Clause
31
Section
30:
supplemental
Tim
Loughton:
I beg to move amendment No. 10,
page 20, line 1, at end
insert—
‘(c) after
subsection (3)
insert—
“(4)
Subsection (1)(b), (c) and (d) above shall not apply if the treatment
is electro-convulsive
therapy.’.
The
amendment is another probing one in relation to ECT. Its purpose is to
amend the 1983 Act to restrict the right to give emergency ECT without
the normal safeguards to patients lacking capacity, and instead to
limit treatment to situations in which it is given to save the
patient’s life. We agreed earlier that, although we might not
like the use of ECT—some hon. Members have questioned whether it
ever has any efficacy, and I share that concern—in
emergency life or death cases, we must rely on the opinions of
clinicians at the coal face.
Section 62 of the 1983 Act
covers urgent treatment. It severely limits the emergency provision of
treatments that are hazardous or irreversible. It is generally
accepted, and I think that there is general agreement in the Committee,
that ECT is hazardous, although the risk to individuals will vary
depending on general health and other factors. Indeed, as the hon.
Member for Norwich, North has said, there is a question mark over the
issue of its effect, and its possible side effects. It is therefore
possible, under section 62, that it should not be available except
under section 62(1)(a), as immediately necessary to save the
patient’s life.
It is not clear, however, that
section 62 can be interpreted in that way. The form of wording implies
a relevant treatment not being irreversible or hazardous
of itself, although it might be either irreversible or hazardous in an
individual case. I know that the Mental Health Alliance believes that a
treatment that is potentially hazardous and irreversible should not be
given without a second opinion, except in the most compelling
circumstances, such as when it is immediately necessary to save life. I
agree with that view. It is, also, extremely unlikely that ECT would
ever be the only alternative for a patient. We have heard in an earlier
debate the Minister’s reassurance about how little ECT is used
for children. There have been a couple of handfuls of cases in the past
few years, so the practice is not widespread, but it is important that
safeguards should exist for the relevant people; they should be
protected. In the
debate on this subject in the House of Lords, Baroness Murphy
said:
“The
only circumstance where one is justified in giving emergency
ECT—in other words, to give it without a second opinion in a
life-threatening illness—is where someone has stopped eating and
drinking. Under those circumstances they have nearly always stopped
speaking as well.—[Official Report, House of Lords, 15
January 2007; Vol. 688, col.
483-4.]
The amendment is a
probing one, to attempt to instil some safeguards into the
arrangements. There appears to be some doubt in the wording of the 1983
Act about the potentially hazardous nature of ECT. We want more
safeguards on ECT, alongside those for other potentially hazardous
treatments covered by the
Bill.
Dr.
Gibson:
I think that we all welcome the changes that have
been made in the Lords, on the administration of ECT to patients with
capacity who refuse it. I am still concerned, however, about the
possibility of urgent treatment provisions being used to give ECT to a
refusing patient, in situations that are clearly not an emergency. For
example, violent behaviour, it seems, could in certain instances
justify the use of ECT. The Minister and I are both familiar with the
case of Rocky Bennett, who showed violent behaviour, was restrained in
a certain way, and sadly died. I know that there is no parallel, but it
might be possible, in such circumstances, to arrive at an
interpretation in which ECT is thought better for someone than having
six people sitting on him. I do not know, but the Minister should say
something about that type of case. It can never be right to give
someone ECT just to control behaviour, and I should not want
justification of that to be an aspect of the passage of the
Bill.
I can see that
there might be some situations, involving for example patients who are
catatonic, in which ECT would be used, but in my opinion emergency ECT
should never be given simply to control violent behaviour. I hope that
nothing in the Bill will be taken as justifying or permitting
that.
Mr.
Boswell:
I very much agree with the remarks of the hon.
Member for Norwich, North. The Committee should bear something else in
mind: we are confident in general of the good faith of clinicians, but
in circumstances in which the patient is, perhaps I should say,
behaving badly, which we as lay people would find difficult to handle,
and which may be difficult for some clinicians as well, we may have an
underlying fear that something might be presented as an emergency when
it was in fact a continuing clinical situation, requiring a more
deliberate clinical decision, and that some reversions to ECT for a
patient who was being violent might use the alleged emergency as a
pretext for ECT. I think that the Committee’s overall message
across all parties this morning is the less ECT the
better—certainly not unless it is absolutely necessary or
without due consideration and, if at all possible, consent. I concur
with the sentiments already
expressed.
Dr.
Pugh:
I am not sure how I am going to get this
clarification; maybe the Minister can help me. We were talking about
the possibility of ECT being used to control somebody in an emergency
situation who is being violent. My supposition is that the
administration of ECT normally involves sedation. If somebody is
already sedated, they will not be violent at all, unless it is
suggested that ECT be used on people who are not sedated, which I think
most would regard as cruelty. The case that we need to worry about is
one in which somebody is chronically violent and ECT is seen as a
remedy for it, which is
different.
Dr.
Gibson:
Is it not part of ECT for an anaesthetist to be
present in the room as well? The drug is administered and the patient
is quieted in that way; then the pads are put on the
brain.
Dr.
Pugh:
My point is that using it to deal with a
particularly violent episode would not be the right strategy, because
sedating someone resolves a violent
episode.
Ms
Winterton:
Again, the issue was certainly debated in the
other place. My hon. Friend the Member for Norwich, North raised the
tragic case of Rocky Bennett. I should like to confirm that it does not
appear to me that using ECT to control a violent situation is the right
thing to do, as a general anaesthetic is administered before it
occurs.
My hon.
Friend also made a point about NICE guidance and whether it must be
taken into account as part of the process when patients consider ECT.
The patient is required to understand treatment, which means of course
that best practice is to use information that explains the treatment
fully. In such circumstances, I would consider NICE guidance to be
included in that.
Amendment No. 10, a
probing amendment, quite rightly examines the situation regarding what
is considered emergency treatment, and attempts to say that ECT should
be used simply for emergency treatment—in other words, only in
cases where treatment is immediately necessary to save the
patient’s life. During the debate in the other place, Lord Hunt
and Baroness Royall agreed that the Government would consider the
point, but they felt that to limit the circumstances in which treatment
can be given in urgent situations to those in which it is immediately
necessary to save life would be too restrictive. I agree, and I will
try to explain the sort of conditions where flexibility is needed,
although I understand completely the concerns that prompted the
amendment.
We do not
want our commitment to requiring consent if a patient has the capacity
to give it to be overridden by clinicians wanting to use the urgent
treatment provisions as a mechanism for providing ECT to patients who
object to it. There are strong
arguments that it is inappropriate that all the criteria in section
62(1) should apply when considering whether to give ECT to a patient as
an urgent treatment. The criteria include treatments that are given to
alleviate serious suffering or to prevent a patient from behaving
violently or being a danger to himself or others. However, I am
concerned that amendment No. 10 would prevent treatment for a patient
who does not yet need to have their life saved, but whose condition
risks them suffering irreversible effects if treatment is not urgently
provided. ECT can be effective in treating some patients with
depression. Sometimes, such patients refuse to take any
sustenance—to eat or to drink. If that continues for long
enough, they will
die. 10.15
am
The problem
with the amendment is that it would allow for a patient who continues
to refuse ECT to receive it only when they get to a point at which
their condition is immediately life threatening. It is true that during
that time, clinicians may consider other
treatments.—[
Interruption.
]
The
Chairman:
My apologies to the
Committee.
Ms
Winterton:
However, it can take weeks for a patient to
respond to anti-depressant medications. There may be situations in
which that will be too late.
Before such patients would be
considered to be in immediate need of treatment to save their life,
there will be a time when their continued refusal to take food or
water, while not life threatening, puts them at immediate risk of a
serious deterioration in their condition. Their internal organs, such
as their kidneys, might be irreversibly damaged, which could result in
life-long disability or illness. In such a situation, it would be wrong
to deny a patient urgent ECT treatment when they have either refused it
or are not capable of giving their consent. Also, it would be wrong to
ask a clinician with responsibility for a patient who lacks capacity to
wait either until their condition deteriorates to the point at which
they are on the verge of death, or until the SOAD arrives to certify
the treatment. There are therefore instances in which we would not want
to see clinicians constrained by the effects of the
amendment.
Having
said that, I understand the thinking behind the amendment, but we have
to be realistic; there may be situations in which ECT will need to be
administered.
Angela
Browning:
Will the Minister clarify how much ECT would be
used in the circumstances she described? Will a clinician recommend ECT
to deal with the psychological factors when a patient has unilaterally
stopped taking fluid or other sustenance to the extent that it has had
a physical effect? I am not knowledgeable enough to know whether that
would be the course of treatment in those circumstances—I do not
know, and I do not know whether she knows. Withdrawal of fluid from the
body over a sustained period can have a dramatic effect. Would ECT be
so much as considered in such
circumstances?
Ms
Winterton:
Yes, the example I gave was of someone with
serious depression who, as may well
happen, has stopped eating and drinking. Anti-depressants can be used,
but they take time to take effect. ECT will be used at some stage, but
the amendment, which is in the hon. Lady’s name, would mean that
the clinician had to wait until the patient was near death, as opposed
to putting their internal organs at risk of
damage.
Mr.
Boswell:
Does the Minister agree that it would be wise in
such circumstances, both in terms of clinical governance and any
possible legal challenge, for the clinicians to make a careful note of
the circumstances that led up to the situation and informed his or her
clinical decision?
Ms
Winterton:
Of course that is what we would expect. Given
that reassurance, I hope that the hon. Member for East Worthing and
Shoreham will consider withdrawing the
amendment.
Tim
Loughton:
Again, we have had a useful debate, but we are
talking about some technical clinical situations that the Minister and
myself are probably not capable of analysing in great detail. I did say
that this was a probing amendment and that we might want to return to
this matter. She signalled that there were points in the amendment that
might merit further attention should we return to ECT on Report. We may
consider this further, because I think that we are both trying to
achieve the same assurances and safeguards for the patient without an
early reliance on a highly invasive and potentially damaging
treatment.
I look
forward to the further work that the Minister said that she was
undertaking, and we shall perhaps have a further debate on this on
Report. On that basis, I beg to ask leave to withdraw the
amendment.
Amendment, by leave,
withdrawn.
Question proposed, That
the clause stand part of the
Bill.
The
Chairman:
With this it will be convenient to discuss the
following new
clauses:
New clause
4—Advance decisions and advance
statements
‘(1) The 1983 Act is
amended as follows.
(2) After
section 76 (visiting and examination of patients)
insert—
“76A
Advance decisions and advance
statements
(1) In this
Act—
(a) reference to an
advance decision is to an advance decision (within the meaning of the
Mental Capacity Act 2005(c.9)) made by the patient,
and
(b) “valid and
applicable” in relation to such a decision means valid and
applicable to the treatment in question in accordance with section 25
of that Act.
(2) If an advance
decision is found to be valid and applicable to the treatment regulated
by Part 4 of the 1983 Act, the person providing the treatment shall
have regard to the advance
decision.
(3) Where a decision
is made which is inconsistent with a valid and applicable advance
decision by the person providing treatment, that person must comply
with the requirements set out in subsection (4)
below.
(4) Those requirements
are—
(a) the
circumstances in which treatment was provided and the reason for it
should be recorded in writing;
and
(b) a copy of that record
should be supplied to
(i) the
patient
(ii) the
patient’s nearest relative and another copy placed in the
patients medical notes.
(5) A
person performing a function under this Act shall consider, so far as
reasonably ascertainable the patient’s past and present wishes
and feelings (and in particular any relevant written statement made by
him when he had
capacity.”.
(3) In
section 63 (treatment not requiring consent), at the end,
insert—
“(2) When
deciding what treatment to give, the approved clinician in charge of
the treatment shall consider so far as reasonably ascertainable the
patient’s past and present wishes and feelings (and in
particular any relevant written statement made by him when he had
capacity), and shall record any treatments requested by the patient in
the patient’s medical record, and if that treatment is not given
shall record the reasons for
this.”.’.
New
clause 16—Treatment requiring consent (administration of
medicine)
‘(1) Section 58 of
the 1983 Act is amended as
follows.
(2) In subsection
(1)(b) leave out “three months” and insert “two
months”.’.
New
clause 25—Advance
statements
‘(1) The 1983 Act is
amended as follows.
(2) After
section 142
insert—
“142A
Advance statements
(1) In this
section ‘advance statement’ means a written statement
made by a patient
(‘P’)—
(a)
when P has reached the age of 18 and has the capacity to make such a
statement, and
(b) deposited
with the person (‘N’) who is primarily responsible for
P’s care.
(2) An advance
statement may
contain—
(a) information
about P, and
(b) directions as
to the persons to whom that information (or specified pieces of
information) is to be communicated if P becomes mentally
disordered.
(3) N
must—
(a) have regard to
the advance statement;
(b)
ensure that any other person who is concerned with the care of P is
aware of the advance statement.
(4) P
may—
(a) withdraw an
advance statement, or
(b)
replace it with an amended advance
statement,
at any time when P
has the capacity to do
so.”.’.
May
I advise hon. Members that it is important that when they stand to
speak, they stay standing, so that I know that they are going to speak,
and that they stand
plainly?
Sandra
Gidley (Romsey) (LD): My apologies, Mr. Cook,
for not standing plainly. I was trying not to stand while you, too,
were speaking. I had one eye on the clock and realised that I had only
a minute or two to make comments, and another eye on the
Whip —[Interruption.]
Lord
Commissioner of Her Majesty's Treasury (Claire Ward):
I am
not your
Whip.
Sandra
Gidley:
Most of my comments relate to new clause 4, which
is an attempt to put the Bill, which we are trying to improve, on a par
with the Mental Capacity Act 2005. That Act allows a person to make an
advance directive on refusing further treatment. Such a directive is
most commonly used when people are aware that they have
Alzheimer’s or another degenerative disease. In such
circumstances, people often reach a decision when they are well that
they will reach a stage when they may not want further treatment, so
the directives are commonly associated with a refusal of
treatment.
It is
important in the context of mental health legislation to realise that
there is another aspect to this. Patients can make a positive
recommendation when they are well of how they would prefer to be
treated. They may have received a number of different treatments in the
past and have strong ideas as to which is the most effective and useful
for them. Being allowed to make such decisions empowers
patients.
It being
twenty-five minutes past Ten o’clock,
The
Chairman
a
djourned the Committee without
Question put, pursuant to the Standing Order.
Adjourned till this day at
half-past One
o’clock.
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