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I am sure that we should support voluntary engagement in the ECTAS process, but is that enough? I do not think that it is. I really do not think that it is acceptable that people are being given ECT in clinics that have been or would be denied professional accreditation. I say that because the standards involved in accreditation are all to do with safety. The themes that have emerged in the first two years of the scheme’s operation among clinics that did not pass first time include lack of proper risk assessments; lack of trained supervision; absence of essential equipment to monitor the patient’s breathing during anaesthesia; no monitoring of adverse events; and an absence of operating protocols. In other words, a failure to meet standards necessarily indicates that absolutely essential requirements of safety, effectiveness and acceptability have not been met.

I do not know—none of us can know—what proportion of clinics that have not yet joined the scheme would fail to get accreditation. According to the royal college, however, the experience to date suggests that, for a clinic that is initially found to be substandard, it is not a difficult or expensive matter to bring its services up to scratch. I very much hope, therefore, that the Government will look most carefully and constructively at the proposal in the amendment. I beg to move.

Baroness Neuberger: I support the noble Earl, Lord Howe, in this amendment. I will not speak long, as we are running behind and the Whips are getting a little anxious.

There are two brief points that I wish to add to what the noble Earl has said. First, we have had a long discussion already about how ECT is viewed generally by the patient community. It seems to me key that, if we want to give those patients the sense that they are safe—some of them actually ask occasionally for ECT, as the noble Baroness, Lady Murphy, said—this accreditation is absolutely vital.

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There is not only a patient safety issue, but the issue of the treatment being seen to be safe and patients having trust in places where ECT is carried out.

The second point is the worrying statistic from the survey of those who are already members of the voluntary scheme that was shown at one of our briefings from the Mental Health Alliance. Because ECT is not a high priority in mental health services, only 28 per cent of those services have a training budget. Where ECT is being carried out and they have already joined a voluntary accreditation scheme, even they are not having regular training. It seems to me, therefore, that we all ought to support a compulsory accreditation scheme under the aegis of the Royal College of Psychiatrists, where training is a key part of how the treatment is carried out. I hope that the Minister will give us some comfort on that.

Baroness Murphy: The noble Earl, Lord Howe, and the noble Baroness, Lady Neuberger, have said it all. I know that there will be anxiety on the part of the Government about imposing the standards that create best practice, but I know how much mental health trust managers and clinicians would welcome the support for investment in these services. As we have already said, it actually does not take much money; it just means a concentration of effort.

The Royal College of Psychiatrists has done an enormous amount in the past 25 years to improve knowledge and training for delivering this small, but important, service, where safety must be absolutely paramount. It would do so much to give confidence if we could get everybody signed up. It would be another way to reassure patients that the treatment was taken seriously and that their concerns were being addressed. I urge the Minister to accept the amendment.

Lord Carlile of Berriew: Clauses 178 to 184 of the draft Bill of 2004 contained safeguards in relation to ECT. The committee considered those with care and came to the conclusion that something like the safeguards that were included in the Bill was required. The committee, at paragraph 368 of the report, which I will not read out, made a further recommendation in relation to ECT under the emergency procedure. I have not heard any reasoning why the Government have abandoned the cautious approach set out in the clauses in the previous Bill that I referred to. They seem to me to be entirely appropriate. We reached our conclusions in the committee on an evidence base. When replying, would the Minister explain to the Committee—if it is the Government’s view—why it is no longer appropriate to build in the protections in those clauses?

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Baroness Finlay of Llandaff: An area that has not yet been mentioned is the danger of anoxia from poor anaesthetic maintenance technique. Training in anaesthetics taught me that these patients can have just as compromised an airway and can go deeply anoxic quite easily, so it is terribly important that they

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are looked after and have their ECT on premises that meet minimum standards. It is worrying that half of the premises have not yet put in to register, because that suggests that they do not expect to meet the accreditation levels yet. I hope that the Minister, in his reply, will address the position of patients who are treated in private premises rather than NHS premises and how those premises are currently inspected for standards. The amendment would mean that prisoners would have to be moved to a place of safety, yet I cannot think of prison hospital facilities that are adequately equipped to give ECT in the very rare situation that a prisoner might require such treatment.

Baroness Masham of Ilton: This sounds really rather concerning. I ask the noble Earl how many substandard units there are in operation. Perhaps if he cannot answer, the Minister can.

Earl Howe: If I may answer that question a little later on, it may be helpful to the Committee.

Lord Hunt of Kings Heath: It is entirely understandable that noble Lords have raised the question of how services are, essentially, to be regulated, because a statutory scheme would amount to regulation—that is what this is about—where ECT is given to patients who are under compulsion. Clearly, given the concerns about the administration of ECT, it is important that there is a safeguard and that the public and patients can be given assurances that ECT will only be administered in the most appropriate way. I fully understand the comments that have been made. However, we have in the current arrangements an appropriate way of ensuring that services are provided effectively. I agree, however, that, if there is a problem in that some facilities are not applying for the voluntary accreditation scheme, there is an issue about how those organisations can be encouraged to do so.

Mental health providers, including those providing ECT treatment, are regulated by the Healthcare Commission, which is responsible for regulating the facilities in line with the standards for health service providers set by the Department of Health. That regulation, which has been part of the reforms that the Government have brought to the House over the past seven, eight or nine years, is about ensuring patient confidence as well as ensuring the quality of services. I pay tribute to the Royal College of Psychiatrists, which, in 2003, established the voluntary accreditation scheme to which the noble Earl, Lord Howe, referred, the ECT Accreditation Service. It is open to all clinics and hospitals in the UK and Ireland where ECT is administered. Participating clinics undergo a process of self-review and an external peer review over a period of six to nine months. The results are considered by the ECTAS accreditation advisory committee, which recommends a rating to the college’s court of electors. The scheme provides an assessment of the clinic against standards and, through feedback and advice, seeks to help clinics continuously improve while disseminating best practice throughout the sector.

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The Healthcare Commission values the information that comes out of the process, and it often forms part of its screening process for providers that have taken part in the scheme. Much information comes out of the college’s other accreditation scheme for acute in-patient mental health services or the reviews undertaken through the quality network for in-patient child and adolescent mental health services that also helps the commission in the process of assessing mental health service providers.

Noble Lords will also know that the Government recently published a consultation, The future regulation of health and adult social care in England. It seeks to ensure that we have a proportionate system of regulation. In that context, I believe that we have the best of both worlds. We have statutory regulation through the Healthcare Commission and the voluntary accreditation scheme run by the Royal College of Psychiatrists. I would not want to change that balance, because it is the best type of balance. Providers are encouraged as much as possible to do the right thing by bodies that are concerned with the area under consideration, with the Healthcare Commission being responsible in law for the overall regulation of healthcare providers.

We have a situation in which not all providers of services are voluntarily accredited through the royal college scheme. By its very nature, it is a voluntary scheme; therefore it would not be appropriate for the Government to dictate to individual providers that they should voluntarily subscribe to the scheme. However, I accept that it would be in everyone’s interest if all providers took advantage of the accreditation scheme, and I am willing to institute discussions between my officials and the royal college to see what could be done to encourage providers that do not take part in the accreditation scheme to do so.

Lord Carlile of Berriew: Before the Minister sits down, will he please answer my question? Why have the Government withdrawn from what they described in evidence to the Joint Committee as,

“a tightening of the existing arrangements for the administration of ECT, including the recognition of the need for consent”?

We have had no explanation of why the Government have abandoned the position that they took in the 2004 draft Bill and taken up the position that they are in today, which is very much non-statutory.

Lord Hunt of Kings Heath: I thought that in the previous group of amendments on ECT we debated the issue of consent. I said to the Committee that I was taking back the issue and would come back on Report with some ideas. This amendment is about the accreditation of services.

Lord Carlile of Berriew: I apologise to the noble Lord. I was absent for part of the previous debate, and I obviously missed that part. I am very grateful.

Earl Howe: I thank noble Lords who have spoken in the debate. I am grateful to the Minister for his reply, which is reasonably positive as far as it goes. He mentioned the work of the Healthcare Commission

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and its responsibility for regulating clinics. I wonder what work the commission has done in this area. Has it expressed any opinion about quality standards in ECT clinics? Under what standards do clinics operate, if they do not sign up to the accreditation scheme? Those matters ought to be looked at.

Lord Hunt of Kings Heath: Would the noble Earl, Lord Howe, find it helpful if, as well as asking my officials to discuss with the royal college opportunities to encourage more providers to accredit voluntarily, I made sure that the Healthcare Commission was made aware of this debate, so that it could see the importance of the issue?

Earl Howe: That is a helpful undertaking, and I am extremely grateful. I shall withdraw the amendment, of course, but I just wanted to reply to the noble Baroness, Lady Masham. As I said earlier, the most recent figure that I have is that 78 clinics had joined the voluntary accreditation scheme, but that figure is more than a year old. However, I can tell her the approximate rate at which clinics appear to fail the test. Of the first 37 clinics to be accredited, nine initially had their accreditation deferred but were then awarded it once the necessary improvements had been made. From that statistic, one can see that it is by no means a foregone conclusion that a clinic will pass the first time round, which underlines the concerns that I was expressing. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Howe moved Amendment No. 18:

After Clause 7, insert the following new Clause—

“Administration of medicine

In section 58(1)(b) of the 1983 Act (treatment requiring consent or a second opinion) for “three months” substitute “28 days”.”

The noble Earl said: Amendment No. 18 takes us once again into serious and important territory. It relates to what is known as the three-month rule. The 1983 Act entitles the medical practitioner to treat a patient with medication for his or her mental disorder without the person’s consent—indeed, in the face of his outright opposition—for a period of three months. Before the end of this period, Section 58 of the Act requires that a second medical opinion must be sought from a doctor appointed under Part IV before treatment can continue. A second opinion is required under two sets of circumstances: either when the patient does not consent, assuming he has capacity; or where the patient lacks capacity and the responsible clinician considers that the treatment should be given. What this amounts to in the Act is an exceptional power to override the choice of those patients who retain the capacity to make their own choices. In no other medical context would such a power be countenanced. Theoretically, the responsible clinician should seek the consent of the patient and listen to his or her views, but all too often this does not happen.

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The Mental Health Act Commission has reported as follows:

“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”.

That is from the commission’s biennial report for 2003-05.

In fact, the commission finds when it visits hospitals that the issue of medical treatment is a key one for patients. It is an area in which complaints are frequently made. Patients are reported as being dissatisfied with the side effects of their medication and with the medication that has been prescribed without their own preferences being taken into account. Let me remind the Committee of some of the side effects that these powerful and potentially toxic chemicals have on those who take them: serious weight gain, leading to obesity; diabetes; impotence; disabling and embarrassing movement disorders; lethargy; and feeling drugged up all the time. Those are just a few examples out of a very long and pretty unpleasant list.

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Quite apart from the bad side effects, a patient’s diagnosis is hardly ever straightforward. It can change several times over the period of detention. Medication not uncommonly needs to be changed. Dosages need to be changed. The whole business of prescribing the right drug in the right amount is very difficult. I would argue that these are factors that militate strongly in favour of careful and prompt oversight of any medication given in these circumstances. Three months of being treated without consent or with a lack of capacity to consent to treatments, which may be causing harm, is simply too long. There is a power in the 1983 Act for the Secretary of State to reduce the period by order. However, this has not happened. Under the 2004 draft Bill, there would have been tribunal authorisation of compulsory treatment by 28 days. In keeping with that, I am proposing through this amendment that the period should be reduced to 28 days.

Once again, I feel that I should quote the views of the Mental Health Act Commission, from its 11th biennial report:

“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 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”.

Let us seize the initiative and take the opportunity now to give patients an extra safeguard. It is one that I believe will have enormous impact on their health and well-being, without, as far as I can see, necessitating any cost implications. I hope that the Minister will share my view that it is time for the change to be made. I beg to move.

Baroness Neuberger: I support everything that the noble Earl, Lord Howe, said and simply add one other piece of evidence from the many we had in

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support of this amendment. The National Patient Safety Agency’s report, Building a Memory, records some instances where the drugs have seemed somewhat eccentric. We will be talking about that issue later on, but the report particularly suggests as the sort of things where people felt uncomfortable with the drugs that they were given such examples as psychotropic drugs prescribed above the normal amount in the formulary and the use of anti-epileptic drugs as mood stabilisers. The quotation that we got about being drugged up all the time is going to resonate in our ears for a long time.

Reducing the period from three months to 28 days is not a major thing for the Government to do. It would make a huge difference to how patients feel in terms of safety. They would be more likely to seek treatment if they did not feel that, compulsorily, they might be given for three months treatment that they actively dislike and that makes them feel very unpleasant. I hope that the Minister will see reason in this amendment and in those grouped with it, and perhaps see whether he can do something.

Lord Patel of Bradford: I rise to speak to Amendment No. 18. I have great sympathy with the purpose of this amendment and great interest as chairman of the Mental Health Act Commission, which was mentioned by the noble Earl, Lord Howe.

It will be useful to go back a bit. The justification for the current three-month period, during which treatment with psychiatric medication can be imposed upon a detained patient regardless of consent, derives from the words of the Minister during the 1982 Standing Committee debates on the Mental Health Bill, as it was then. Practitioners in the field today who seek advice on or interpretation of the statute will find the words of that justification preserved in the Mental Health Act Manual:

“The three months gives time for the psychiatrist to consider a treatment programme which suits the patient. Three months seems to fit best with both clinical experience and clinical practice. It is long enough to allow a proper valuation and assessment of what, if any, long-term treatment may be needed. It is also short enough to ensure that a patient’s consent, or a second opinion, is obtained before a long-term course of drug treatment gets too far ahead”.

Noble Lords may think that that is fair enough. But 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. I suspect that that is also the feeling of this Chamber. In the 25 years since the argument was made, the general recognition of and sensitivity towards human rights in the healthcare context has come a long way. I add my support to the amendment. However, I am not ignorant of its possible consequences and I hope that the Minister will forgive me for anticipating his response to the amendment, as I suspect that his greatest concern will

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be with its resource impact. It is certainly the case that reducing the period before which patients are entitled to a second opinion will cause a rise in the numbers of second opinions. As the chairman of the body responsible for administering those second opinions, this gives me slight pause—but it is only slight.

In any case, the number of second opinions has significantly increased over the lifetime of the Act by some 250 per cent. The Mental Health Act Commission’s last biennial report speculated on the possible reasons for that rise, one of which was a growing appreciation and care by clinicians to consider whether apparent consent from a patient was genuine, rather than being based on inadequate understanding, capacity or freedom of choice.

So far, the administrative burden of the safeguards provided by the 1983 Act has already increased dramatically over the lifetime of that Act. The Mental Health Act Commission has managed that burden and the Department of Health has, in the main, funded it. I urge the Minister to be cautious in rejecting this amendment on the grounds that its costs are uncertain. We should welcome the extension of an existing safeguard over a wider population of those who are treated without consent and be prepared to meet the costs that safeguards may entail.

Lord Bragg: I support Amendments Nos. 18 and 19, tabled by the noble Earl. We now know that medicines used to treat mental disorder can have extremely serious adverse effects and are not always effective. Comments made to MIND include:

“I was given haloperidol. It made my limbs stiff. It gave me anxiety. I was suicidal”.

Another stated:

“I want the Government to realise that depixol and other antipsychotic drugs can cause apathy ... It was as if my soul had died”.

The severe side effects mentioned by the noble Earl, Lord Howe, can be added to. It is a long list.

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