendment, particularly those regarding
SOAD responsibility for certification, which would strengthen what we
are all trying to achieve. The amendment was a probing one and I trust
that the Minister will look favourably on it as a way of improving the
legislation on Report. On that basis, I beg leave to withdraw the
amendment.
Amendment, by leave,
withdrawn.
Clause
30, as amended, ordered to stand part of the
Bill.
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