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House of Commons
Session 2006 - 07
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General Committee Debates
Mental Health

Mental Health Bill [Lords]

The Committee consisted of the following Members:

Chairmen: Miss Anne Begg, Frank Cook, † Ann Winterton
Boswell, Mr. Tim (Daventry) (Con)
Browning, Angela (Tiverton and Honiton) (Con)
Bryant, Chris (Rhondda) (Lab)
Coffey, Ann (Stockport) (Lab)
Duddridge, James (Rochford and Southend, East) (Con)
Gibson, Dr. Ian (Norwich, North) (Lab)
Gidley, Sandra (Romsey) (LD)
Gwynne, Andrew (Denton and Reddish) (Lab)
Hillier, Meg (Hackney, South and Shoreditch) (Lab/Co-op)
Iddon, Dr. Brian (Bolton, South-East) (Lab)
Kidney, Mr. David (Stafford) (Lab)
Loughton, Tim (East Worthing and Shoreham) (Con)
McCarthy, Kerry (Bristol, East) (Lab)
Moon, Mrs. Madeleine (Bridgend) (Lab)
Naysmith, Dr. Doug (Bristol, North-West) (Lab/Co-op)
Pugh, Dr. John (Southport) (LD)
Rosindell, Andrew (Romford) (Con)
Walker, Mr. Charles (Broxbourne) (Con)
Ward, Claire (Lord Commissioner of Her Majesty's Treasury)
Williams, Hywel (Caernarfon) (PC)
Winterton, Ms Rosie (Minister of State, Department of Health)
John Benger, Committee Clerk
† attended the Committee

Public Bill Committee

Thursday 10 May 2007


[Ann Winterton in the Chair]

Mental Health Bill

1.30 pm
The Chairman: Before we begin, will hon. Members please ensure, as I have, that their mobile phones are either switched off or on silent mode?

Clause 31

Section 30: supplemental
Question proposed [this d ay ] ,That the clause stand part of the Bill.
Question again proposed.
The Chairman: With this it will be convenient to discuss the following: 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.”.’.
Sandra Gidley (Romsey) (LD): Before lunch I was outlining the ways in which advance directives could be used. In the case of conditions such as Alzheimer’s disease or other degenerative illnesses, a decision is often made not to have treatment. However, in the mental health arena there is a good case to be made that people who are feeling well should be able to state a preference for the treatment that they feel has most benefited them in the past. That decision can and I suggest should be made in consultation with the clinician, and it is helpful to the clinicians themselves in providing something for them to fall back on.
Patients who currently fall within the scope of mental health legislation are not afforded the same rights as those who are dealt with under the Mental Capacity Act 2005, which seems somewhat discriminatory. The nature of a mental condition means that there is frequently a lack of trust between patients and clinicians, so anything we can do to help build bonds and bridges is to be welcomed. That would also allow patients to feel much more in control of their lives and their health.
The system that we are advocating already works in some European countries. Even in the UK, a research-based review found that people with severe and enduring mental health problems who were subject to compulsory treatment were able to draw up realistic and logical advance directives, and did not use them as a means of refusing all possible future treatment, as some mental health professionals had feared. It is important to bear that in mind. Interestingly, the study also said that there is no evidence that improved outcomes result from advance decision making, although the issue is not one of outcomes; it is about the ability of the patient to feel confident and secure in any future treatment.
Similar legislation exists in some European countries. The Scottish legislation, which we have discussed extensively in this Committee, specifies that patients can refuse treatment or specify a treatment that they have found helpful in the past. In another place, Lord Carlile expressed disappointment that so many recommendations of the joint scrutiny Committee had been dismissed by the Government. He noted that that Committee had recommended that the Government introduce legislation that would enable people to make advance statements and to record advance decisions—particularly if there was a treatment that they would not wish to receive. So there is a strong drive for the Bill to include something along those lines.
New clause 4 has three aims. First, it defines the nature and function of advance decisions and advance statements. Secondly, it outlines the procedure to be followed if decisions are taken that are inconsistent with an individual’s wishes as expressed in an advance directive. Thirdly, it defines how a person’s wishes and feelings about their care treatment should be taken into account. Considering the Government’s correct and laudable desire for patients to be more involved in their health care, I am struggling to see what the problem is.
Advance directives are documents usually drawn up by individuals when they are well. They are generally binding under common law, but they can be overridden if the person is subject to compulsory treatment under the Mental Health Act 1983. That seems a strange anomaly. Advance statements give people the opportunity to state positively their wishes on care and treatment in case they lose the ability to make decisions for themselves at some time in the future. As I have pointed out, that is helpful to the clinicians themselves and provides opportunities for patients and physicians to discuss treatment in more detail.
It has been said that such provisions could be included in the code of practice, but they are on such a fundamental underlying principle that they should be in the Bill. Codes of practice are subject to change and the weight given to them is not always as great as it should be. It would be helpful if the Minister could consider the matter in more detail.
I have mentioned new clause 16, which we generally support, and to save time—we are under a little pressure now—I will not go into detail on it.
Angela Browning (Tiverton and Honiton) (Con): I support what the hon. Lady has outlined. Those of us who served on the scrutiny Committee and the Standing Committee on the Mental Capacity Act 2005 had a lot of discussion about how the measures would interact with patients with mental disorders and mental health problems. On capacity, it was particularly noted that in the relevant group of patients there is often a pattern of capacity breaking down. With some mental disorders there is a cyclical nature to that, which means that advance statements would have great relevance to the patient and give them confidence in a down period, for example, that they had made their views known while they had full capacity, and that those views would be taken into account.
I hope that I will not be out of order in discussing new clause 25. The hon. Member for Bridgend, who tabled it, might want to respond to my point. The person with whom the patient, referred to in the new clause as “P”, deposits their advance statement might change. There might be circumstances in which no obvious person is identifiable as
“primarily responsible for P’s care.”
Sometimes that is quite difficult.
I have just written to the Minister, not apropos mental health, but about a constituency case involving somebody with a learning disability who, because of his communication disorder, has had great difficulty in getting the correct treatment as a hospital in-patient for his physical problems. I seek some guidance from the Minister; no doubt it will come through, and I shall get a letter back. There are practical complications when one tries to put some things into practice. I hope that we would not be too rigid about saying “It must be this particular person”, because in some cases that person will not be evident.
Mrs. Madeleine Moon (Bridgend) (Lab): New clause 25, which stands in my name, was deliberately drawn up so as to be as open as possible and to allow N to be defined by the patient themselves. N is defined as the person primarily responsible for P’s care, and the new clause allows flexibility for that person to be changed if there is a wish for that to happen.
Angela Browning: I understand the need to make changes. Sometimes the person will be presenting the piece of paper—we must assume that some form of written communication is involved—and referring the matter to the clinician at a time when important decisions are needed. The hon. Lady has obviously thought things through, but I want to think about other scenarios. In a perfect world, everybody would have another person to represent them, but I deal with an awful lot of cases involving elderly people who have lost capacity and for whom there is absolutely nobody. I want at least some flexibility, because if there is nobody there, N might have to be somebody who had not previously regarded themselves as a spokesman for the patient.
I will give an example to the Committee and the hon. Lady of why I am thinking along such lines. An elderly person who had lost capacity through dementia was moved from one hospital to another. She had not made an advance statement. The only person left in her life who could advocate on her behalf about an inappropriate placement turned out to be her next-door neighbour, who was the last person left in the world who knew her wishes, preferences and needs. We are talking about a specific piece of paper, but sometimes the person who takes responsibility for presenting it or for making somebody’s views known is not whom one might have thought it would be. I want some flexibility, so that somebody who does know the person being treated is listened to.
Mrs. Moon: We are looking to give that flexibility. Under new clause 25, the person taking responsibility for the piece of paper can be whomever P chooses. The patient can, if they so wish, lodge it with a professional, such as their community psychiatric nurse, next-door neighbour or even a professional carer. The important thing is that the matter is lodged and that the information is available, and also that the specified person takes on responsibility for taking things forward once the patient is in hospital. That will ensure that the information is available and is shared.
Angela Browning: I am grateful to the hon. Lady. As time goes by, if such an arrangement becomes common practice, as I hope it will, there might be other ways of ensuring at a given point in time that clinicians are well aware of somebody’s requests. People already carry all sorts of things around with them; for example, they may do so to indicate that they have an allergy. I carry around with me a statement that I am allergic to penicillin, in case I am an emergency admission and that is not known. There are other ways of dealing with such concerns. I would hope that, in time, the patients in question could carry such information. That will probably be the answer to providing timely information, particularly when emergency decisions are being made.
I hope that those who served on the Committee dealing with the Mental Capacity Bill will agree that, when we introduced the legislation, the intention was that the further measures would help and assist in such matters. In particular, as in this part of the Bill, that includes advance statements and decisions for those with a mental disorder or those who come into the mental health services.
1.45 pm
Dr. Brian Iddon (Bolton, South-East) (Lab): My hon. Friend the Member for Stafford laid a large elephant trap for me the other day on the matter of advance statements. I fell right into it, and you correctly chastised me, Mrs. Winterton. I will make today some of the statements that I was going to make then.
As I said the other day, I have a natural objection to advance statements, because I think that they have some dangers. I explained those during the detailed debate on Second Reading of the Mental Capacity Bill. My first question to my right hon. Friend the Minister is this. Against my wishes, we included advance statements in that legislation. Does she feel that we need to go over the same ground again and include a similar, if not identical, clause in this Bill? As I see it—I might be wrong—everything that hon. Members and hon. Friends are trying to do today has already been done. Will she comment on that?
I have always believed, and I think that the people who push advance decisions or directives also believe—I still call the organisation that has promoted them more than any other the Voluntary Euthanasia Society, although today it is called Dignity in Dying—that if someone makes an advance statement fairly early in life, they ought to renew it, just as we renew our wills, according to current circumstances. Unfortunately, people forget that they have made wills and advance statements, which stay in a drawer getting dusty until somebody has cause to bring them to the surface. They may be well out of date by that point, for various reasons. People change their minds as they get older and as their circumstances change. They might become richer or poorer, or they might learn to live with ailments that they never thought they could live with when they were younger. I believe that if people make advance statements, they really ought to look at them from time to time.
That brings us into serious difficulty. Some people, tragically, suffer from mental illness, some of them intermittently but some for considerable periods throughout their lifetime. If they make an advance directive, they must have mental capacity when they make it, or it is redundant in law and in the medical service. Nobody, I hope, will enact an advance statement that can be proved to have been made when the person was under duress or peer pressure from somebody who insisted on their making it, particularly if they were mentally ill or without mental capacity when they made it. In the area of mental health, that creates severe difficulties with advance statements.
Let me turn to one of the things that worries me most. I think that we are going to see some big breakthroughs in mental health in the next few years. The brain is one of the unknown frontiers. Many people are researching the mechanisms of the brain—how it works, and particularly how drugs interact with it. I remember when chlorpromazine and the first generation of drugs of that kind allowed us to bring people out of the great institutions where straitjackets and padded cells were used. Those drugs were revolutionary in their time and helped us to bring people back into the community.
We are now into the second and perhaps even the third generation of medicines for people who are mentally ill. The progress in mental health treatment will, hopefully, accelerate. I hope that it will, and I believe that it will, because of stem cells. Alzheimer’s disease has been mentioned, and there is also Parkinson’s disease and other degenerative diseases of the neurological system. There is great hope for many that advances in stem cell research will bring us treatments for Alzheimer’s.
If someone said that they did not want this or that treatment and they then became mentally incapacitated, they would not be able to change that advance directive even if a great advance in medical health came along. As far as I can see, that person would be stuck with the advance directive that they made when they were not ill or when they were much younger. That worries me. People who are thinking of making advance directives, particularly in the area of clinical practice, should be very careful and take advice. Most of us are ignorant about mental health treatments because we have never been involved with the mental health services and we just do not know what they can do for us and what advances have been made.
Finally, the hon. Member for Tiverton and Honiton referred to the problem of communication. When we discussed the Mental Incapacity Bill, we went to great lengths to seek assurances from Ministers that if someone became incapacitated—through a stroke for example—and was not able to communicate as well as we can in this Room, mechanisms and instruments would be made available, so that they could communicate without speech, or even in paralysis, to the clinicians around them. The hon. Lady made a very good point.
I have always been against advance statements because of the dangers that exist. I do not say that people should not have the freedom to make those statements, but when they make them they should take into consideration all those points.
Mrs. Moon: There is quite an onus on the Committee to recognise—and I think that it has been recognised throughout the debates—that there have been huge changes in availability of mental health services and medication, to which my hon. Friend the Member for Bolton, South-East referred. We have also been very careful to ensure that we do not increase fear among mental health service users. There have been many changes since 1984. However, one of the things that has not changed is anxiety around what happens at the time of compulsion. It is a time of extreme stress and fear. One of the things that new clause 25 attempts to do is to allow someone with a history of mental health problems to feel that their voice will be heard at a time when they are least able to express their opinion and say who they are as an individual and what they want to happen. During the debates, I have been particularly impressed by the willingness of my right hon. Friend the Minister to recognise the voice of the patient and, in particular, the voice of the carer. New clause 25 aims to support those two groups of people at a time of great difficulty.
When we are admitted to hospital, one of the first things that happens is that a nurse sits at the side of our bed and takes down basic data. She may say, “Who do you want us to talk to? What do you want to eat? What medication are you allergic to?” In fact, she will raise all the things that the hon. Member for Tiverton and Honiton referred to. If we are able to communicate, we might say, “We are allergic to nuts.” I am a vegetarian, so I would say, “Please do not give me any meat.” It is critical information. One could say, “I had this medication and I had an allergic reaction to it, so I should not have it again.” We might say, “This is a medication that I had in the past. I found it useful. If I tell you that I do not want it, please do not listen to me because I found it useful in the past.”
Many of the submissions to the Committee, including MH49, MH14 and MH26, from SANE, the Mental Health Foundation and Rethink respectively, and in particular MH11 from the Princess Royal Trust for Carers reiterate the concerns of carers, family and friends that, at a time of great crisis, when a person for whom they care and about whom they are most knowledgeable is admitted to hospital, they find it difficult to have their voices heard and to access information.
Some mental health service users say that they feel a loss of identity and that their wishes are ignored, which leads to a lack of trust between them and the medical practitioners who are there to support them. It is often said that information is power, but sharing information is also about partnership and inclusiveness. Document MH10, submitted by the Royal College of Psychiatrists, states that
“outcomes are optimised when patients engage early, when they take a full and active role in their treatment and have trust in their psychiatrist or other professional”.
Partnership and shared decisions make for improved outcomes. New clause 25 is about allowing patients to engage early and to take an active role in building trust with the professionals on whom they rely at a critical point in their life. It would also provide the shared decision making that will be likely to improve outcomes.
I said earlier that a number of carers have talked to me about feeling excluded. I met with Mental Health Matters in my constituency and with people from local carers centres. They all said that they feel that they would like their voices to be heard. The new clause is about specific pieces of information. It does not define what information should be shared, because that should be what an individual thinks is important—it is their information. I understand the fears and anxieties of tying practitioners to following patients’ wishes when they are inappropriate, but the measure stipulates that they “have regard to”, or are aware of, the “advance statement”. There is no legal binding to the statement, but there should be regard to it. The statement may be withdrawn or replaced at any time, as circumstances change.
More importantly, the statement would allow a person’s life to continue at a time when they have suffered a loss of capacity. In an advance statement, a patient can nominate the person who they want to pay their bills, or water their plants. It can deal with small issues such as the care of pets. The statement would deal with the important things that allow people to survive, so that their life does not go on hold. Hopefully, it would also mean that if a person so wishes, information could be shared with employers, so that they are no longer excluded from knowing what a patient wants them to know about their recovery and future.
The statement would be a living document; it would be flexible and could be changed. It is based on having regard to rather than compulsion. It is about looking at a new way in which patients, professionals and carers can communicate, in a partnership that allows an open dialogue. Hopefully, it will improve outcomes.
Tim Loughton (East Worthing and Shoreham) (Con): May I welcome you back to the Chair, Lady Winterton? May I also change the subject, because I should like to speak to new clause 16, which, slightly oddly, has been placed in this group?
New clause 16 would amend section 58 of the 1983 Act by reducing the requirement relating to medication from three to two months. Given the serious effects of medication and the possibility of patients being given too high a dose without their consent, or even despite their active opposition to such medication, this is too important a safeguard to be jettisoned. The Joint Committee on Human Rights expressed its serious concern about the issue in its recent report and called for a change in the law.
2 pm
Under the amended Act, the test that the SOAD must apply is changed from
“having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given”
“it is appropriate for treatment to be given to a patient if the treatment is appropriate in his case, taking account of the nature and degree of the mental disorder from which he is suffering and all other circumstances of the case”.
In deciding on treatment, the SOAD should consider the patient’s observations on his or her illness, its impact on his or her presentation, behaviour and relationships and the current treatment, including any side-effects. The views of the responsible clinician and other members of the clinical team are also relevant. Many physical side-effects can result from taking medication—often strong chemicals—including weight gain, diabetes, impotence, disabling movement disorders, lethargy and feeling drugged up all the time. A case has been made, in other submissions to us, that people who are subject to treatment under sectioning should have more regular physical health checks than other people, simply because of the knock-on effect that their medication for the mental health condition is having.
The Act gives an exceptional power to override the choice of those patients who retain the capacity to make their own choices. That is not available for treatment for physical illness. Although the responsible clinician should seek the consent of the patient and listen to his or her views, that often does not occur. As the Mental Health Act Commission has reported,
“Too many patients feel that they are excluded from decision making and the exercise of choice in their hospital treatment and unable to discuss their subjective experiences of therapeutic effect or adverse side-effects. This is likely to exacerbate the likelihood of non-compliance after discharge and may contribute to the problems of revolving-door readmissions”.
The commission lists among its 10 common problems with the administration of the treatment:
“No record of discussion with patient regarding proposed treatment...No record of assessment of patient's capacity to consent to treatment... Patients telling visiting Commissioners that they are not happy taking their medication... when this is covered under a Form 38 certifying their informed consent”,
and so on. All those factors contribute to the case for careful and prompt oversight of patients’ medication, which is what the new clause is about.
Three months is too long a time for patients to be treated without consent, or with a lack of capacity to consent to treatment that may be causing them physical harm. There were arguments in another place over the length of time that the period should be limited to, if it were reduced from three months. The Government objected to the possibility of 28 days, on the basis that various medication plans were still being formalised at that stage. However, I do not necessarily take that as read. That is why we have come up with the compromise, having listened to the argument in another place, of reducing the period from three months to two.
It is interesting to note some of the statistics. In 2004-05, 18 per cent. of patients had their plans changed as a result of SOAD interventions. Responsible medical officers know that their treatment decisions can be subject to a second opinion. The SOAD provides a check on the RMOs' practice. The oversight provided by the second opinion ensures that RMOs give careful thought to their decisions. The 1983 Act provides a safeguard for medication beyond a three-month period. In recognition of the fact that three months is a lengthy period, the Act introduced a power for the Secretary of State to reduce the period, by order, from three months, but that has not occurred. Under the 2004 draft Mental Health Bill, about which we have heard much, a tribunal would have authorised medication by the end of 28 days.
The Mental Health Act Commission has stated:
“We believe that the current Act provides insufficient protection to patients in the first three months of their treatment under detention, when they may be forcibly given medication in doses or combinations that are outside of product guidelines and recommendations without the oversight of a Second Opinion Appointed Doctor. Some RMOs appear to share our unease: we receive (but have to decline) occasional requests for statutory Second Opinions in relation to such patients.”
During a debate on this part of the Bill in another place, Lord Patel of Bradford, chairman of the Mental Health Act Commission, said:
“I have to ask, a quarter of a century later, are we still content that three months must pass before a patient who is being treated with medication has a right either to give their consent or to withhold it? Should it be three months before a patient is afforded the safeguard of a second opinion, when he or she is being forced to take such medication? I think not. I, for one, am certainly not content. Everything that I believe tells me that three months is too long to withhold a patient’s rights.”—[Official Report, House of Lords, 15 January 2007; Vol. 688, c. 492.]
The Government’s main argument in favour of a three-month period before a second opinion being needed is that it is required for the person’s condition to stabilise. The Mental Health Alliance does not accept that argument and the Government did not in the 2004 draft Bill, where only 28 days was deemed necessary before the review of a care plan by the new tribunal.
Will the Minister tell us what happened between the introduction of the draft Bill and this Bill for the Government to go forward with the requirement for checks and balances on a person’s medication? Newer medications are available and the guidance on medication is explicit on the time required for it to be effective. In almost all cases, that amounts to a fortnight.
In its recent report on the Mental Health Bill, the Joint Committee on Human Rights stated:
“Although an immediate second opinion is required for any administration of Electro Convulsive Therapy (ECT), in relation to medicines for mental disorder, the patient does not become entitled to a second opinion until three months have elapsed from the first time when medicine was administered during that period of detention... There is now a recognition that the effects of some psychiatric drugs may be as unacceptable to patients as ECT”.
We considered that point in the pre-legislative scrutiny Committee and our report stated:
“Three months is a long time to be in receipt of compulsory psychiatric treatment without the opportunity for review and supervision of the responsible clinician’s decision to impose that treatment, and we consider it is doubtful whether the Government’s obligation under Article 8 to provide effective supervision and review of treatment without consent is discharged by such a long waiting time”.
New clause 16 is a useful addition to the Bill because the Government have not made the case for why the delay should be three months. In three months, a lot of harm could be done to a patient on the wrong level or type of medication. The Government acknowledged that by stipulating 28 days in the draft Bill.
In the spirit of compromise and positive engagement that we have brought to bear on the Committee, the new clause is helpful and constructive in aiming to reduce the time span from three months to two. It is a compromise between what is there now and what the Government originally thought practical. On that basis, I see no reason why the Minister should not jump up and say, “Thank you very much, we will accept the new clause.”
Dr. John Pugh (Southport) (LD): I did not intend to speak, but I was struck by what the hon. Member for East Worthing and Shoreham said. A lot of this issue rests on the empirical claim, which the Minister can either dispute or not, that psychoactive drugs do the business, as it were, within two weeks. If that is the case, three months is a ridiculous period for assessment. However, we need to know whether it is the case.
I will raise another issue now, rather than make an intervention later. What is the process? How long does it take for a person on a scheme of medication, if only for two weeks, to be taken off it? What provision will be made for their care while they are being taken off medication? There is an issue with drugs such as Prozac if a person takes them for a short period and then suddenly stops. That is true not only for serious ailments that people would be sectioned for, but for obsessive compulsive disorder and so on. The person will become worse because the drug will have had some, but not the full effect. We are in pharmacological territory. We can argue about the merits of the particular legislative proposition in front of us, but the matter rests ultimately on clear, pharmacological distinctions and the advice that the Minister may or may not be receiving. I should welcome an indication of that advice.
The Chairman: Before I call the Minister, perhaps it would be helpful if I suggested that those who have tabled and spoken to new clauses might, depending on the Minister’s reply, of course, indicate whether they wish to have a Division on them later.
The Minister of State, Department of Health (Ms Rosie Winterton): I welcome you back to the Chair, Lady Winterton.
I am a little worried that the hon. Member for Southport occasionally puts the onus on me to make a clinical judgment, which I am incapable of doing. I hope that he will forgive me if I do not completely answer all his questions, unless something miraculous arrives about the pharmacological effects and how long Prozac takes to work. I am not an expert on that.
We have had a good debate on the important issues of recording patient requests and advance directives. I completely understand why those on the Labour and Opposition Benches are anxious to explore such issues.
New clauses 4 and 25 both deal with the important issue of patient involvement, particularly when a patient lacks the capacity fully to engage in consultation at the time a decision is being made, or when they would otherwise want specific people to know about their circumstances. Hon. Members are so concerned about the matter because we are discussing the sensitive issue of compulsion and how to marry together compulsory treatment with being able to take into account patients’ wishes. It is vital that proper patient involvement takes place. There is a valuable role for advance statements of wishes. However, accepting the new clause as it is worded is not the right approach. The fact that patients are liable to compulsory treatment does not in any way diminish the importance of encouraging them to express their wishes and engage in designing their own treatment. Indeed, that is probably a helpful way in which to get people on the road to recovery, as is the imperative to pay close attention to what they say. Treatment without consent does not—and must not—mean treatment without regard to the patient’s views. We must all be clear about that.
It is also fundamental that, when patients have made their views known in advance, those views should be treated with the same respect as if the patient were giving their view at the time. It is important that decisions and the basis on which they were arrived at are recorded. We would regard that as good practice. However, it is the wrong approach to put such detail in the Bill, particularly the extra procedural requirements that go with it.
2.15 pm
The Act contains many requirements to make proper records where decisions are taken that restrict patients’ freedom in the interest of their health or that of others, but I hope I can illustrate why the amendments are not the right approach.
New clause 4 says that advance decisions to refuse treatment must be taken into account. We are not disputing that, but adding a requirement in legislation to make a separate record and send it to the patient and their nearest relative would contrast starkly with the fact that treatment given against patients’ wishes expressed at the time is not recorded in that way. Because we are dealing with compulsory treatment, we would be making a big distinction between an individual who is sitting there saying, “I don’t want this,” while a clinician says, “Well, that is what is going to happen,” and an individual with an advance decision saying the same thing. We would be making a distinction by recording the decision to treat and giving the record to the patient and their nearest relative.
Creating a statutory obligation to record why a patient detained under the Mental Health Act has not been given the treatment that the patient requested would also differentiate it from other legislation dealing with treatment against patients’ requests. In no other field have we said that an individual can request treatment and be given an explanation why they cannot have it.
Dr. Iddon: I apologise, Lady Winterton, for addressing you incorrectly earlier.
Will my right hon. Friend respond to a point now, as it is relevant? I said that I thought that patients’ wishes were already covered in the Mental Capacity Act 2005, which would therefore have an impact on patients being treated in the mental health services.
Ms Winterton: I shall come to the Mental Capacity Act’s provisions on requests made in advance and why they can be overridden. It is always a clinical decision whether to offer a patient what they ask for. That is no more or less true of patients being treated for asthma than it is of people detained under the Act. It is also important to recognise that patients occasionally have firm wishes about what they do or do not want their nearest relatives to be told. There are times when patients do not want information to be shared, and we must recognise that. We are not trying to deny patients autonomy or to suggest that their views do not matter—quite the opposite.
New clause 25, tabled by my hon. Friend the Member for Bridgend, would provide for advance statements expressing a patient’s wish that information be shared with nominated people if they should become mentally disordered. I understand the intention behind the new clause. Often a patient might wish for certain people to have access in a crisis to information about them that they would rather not share unless and until their condition reaches such a crisis. Of course, it is often when people are unwell or in crisis that they are unable to express such a wish. When the patient’s wishes are known by those who care for them, such named people should be involved either in the consultation or in the sharing of information as requested. The Government have strengthened that in clause 10, which will change the 1983 Act by stipulating the kinds of issues to be taken into account.
Again, it is important that the issue is addressed in the code of practice. I will be more than happy to see how the issue is currently addressed, and to hear hon. Members’ views. There will be many circumstances in which a person will share with their GP, or with someone to whom they are close, their wish that in certain situations they would like certain people to be told certain things. Proposed new clause 25 covers only some such situations. The views of under-18s, for example, are outside its scope.
On the point made by the hon. Member for Tiverton and Honiton and by my hon. Friend the Member for Bolton, South-East, as I understand it, the new clause would mean that the person who shares their wishes with their carer must write it down for it to qualify as an advance statement. The requirement to share the advance statement with all concerned with the care of a patient—sometimes that could be against the patient’s wishes—is too wide. Hon. Members have made the point that people express their wishes in many and varied ways and at different times. We discussed that when dealing with the Mental Capacity Act 2005. There should not necessarily be one laid-in-stone, signed-in-advance statement because, as my hon. Friend the Member for Bolton, South-East said, things may change. Professionals should record and draw on patients’ wishes at the appropriate time, not necessarily always on a statement that was made at a particular point in time. That was why we discussed how to take an individual’s views when considering the 2005 Act.
Mr. Tim Boswell (Daventry) (Con): Will the Minister remind the Committee that a professional would in any case be obliged to consider the patient’s best interest and to act in accordance with it?
Ms Winterton: The point is that the 2005 Act sets out the parameters of advance decision making. We do not want to replicate that in other legislation. I would like to strengthen the measure in chapter 16A of the code of practice, which states that a decision to override an advance decision should be recorded in a person’s notes. I would like to explore and take advice on being firmer about giving reasons to the individual concerned. The issue of the nearest relative is difficult, because sometimes people will simply not wish for information to be passed on. Looking at that issue might answer hon. Members’ concerns. We would not wish, however, to create difficulties for the patient by, say, taking measures that exacerbated their situation. It is a matter of careful judgment, but I shall go away and look at it. I think that expanding the code of practice might solve hon. Members’ problems.
It will be a disappointment to the hon. Member for East Worthing and Shoreham that the Government have the same objections as before to new clause 16, which would reduce from three months to two months the period after which a SOAD must authorise the administration of medication when a person does not consent or is incapable of so doing as before, not least because there is already a power in section 58(2) of the Act to reduce the period by order. If we wanted to take that issue forward, it would be more sensible to use that mechanism, which allows for proper consultation. The change would be based on evidence and would be done at a manageable and sustainable pace.
Tim Loughton: I know that, which is why I mentioned it earlier. 24 years on, that order has not been used to reduce the time despite all the advances in medication. Therefore, why does it have to take more than 24 years to change that order? Why should we have any confidence that it will happen in the future? The change could happen with this amendment to the Bill.
Ms Winterton: The issues remain the same. We do not have the evidence to show that the current period is not the right amount of time for ensuring that medication is taking effect and if the medication is changed for ensuring that it has taken effect. That is not a human rights issue. The High Court recently refused leave for a judicial review of the European Convention of Human Rights compatibility of section 53 of the Act on the grounds that, inter alia, the three-month period is too long. We believe that three months provides an opportunity for the treating psychiatrist to reflect on the medications that are to be used on the patient. The likely efficacy of some individual medications can be determined in less than three months, but while a particular medication may have been started soon after the patient was detained, it is often a number of weeks into detention that the overall treatment plan evolves.
The hon. Gentleman asked what happened between the draft Bill and now. The draft Bill was different legislation with a different approach. At 28 days, the tribunal was required to authorise further detention. At that point, it could consider the care plan under that approach. The draft Bill was criticised for the tribunal system, which was said to be too cumbersome and too expensive. We reacted to that by saying that we would amend the 1983 Act.
There are resource implications. Up to 8,000 more SOAD consultant psychiatric hours could be needed to reduce the detention period from three months to two months. The second opinion doctor appointed by MHAC should have at least five years experience as a consultant psychiatrist. In 2005-06, 251 consultant psychiatrists were approved by MHAC. They made themselves available to be appointed to give the second opinions required by the Act. That role is ancillary to their usual role as consultant psychiatrists. They often have busy caseloads of their own. We must recognise that reducing the period would have quite severe implications.
We believe that the power is already in the Act. If we wanted to reduce the time, we would use the consultation procedures under the Act. We would ensure that the change was evidence based and done in a manageable and sustained way.
Dr. Pugh: Perhaps the Minister could clarify something for me. I do not see why completing the assessment in two months as opposed to three months necessarily leads to any more assessments. That would have more resource implications. Will she explain why we will have more assessments as a result of that change?
Ms Winterton: Because more patients are detained at two months than at three months.
I hope that with my reassurances over patient involvement hon. Members will not press the new clauses to a Division. I hope that, with my explanation on the change from three to two months, the hon. Member for East Worthing and Shoreham will withdraw his amendment.
2.30 pm
Tim Loughton: We have got to the nub of the issue. Despite all the waffle about the order already being there so that it could be looked at, the Government are not going to do it, because it is a resource matter. It is entirely down to resources. Resource availability is more important than the medical effect—adverse or otherwise—on the patient.
I know that the Committee wants to move on. At least we have the truth out of the Minister about the real objections to our amendment, so I do not propose to detain the Committee with a Division on new clause 16.
Sandra Gidley: I feel that the Government are not too far from what we wish to achieve with the amendments. The difference seems to be about whether it is in the Bill. I will withdraw the amendments, but will probably return with an amended form of them on Report.
Mrs. Moon: Like other speakers this afternoon, I am pleased to have some of the Minister’s reassurances, particularly on the respect that will be paid to patients’ views. I am pleased to hear that the concept of consultation and communication with carers will clearly be part of what the Bill seeks to achieve. I am pleased that the home practice will be looked at, to codify how that will be addressed. I am happy to withdraw new clause 25.
Dr. Iddon: I am sorry to be pedantic with my right hon. Friend, but will the Minister clarify how the clause on advance directives now contained in the Mental Capacity Act affects this Bill and patients’ wishes, if they have made an advance directive? Surely the Act covers the Bill?
Ms Winterton: The point of an advance directive is about refusal of treatment, not requesting of treatment. If an advance directive refuses a treatment, then, because we are talking about compulsory treatment, we would want to make sure that advance decisions or directives were taken into account. However, the ability to override the directive would be necessary if the alternative for the patient—an example we used this morning—might be that someone dies. That is where we get to with compulsory treatment. If a patient is refusing treatment and at the same time there is the ability to override that, then the same applies with an advance directive. Somebody might be refusing a particular form of treatment, but the powers of the Act can overcome that.
Question put and agreed to.
Clause 31 ordered to stand part of the Bill.
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