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It would be worth exploring how we can address some of those questions more fully and provide the necessary safeguards in respect of an across-the-board introduction of a mental capacity test, as suggested by Amendment No. 14. The indeterminate nature of the concept of mental incapacity could make it an uncertain legal threshold in this important context. Nevertheless, while raising these broad issues, I support without reservation those parts of the amendments that would result in more effective safeguards in the use of ECT for under-18s.
Thankfully, I do not believe that ECT is used widely for children and young people. The last government survey of 2001-02 counted only four patients between 16 and 18 to whom ECT was administered. However, although the numbers affected appear to be low, we must not be complacent about the need for effective safeguards when such severe treatment is considered for young people. Over the past three years, the Mental Health Act Commission has been aware of nine patients under the age of 18 for whom ECT has been considered, although our data is unlikely to be complete, as the Mental Health Act Commission becomes aware of such patients only if, first, they are detained under the Act's powers, and, secondly, if they cannot, or will not, consent to ECT so that a second-opinion doctor's certification is required. Of course, this amendment would mean that a second-opinion doctor would have to visit all patients under 18, whether or not they were deemed to consent. I welcome that aspect.
I am sure that the Committee will share my concern at the lack of complete data, and I shall be returning to this issue when I speak to my later amendment on notifications to the Mental Health Act Commission. But I am certain, as noble Lords would expect, that the nine young people whom we know about, for whom ECT was reviewed, were suffering from the most distressing conditions and were generally in a very desperate state.
In preparation for today's debate, I was able to read the doctors' reports on visits to five of these young people over the past two years. The youngest was aged 15, one was 17 and the other three were 16 year-olds. Four of the five were teenage girls. Their diagnoses all involved severe depressive psychoses, with at least a tentative diagnosis of anorexia nervosa in three of the girls, although all four were being fed by nasogastric tube as a consequence of their refusal of food and fluids. None was deemed to have the mental capacity to give or withhold valid consent to
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For two of those five patients, the second-opinion doctors declined to authorise ECT on the grounds that the situation was not yet desperate enough to warrant it, or that other alternative treatments had not yet been exhausted. For example, the fact that one patient was accepting food and drink was cited as a reason why, in this case, ECT should not be administered. In another case, the second-opinion doctor specifically recommended that, if ECT were to be considered again, the advice of a psychiatrist with appropriate expertise should be sought, and that this should take place prior to any request for a further statutory second opinion through the Mental Health Act Commission’s offices.
In three cases where ECT was authorised, a single course, which is 12 treatments, was given. In the fourth, which concerned the youngest—and from the records that I have seen, the most desperately ill of all the patients—a total of 20 ECT applications was authorised. This 15 year-old girl was tormented by terrible delusions of becoming contaminated through food, or even through contact with others who had eaten. She frequently needed to be under close supervision to prevent her from severely harming herself and she was extremely withdrawn. I do not doubt the severity of this case and the ECT was reported to have had an initial positive result, but that was short-lived. In fact, the progress she has made since is largely attributed to a combination of psychiatric drugs and family therapy, which has continued throughout her hospitalisation.
It seems to me that wherever there is doubt about the long-term benefits of a treatment there must be greater caution in its use. That is never stronger than with respect to children and young people. I hope that the Committee will agree that decisions to use ECT in such cases should be taken only with the greatest care and deliberation. If we can strengthen the safeguards to ensure that, I think we should do so. I sincerely hope that the Minister will agree with this, whether or not he is prepared to accept the exact wording of that part of the amendment dealing with ECT for children and adolescents.
I have spoken mostly to that aspect of the amendments because I believe that the safeguarding of children and young people must be considered separately from that of adults. I most strongly urge the Government to accept that. If they cannot accept those aspects of the amendments as they stand, I urge them to come back with a proposal that will have a similar effect.
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Lord Hunt of Kings Heath: It is entirely understandable that there should have been a debate about ECT which reflects both historic concerns about its previous extensive use—and, in many cases, poor clinical practice—as well as more modern approaches where ECT may be used. Clearly there are
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Equally there is evidence that ECT can be effective in certain circumstances in the treatment of some psychiatric conditions, such as depression, schizophrenia, catatonia and mania. It is a treatment that I understand to be especially useful in dealing with severe depression, in particular where other treatments such as medication may not be ideal. We have to establish the appropriate balance between ensuring that treatments that may be effective are available for the benefit of patients and ensuring that sufficient safeguards are in place.
These amendments would place new restrictions on the use of ECT. They would stop clinicians administering ECT to patients detained under the Act who have the capacity to consent to it but who do not consent, even in emergency cases. In other words, the potential effect of the amendments is to take away from clinicians a way of saving a person’s life in certain circumstances, preventing their condition from seriously deteriorating, alleviating serious suffering or stopping them behaving in a violent or dangerous manner unless or until the patient loses capacity to consent to ECT.
I noted what the noble Earl, Lord Howe, said about the interpretation of Section 62 and I will reflect on that. Perhaps he would find it helpful if I wrote to him to clarify the points that he raised.
Amendment No. 16 would allow for detained patients who lack capacity to consent to ECT to be given ECT, without a second opinion, only where it is immediately necessary to save lives. I am advised that there may be a problem with that in the case of a patient who is taking no sustenance because of their severely depressed state and is at risk of starving as a result. In those circumstances the doctor cannot act to prevent any deterioration in the patient’s condition but must wait until the patient is at death’s door. On that basis I am advised that there may be circumstances where ECT would be the only appropriate treatment for some patients.
Amendment No. 14 further provides that no child or young person under 18 may be given ECT if they are capable of consenting to it and do not. If they lack capacity to consent to it then, unless it is immediately necessary to save their life, they may be given ECT only with the approval of a person with parental responsibility or if the High Court decides it should be given. Even where the patient or the parent consents, the treatment must still be approved by a second-opinion appointed doctor (SOAD). Either the SOAD or the doctor in charge of the ECT would have to be a child and adolescent practitioner.
Before I go on to discuss the issue of parents providing consent to treatment with ECT, I want to note that, by amending Section 56, Amendment No. 15 will make those provisions apply to all patients under 18, regardless of whether they are detained under the Act. Clause 27(2) would otherwise replace the current wording of Section 56 and so leave the current amendment addressing the wrong text. Members of the Committee have signalled their intention to oppose Clause 27. I mention that in case
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It is clearly of great importance that, where ECT is used for children and young people, there are sufficient safeguards. I have listened to noble Lords’ comments on that. As they have said, ECT is given very rarely to children. When it is used, it is almost always given to older children—those aged 14 or older. Of course the Government understand the concerns expressed about the use of ECT for children, but as the noble Baroness, Lady Murphy, said, there may be a few cases where it can be of real benefit, often life-saving. That was the view of the Royal College of Psychiatrists in evidence to the Joint Committee examining the 2004 draft Bill.
It is already the case that a child patient who is subject to the Mental Health Act can be treated with ECT in non-urgent circumstances, without a second opinion, only if he is capable of consent and does consent. There is no provision, if the child either cannot or does not consent, for a person with parental responsibility to consent on his behalf. Instead Section 58(3)(b) requires a SOAD to certify that ECT should be given.
For children who are not detained but are in hospital as informal patients, the Government have thought it right to enable under-18s who are capable of consenting to ECT to do so without the need for a statutory second opinion. That is on the basis of those young adults having the ability to make their own judgment and therefore consent to such treatment. Having a statutory second opinion would mean being interviewed and examined by a second doctor whom they probably do not know.
Having listened to the arguments put forward by noble Lords, I am very willing to go back and look at the safeguards for children. I cannot give a commitment that I will come forward with a sympathetic response but I would like to take some time to make sure that we have got this right. I have listened to noble Lords in relation to the safeguards. I do not know the extent to which they would also accept that there is an issue about young people who are competent to make their own decisions. I wish to examine that balance, but I will come back with a response on Report.
Let me turn to the other question regarding consent. We come back to ECT and its value and uses. Many oppose ECT. We are aware that some psychiatrists believe that ECT risks having a long-term or permanent effect on the faculties of patients, but our view is that there is no consensus on that point. We acknowledge that the Royal College of Psychiatrists supports prohibiting the giving of ECT to a patient who can consent but refuses to do so. A number of noble Lords have referred to the NICE guidance in this area, which recommends:
“Someone who is mentally capable of making a decision about their treatment should decide, after discussion with the doctor, whether or not they want to give their consent to have ECT”.
While some psychiatrists do not treat such patients with ECT, many do. In 2003 and 2004 the Mental Health Act Commission reported 1,385 requests for
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We are concerned that the tenor of the amendments is to treat ECT as if it were barely a legitimate therapeutic treatment at all. That might unduly limit the options not only for clinicians, but also for patients. Some patients welcome ECT, whether because they think of it as a genuine last resort or because they prefer it to medication. These amendments would deny those patients what they would have chosen for themselves just because they happen to lack capacity at the time in question. Given that we are talking about situations of immediate necessity, it is to be expected that very many patients will lack capacity.
We see a problem of clinicians not being able to respond with ECT to crises, even if patients have made it plain, in some form of advance statement, that ECT is perhaps what they would want should their condition begin to deteriorate markedly. Even in the case of patients who retain capacity to consent, we think that these amendments may well go too far. We are talking about patients who are detained against their will in a framework of legislation which, as the Committee will know, we believe should be based on needs and risks, not on the patient’s decision-making ability. We worry that these amendments might sometimes force clinicians to work with one hand tied behind their back at the very moments of crises when they most need to be free to respond with the treatment that their clinical judgment tells them is best.
These amendments would mean that detained patients could not be given ECT even where it was an immediate necessity, if they have the capacity to consent but do not. They would limit immediately necessary ECT without a second opinion for other detained patients only in life-saving situations. That would impose a significant new restriction on what may be done under the Act to respond to emergencies. That is what makes us cautious. However, I am conscious that in the 2004 draft Bill we were going to give detained patients the right to refuse ECT where they had the capacity to do so and provided it was not an emergency. In the light of that—
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Baroness Murphy: Before the noble Lord finishes, I should like to press him on Section 62 emergency treatment and remind him why it is given. Emergency ECT is given not to affect the underlying cause of the depressive illness or suicidal ideation; indeed, suicidal thoughts often get worse after emergency ECT because you are speeded up by the process. 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
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Lord Hunt of Kings Heath: I am not in an enviable position as a Minister trying to refer to specific treatment cases when such experts are present, and I attempted to resist doing so. Obviously, I am reliant on advice that I am given on certain examples which may concern the Government vis-Ã -vis amendments tabled, but I do not seek to hide behind that advice. In relation to Section 62, there is no way that I could condone bad practice. I shall do everything that I can to ensure that it does not happen.
When the noble Baroness intervened, I was going to say in conclusion that I am conscious that in the 2004 draft Bill we were going to give detained patients the right to refuse ECT where they had the capacity to do so and provided it was not an emergency. I am very willing to look at this further and to listen to further argument. We are certainly willing to consider further the question of allowing patients subject to compulsion to refuse consent to the use of ECT in non-emergency situations.
As I said, I wish to look again at whether the safeguards for children are sufficient. I will come back to that at a later stage.
Earl Howe: I am grateful to all noble Lords who spoke in this debate. I am particularly grateful for the support that they gave to this group of amendments, conscious as I am of the extent of the professional expertise that exists on the Cross Benches and the very considerable lay knowledge among other speakers. The near-unanimous support for Amendment No. 15 and the part of Amendment No. 14 dealing with children was welcome. Until the Minister’s final sentences, I had thought that his reply was rather less than warm, and I was becoming despairing and not a little disappointed. However, it is good of him to say that he will take the issues away and look at them. I could have wished for more than that, but I am grateful for those small mercies.
I simply ask the Minister if he would be courteous enough to read the speeches of the professional contributors to the debate, as they carry enormous
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I remain somewhat puzzled that the Government changed their mind about the right of patients with capacity to refuse ECT. I know that the Minister said that he would look at the issue again, but I had hoped that he would say that, having considered the issue in the context of the 2004 draft Bill, there was really no difficulty about it and that he would readily draft an amendment. So I am puzzled about why the Government are so hesitant. The understanding among practitioners is that a capacity test is perfectly able to deal with the specific circumstances of different treatments, including ECT.
We have debated the issue for nearly an hour, and it is time to move on. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 15 and 16 not moved.]
Earl Howe moved Amendment No. 17:
Electroconvulsive therapy (ECT) shall not be administered except in a service that has been accredited for that purpose by the Royal College of Psychiatrists.””
The noble Earl said: We come now to an amendment which, I hope, the Government will be sympathetic to. It would ensure that ECT is only delivered in a service that meets acceptable standards.
I shall remind noble Lords who may not know that ECT involves giving a patient a general anaesthetic and passing electricity through their head. The purpose is to cause a seizure, which is intended to have anti-depressant effects. In order to have that effect, the dose of electricity must be enough to cause a seizure, but it should exceed that threshold by as little as possible if adverse cognitive effects are to be minimised. A systematic review carried out for the Department of Health stated that the more effective forms of ECT tended to cause more memory impairment.
The potential for harm relates not just to cognitive damage, but to psychological damage as well. ECT, for many people, is frightening and distressing. The fears that people have are unfortunately borne out by the evidence. The noble Lord, Lord Bragg, mentioned the work of Mind, with which I know he is closely involved. A Mind survey, six years ago, of patients’ ECT experiences, found a high level of unwanted side effects. Of those who had had ECT in the two years prior to the survey, 40 per cent reported permanent loss of past memories; 36 per cent reported difficulties in concentrating; 27 per cent reported an inability to remember new information; and 49 per cent said that they would not agree to have it again.
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Respondents from black and ethnic minority communities were more likely to have received ECT without consent, and they had a more negative view of it than the overall sample, with 50 per cent finding it unhelpful, damaging, or severely damaging in the short term, and 72 per cent in the long term. It is therefore clear that, if ECT is to be given, it has to be given in line with best practice—not least in the way that information is provided to patients. I did not mention that, in the Mind survey, 34 per cent of respondents said that they were not aware that they could refuse to give consent to the treatment. The information that needs to be promulgated should also be about people’s rights.
Despite the hazards associated with ECT, the Mental Health Act does not prevent it being administered in clinics where conditions are unsafe and staff are inadequately trained or supervised. The ECT Accreditation Service (ECTAS) was set up by the Royal College of Psychiatrists in 2003 to improve quality standards. I understand it to be a thorough and soundly based scheme, but it is only voluntary. At October 2005, 78 clinics had joined it, and that is about 40 per cent of ECT clinics in England, Wales and Ireland.
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