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The Minister of State, Department of Health (Lord Hunt of Kings Heath): I congratulate the noble Baroness, Lady Knight, on taking the opportunity to bring before us what are clearly very important matters. She has waited patiently for two days. I am sure that she thought she might be moving the amendment on the first day, but we have all waited with anticipation. I was very concerned about what she had to say. I was also very concerned about some
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As a number of noble Lords have anticipated, I do not think that amendments to this Bill or to other Bills are the way forward. I clearly understand the need for us to ensure that the health service is absolutely clear about the principles under which food and drink should be given, and that there should be no doubt whatever in the health service about that. I shall describe later how I think that might best be done.
I particularly would like to underpin the comments of the noble Baroness, Lady Finlay. These are often very difficult clinical decisions that have to be made by doctors. I also think that we have to be understanding about some of the issues they have to consider when considering the patient’s best interests.
I completely agree with the noble Baroness that food and water, however delivered, should never be withheld if it is in the best interests of the person to receive it, and that the offer of food and water by mouth should always be provided. I also say that assessments of an individual’s best interests must be at the centre of decision-making on behalf of people who lack capacity to make decisions. That is true now, and it will be strengthened by the Mental Capacity Act when it comes into force later this year. It is, therefore, the person’s best interests that we have to consider when considering these amendments.
A best interest assessment about treatment entails a thorough assessment of someone’s condition, their prospects of recovery, the pain they are suffering and any burdens associated with available treatments, including invasion of bodily integrity and interference with human dignity. Let us be quite clear here: it will not always be in someone’s best interests to have every available medical means of delivering nutrition and hydration imposed on them.
I would like to follow up the comments made by the noble Baroness, Lady Finlay, in that regard. Where a patient cannot swallow, water can be provided by intravenous drip, but food can only be delivered by a tube down the nose or surgically inserted into the abdomen. That must surely be a medical intervention. Doctors and families will need to decide whether such treatment is in all the circumstances in the best interests of the patient. In doing so, they must have regard to what they know about the patient’s own wishes.
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I understand that there are risks associated with artificial nutrition and hydration, as with any significant intervention. My understanding is that there is an infection risk. A fluid balance must be monitored to avoid waterlogging. Regular blood tests are needed to monitor the kidneys. It is common to have to manage diarrhoea and regurgitation. Nausea and vomiting may result in certain clinical risks.
There are circumstances where the provision of artificial nutrition and hydration might do more harm than good. For example, if the patient can no longer
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The noble Baroness, Lady Finlay, gave the example of a patient who desperately wanted a cup of tea, and said that in a risk-averse culture many practitioners might have been reluctant to give that patient a cup of tea. I understand that, but the noble Baroness also illustrated the reason why clinicians must have discretion in dealing with those issues, and why it is very difficult to describe in legislation how you would deal with such a situation. That is why some of the concerns raised today seem to be much more a matter of malpractice and negligence, rather than what is contained in the legislation. As the noble Baroness, Lady Barker, pointed out on Report in the Mental Capacity Bill, there is a world of difference between bad practice, which is inexcusable and in no way permitted by that Act, and the deliberate withdrawal of a patient’s treatment in that patient’s best interest.
The noble Baroness, Lady Knight, made some very serious allegations; she referred to patients being starved to death. I have great admiration for the noble Baroness; she was of great help to me when I was director of the National Association of Health Authorities, based in her constituency. I am very concerned to follow up any incidents that she knows of and am happy to meet her to discuss them. She has raised matters of clear and evident concern.
The noble Baroness also talked about problems in feeding patients in the health service more generally. She raised the issue of bedblocking—a term I deplore. The duty of the health service is to give proper care and treatment to patients. It may often be the case that in order to prevent patients becoming institutionalised, and to enable them to go home or into other settings where they could be as independent as possible, various approaches need to be taken to enable people to get up and about as soon as possible. The term “bedblocking” and its connotation is something that I cannot accept in any circumstance.
I have taken on ministerial responsibility for food, so I fully understand the challenge. In recent years the health service has sought to improve the quality of food and to deal with the issue of how patients are given food on the hospital ward. The concept of modern matrons was partly developed to deal with those issues to ensure that the nurse in charge of a ward had responsibility and authority. I will do everything that I can to ensure that that message is reinforced by the Chief Nursing Officer in regular communications with nurses.
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Several noble Lords, especially the noble Lord, Lord Carlile, and the noble Baroness, Lady Finlay, asked me: if legislation is not the route, what assurance can I give that the matter is taken seriously? We have asked the health and social care inspectorates, including the Healthcare Commission—the bodies responsible for ensuring that proper standards are provided in NHS facilities and in social care establishments and services—to put older people's dignity at the centre of their investigations.
I understand that those regulators plan to take greater account of how older people are treated, including whether they are given the help that they need to eat or drink. However, I accept that in the light of this afternoon's debate, I need to ensure that the messages given today are heard by those regulators loud and clear. I will do just that. Picking up the comment made by the noble Baroness, Lady Finlay, if there is doubt among medical professions about some of those important matters, I am happy to institute discussions with the professions to see whether more guidance is required.
A number of other points were raised. I think that it is the first time that the noble Lord, Lord Patten, and I have debated across the floor of a chamber since about 1977, but it was good to hear his intervention. My understanding is that the orange cards would be considered as a statement of the wishes of a patient under Section 4 of the Mental Capacity Act and should be considered as part of a best interests decision, but they do not represent a legal proposition that must be absolutely accorded with.
The noble Lord asked me about the UN convention. I answered an Oral Question in your Lordships' House as a DWP Minister a few weeks ago on that. Of course, the UK took a prominent role in developing the convention—both itself and as part of the EU negotiating team. When I answered the Question a few weeks ago, my understanding was that the implications of that for current legislation were being considered across Whitehall. I will send the noble Lord a note telling him where we have got to. There should be no doubt that we as a Government have very much supported the work in the UN to produce such a charter.
Lord Patten: The Minister is being extremely kind in his response, despite my unkind suggestion that he might ever once have been thought of as old Labour. Can he say whether the Government approve or disapprove—in general terms, not in a legal sense—of people as a statement carrying the card to which I alluded and of which my noble friend Lady Knight provided me with my first example?
Lord Hunt of Kings Heath: Without commenting on the wording of the card, which I have not seen, I state that, as a general principle, the more that we as individuals consider some of those difficult issues, the more we can come to a view ourselves and the more we discuss it with our relatives so that they know our views, the better. Yet when it comes to making what will often inevitably be a difficult decision, it can only be one of a number of factors when considering the best interest principle.
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The noble Earl, Lord Howe, asked about the implementation of the Mental Capacity Act. I think I have answered that but, essentially, part of it comes into force on 1 April. From then, the duty on the NHS and local authorities in relation to independent mental capacity advocates, and some directly related elements of the Act to support those arrangements, will be in effect in England, as will the code of practice and the criminal offence of ill-treatment and wilful neglect. From October 2007, all other elements of the legislation will be operational, including the new court of protection, the public guardian and the office of the public guardian, and the lasting powers of attorney.
While I do not agree with the legislative route that the noble Baroness proposes, she has raised some serious issues in relation to practice within the health service. I undertake to ensure that the appropriate actions are taken by those people responsible for inspecting the NHS. I will talk to the medical professions in the light of this debate. The clear message one wants to give is that the health service should be not a place of fear but a place of treatment and support. I believe that it is in the great majority of cases and that NHS staff do a very good job. Often they have to make difficult decisions. There is more to do and today’s debate had identified an area where we need to do more.
The Countess of Mar: When inquiring into these points, the Minister should take the opportunity to look at what is being taught to doctors and nurses about their position in law vis-Ã -vis their patients. I have heard it said that we cannot wash a patient because it might be an invasion of their privacy, and I suspect that the same might apply with moistening and cleaning patients’ mouths.
Lord Hunt of Kings Heath: I am certainly happy to look at that.
Lady Saltoun of Abernethy: How quickly can the Minister take the actions that he has said he will? This is now a matter of considerable urgency.
Lord Hunt of Kings Heath: There are a number of issues here. I have asked the noble Baroness, Lady Knight, to supply me with specific, concrete examples, and I am happy to meet her to discuss those. More generally, the role of the health and social care commissions is to inspect health and social care against standards. That is clearly a long-term programme of work but we want them to put a particular focus on the dignity of older people, on which much of this debate has centred. It is long-term work but I will ensure that the matters raised in this debate will be communicated as quickly as possible. I said that I am happy and willing to do so, and offer to write to the medical professions in the light of the debate today. I will do everything I can to ensure that some of these very important issues are communicated to the people who have the most authority.
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One must understand that this discussion is very much about practice. Inevitably, it can sometimes take time to improve practice. I do believe that practice is improving in general and, as we have discussed, in relation to food. As I said, clearly we need to ensure that it continues to do so, but I want noble Lords to know that the Government take this issue very seriously and that we want to ensure that the health service understands the messages that all noble Lords have sent in this debate.
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Baroness Knight of Collingtree: I appreciate more than I can say the very kind and generous way in which the Minister has replied to this debate. He has shown me an inordinate amount of thought, care and sympathy compared with that shown in some of the other debates, and I appreciate it so very much. I will be delighted to accept his invitation to talk with him about some of the evidence that I have received. I know that we will be able to do so before too long.
My noble friend Lord Howe mentioned medical treatment versus feeding. As I said, I do not know when this came in, but I do know that it is now an accepted rule, and the noble Baroness, Lady Finlay, was quite right to say that there is a big difference between feeding people ordinary food and drink and having to do so in the invasive manner that she described.
I was also asked whether any family had taken a hospital to court. Several families tried, but it was quite impossible to get any solicitor to take up a case against the mighty NHS. This was said when I was making inquiries and receiving evidence for my Patients’ Protection Bill. So many members of the legal profession felt that they were on an absolute hiding to nothing, because to take on the mighty NHS meant pretty well taking on a hopeless case. What was shocking about a recent inquest, which was reported quite fully, was that the hospital involved tried to lean on the coroner to bring about a certain response. It went so far as to tell him in a written submission, which I have seen—indeed, I read from it in the last debate that we had on this matter—to take no notice of the two medical experts who had spoken on this matter because they happened to be Roman Catholic. So far as I am concerned, if you are a medical expert, your views are entitled to be heard, whether you are Catholic, Muslim, Jew, Methodist, or whatever you are. This and many other such materials and pieces of evidence are what have worried me so much.
I very much agreed with many things that the Minister has said. Of course I realise that the amendment was not the ideal vehicle, but my concern has been to stop the slide into acceptance as the norm of helping a few people each week to die by withdrawing food and liquid. This shocks me so much, so although I intend to withdraw the amendment, I must tell the Minister that I will not leave this alone. I shall return to it—I shall keep on and on in one way or another—until patients in hospital receive the protection that they deserve from our health service. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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Clause 7 [Change in definition of “medical treatment”]:
[Amendments Nos. 11 and 12 not moved.]
Earl Howe moved Amendment No. 14:
“CHAPTER 1A Treatment safeguards(1) Section 58 (treatment requiring consent or a second opinion) of the 1983 Act is amended as follows—
(1) Subject to section 62 below, a patient under eighteen years shall not be given electroconvulsive therapy, unless a registered medical practitioner appointed as aforesaid (not being the responsible clinician) has certified in writing that—
(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 special training in child and adolescent mental health.””
The noble Earl said: In speaking to Amendment No. 14, I shall speak also to Amendments Nos. 15 and 16, which are important amendments about electroconvulsive therapy. Amendment No. 16 relates to Section 62 of the 1983 Act, which covers urgent treatment and states that when it comes to urgent treatment that may be considered necessary for various specified reasons, the special treatment safeguards in Sections 57 and 58 do not apply. As far as ECT is concerned, this means that there is no need for a second medical opinion if the patient has
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ECT has been around for a long time, but there is no doubt that over the past few years medical opinion and attitudes in relation to it have changed. There is now a consensus view—incidentally, it is reflected in the NICE guidance—that the wishes of the patient in relation to ECT should be of paramount importance and that valid and informed consent should be obtained before it is used. There is quite a spectrum of opinion about ECT. There are those who acknowledge that it has adverse side effects but who believe that these are generally tolerable if the treatment is likely to prove effective. However, there are those who feel equally strongly that the side effects are quite simply unacceptable. The side effects can include brain damage, severe confusion and considerable cognitive impairment. These adverse effects can be long-term. Some patients find that ECT works for them. Others do not find it acceptable or therapeutic and can have very strong feelings against it; often, they can be terrified of it.
The royal college is firmly against compulsion in ECT and has made the point that if a patient retains decision-making capacity, he or she cannot be sufficiently ill to warrant ECT without his or her consent on the grounds of it being a life-saving emergency. I believe that that point should weigh very heavily with us. Because ECT can have irreversible side effects on memory and cognition, it is possible to interpret Section 62 to mean that it should not be available as an urgent treatment except under Section 62(1)(a); that is, where it is,
But there is uncertainty over this. The wording implies that a form of treatment is not in and of itself irreversible or hazardous, but that it might be either or both of those things in any individual case. That legal uncertainty is most unsatisfactory for patients, families and clinicians. Some people have argued that ECT may be given legitimately under all the provisions for urgent treatment in Section 62, not just in subsection (1)(a).
However, there is now a very widely held view in the medical community that a treatment which is potentially hazardous and irreversible should not be given without a second opinion except in the most compelling circumstances; for instance where it is immediately necessary to save someone’s life. Further, if a patient has indicated in a valid advance directive that he or she objects to ECT, that express wish should be honoured. In circumstances where informed consent is not possible, for whatever reason, advance directives should be taken fully into account and the patient’s advocate or carer consulted.
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