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People often know what has previously helped or harmed them and know how they are currently affected by what they are taking. They are often self-experts in this area. People may be willing to try different approaches from those being considered. These days, three months is far too long for trial treatment before requiring consent or a second opinion, as has been pointed out. Up to a point, I agree with the noble Earl, Lord Howe, that the period should be reduced to 28 days; I would like to see it reduced further. The law should redress the imbalance that is by necessity involved in compulsion, by requiring clinicians to have regard to patients’ wishes. That would also help clinicians to find the best treatment for the people concerned. I hope that my noble friend the Minister will take the amendments on board.

Baroness Chalker of Wallasey: I support the amendment tabled by my noble friend Lord Howe. The Minister will remember from our debates some years ago a tragic case to which I referred him. It related to the very fact that one could not review within three months the drugs prescribed in a case. It

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caused a great deal of pain and suffering, not only to the patient, but to the patient’s family who were watching, because they were totally disempowered from altering the situation.

We have moved a long way since I was in the DHSS, back in the early 1980s, when the current Act was formulated, and then passed, just after I left the department; but it would be sensible, in terms of the drugs bill and the needs of the patient and their family, to carry out a review long before three months. I support the 28-day period that my noble friend has proposed and I hope that the Minister will look at that extremely carefully, even if he cannot agree tonight, because there is a wide gap between today’s situation and the one that we faced way back in the early 1980s.

Baroness Meacher: I had not planned to speak to this amendment but wish to make one point. I was involved in the development of the 1983 Act during its passage through Parliament. At that time, we assumed that people would spend the period that we are talking about in hospital while under treatment. Now it is important to consider the interconnection between the different clauses of this Bill. We are now talking about people being given community treatment orders; certainly in my trust in east London, many people may remain in hospital for quite a brief period.

I ask the Minister to consider what it would feel like to be a patient who had been given a cluster of treatments that have these very unpleasant side effects and then be placed on a community treatment order, possibly by someone who is not even a doctor, left on the treatments without access to a second opinion, and without the day-by-day access to doctors whereby one could say, “Look, doctor, I feel dreadful; all sorts of horrible things are happening to me”. At least you are under surveillance in hospital. That would not be the case if you were in the community. I ask the Minister carefully to consider the implications of that if community treatment orders are brought in.

Lord Hunt of Kings Heath: Of course I will give careful consideration to the debate. The noble Earl, Lord Howe, said that patients were not sufficiently involved in decision-making and raised issues relating to the side effects of drugs on patients and the lack of explanation. I agree that those are matters of concern. They are covered in the draft code of practice and in the principles that we have debated, which are set out in Chapter 1—the participation principle and the communication principle. I accept that noble Lords have made relevant comments about the safeguards needed in these situations.

The Government think that the three-month period is, and remains, appropriate. Although the argument given in 1982 was similar to the view that I shall express tonight, it is no less valid. Indeed, the elements of the 1983 Act on which we are building this new legislation testify to the robustness of many of the provisions contained in that Act. The three-month period is considered appropriate because of the time that it allows for an optimum regime of

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medication to be identified—or, at least, for certain options to be ruled out before a certificate is needed. Different medications need to be tried before the most suitable one is identified.

There are practical issues involved. It would surely be unnecessary and ineffective to require certification for ongoing treatment before the period needed to determine that that treatment was the best option had elapsed. For instance, some medication, such as anti-depressants, can take as long as four weeks before it begins to take effect. The amendment would require SOADs to consider approving the continuation of a treatment whose benefits to that individual patient had not yet been demonstrated. The doctor may, soon after the SOAD visit, identify that a different treatment is required for that patient, and so the process would begin again. Several certificates might be needed in succession, each one requiring the patient to be examined by a SOAD, particularly if the patient cannot or does not consent. While a second opinion is clearly a valuable safeguard, some patients might find it intrusive or upsetting, especially if it happens more than is necessary.

The Government are not persuaded that the limit should be reduced from three months to 28 days as suggested in the amendment. It is worth making the point that, as the noble Earl, Lord Howe, suggested, the legislation would allow that period to be so reduced. It is not so much a matter of the legislation as of the actual practice.

I will also comment on costs. The noble Lord was very tempting when he said that, because the workload has increased over the years—in essence, since the original Act—we should just accept, I guess, a continued increase in workload as a normal organic development. I understand that. But in considering this further, surely the noble Lord has to consider the implications for service providers. Our initial analysis shows that it would increase the number of certificates required every year by more than 6,000, adding on to a baseline of 11,000 a year. We think that about 20,000 extra hours of psychiatric time would be required in a year. We are not convinced either that that would be the right use of resources or that the case has been made for 28 days. On that basis, I hope that this amendment will not be pursued.

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Baroness Barker: Will the noble Lord share with the Committee the basis on which that calculation was made? Perhaps he could write to us. My reason for asking that is that the joint scrutiny committee had enormous difficulty in accepting some of the department’s estimates, some of which simply did not stand up to scrutiny. I am not suggesting that that is the case here but it would be helpful to know the basis for the calculation.

Lord Hunt of Kings Heath: In fairness, these are estimates, and detailed work would need to be done in relation to the amendment. Can I accept the challenge to write to the noble Baroness and other noble Lords with the information I have that backs up the figure I mentioned?



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Earl Howe: I am immensely grateful for the authoritative support of the noble Lord, Lord Patel of Bradford, and the support of the noble Lord, Lord Bragg, my noble friend Lady Chalker, and the noble Baronesses, Lady Meacher, Lady Neuberger and Lady Barker.

In my naivety, I had thought, along with the noble Baroness, Lady Neuberger, that this was not a major thing for the Government to concede. It appears all of a sudden that it is a major thing, despite the fact that in the 2004 draft Bill we had a proposal not so very different from it. Time and again, Ministers are giving us answers that are diametrically opposite to the position that is implicit, or indeed explicit, in the 2004 draft Bill. I am at a loss to know why. I really had hoped to be pushing at an open door with the amendment. It might have been a coincidence that we heard from the Minister about the cost implications in some detail. My suspicions are raised yet again that perhaps, in part, that lies behind the Government’s resistance to a number of our amendments.

Lord Hunt of Kings Heath: It would be unfair to say that some of the changes we are making as a result of this Bill are a cost-reduction exercise. For instance, in the earlier debate that my noble friend responded to, we talked about the role of clinicians. It was suggested that decisions about developing and extending the role of health professionals were made on cost grounds. I would refute that. We are seeking to make the best use of the many talented professionals we have. I think that it is reasonable for the Government to say, when amendments are put forward, that there may be a cost implication; it may be an opportunity cost in terms of professionals’ time. It is fair to put that as an issue to noble Lords arguing to reduce the limit from three months to 28 days.

Earl Howe: Of course I accept the point put in that way. The noble Lord, Lord Patel, was surely right: clinical opinion, like science and technology, has moved on since 1983. I believe that we need to take account of that.

This issue is a matter of legislation because over 20 years the three-month limit has remained unchanged, despite the power in the 1983 Act given to Ministers to reduce the period. Nevertheless, we have gone as far as we can with this issue this evening. With thanks once again to noble Lords who have participated in the debate, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Howe moved Amendment No. 19:



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The noble Earl said: As we proceed through these debates there is one fundamentally important truth that we should never lose sight of: the particularly special vulnerability of mental health patients. It could be argued that all patients, no matter what their illness, are vulnerable to some degree, but those in need of treatment for mental illness are in a class apart. Emotionally they are often debilitated, they frequently find it hard to express themselves coherently and they can easily feel intimidated. Often I hear it said that patients who suffer from a mental condition have a feeling of worthlessness, as a result of which they are not inclined to assert themselves or to stand up for their own interests when otherwise they might have done so. All too frequently they are subject to the kind of paternalistic assumptions that elsewhere in medicine are thankfully becoming rarer; in particular the assumption that respecting autonomy is not all that relevant when that patient’s mind is disturbed. The wrongness of that assumption needs to be stated and repeated. Most people, even when mentally ill, and frequently when very ill, are perfectly capable of rational thought and are therefore perfectly capable of making up their own mind about things. In practice, though, that is not how many mental health patients are treated.

It is against that background that I invite the Committee to consider the amendment. In it and, incidentally, in the one that follows, we confront head-on the twin principles of patient autonomy and transparency of decision-making, and the need to maximise both as far as practically possible.

Psychiatric medication can have very serious side effects. These can include painful muscle spasms, involuntary movements, loss of energy, weight gain and all the things that we talked about earlier. There is surely no other field of medicine where such adverse effects of routine treatment would be tolerated, but it is surprising how often clinicians are prepared to take them for granted when treating patients with mental illness.

The joint scrutiny committee, taking evidence on the issue, heard witnesses talk about patients being browbeaten into taking medication, regardless of their wishes, or simply having their express wishes ignored. Yet it is often the patient who knows which treatment works best for him and which ones do not work or are positively harmful. It might be thought

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that a duty on the part of the clinician to have regard to the wishes of the patient is the kind of thing that would sit better in the code of practice than in the Bill. I disagree. The code of practice has an important part to play in how the Act is implemented, but the particular vulnerability of mental health patients and the gravity of administering treatment under compulsion mean that we need to go further.

Putting in the Bill a duty for clinicians to have regard to the wishes of the patient would achieve three things: it would improve patient autonomy and the patient’s feeling of being involved in his own treatment; it would increase the chance of a patient agreeing to treatment, thus avoiding compulsion altogether; and it would improve the safety and effectiveness of treatment because the patient will often know what has previously helped or harmed him. A doctor may have a very clear idea of what is therapeutically beneficial and feasible for an individual; however not only is it right that he should take the patient along with him if he can, but the chances of the treatment proving effective are instantly much greater if he does so. If, on top of that, the clinician is required to record the treatment requested by the patient—and, if necessary, the reasons why that treatment cannot be provided—there is automatically much better accountability for the treatment decision and a better basis for assessing what kind of care a patient needs.

I want to continue that train of thought in the next part of the amendment. It proposes that second-opinion appointed doctors must explain in writing why they have authorised a particular treatment and provide those reasons to the patient. The amendment is carefully worded to reflect recent case law. Case law has established two things in the past five years. First, the second-opinion doctor must reach his or her own independent views on the proposed treatment. Secondly, the doctor concerned owes a duty in writing regarding his opinion when a decision is taken that sanctions the violation of a mentally competent adult patient’s autonomy.

The Mental Health Act Commission has published guidance which advises that reasons should be given for all decisions. That, too, is reflected in the amendment. We are talking about not only an evidence-based approach but one that is transparent. The benefit to the patient is in giving a basis for questioning the proposed treatment or for being reassured about it. That serves to instil confidence in the second-opinion system. This amendment is not only desirable but necessary. I hope that the Minister will consider it favourably. I beg to move.

Lord Carlile of Berriew: I wish to speak briefly in support of this amendment. The noble Earl is absolutely right when he speaks of the evidence that came to the Joint Committee. Indeed, a recurrent theme in the work of the Joint Committee, and the evidence and written representations we heard, was that patients should have the maximum autonomy possible when their mental condition is being treated. Since we published our report, and since the Government’s response, I—and no doubt others on

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the committee—have received a steady stream of correspondence from patients and ex-patients. The recurrent theme to emerge from that correspondence is that they do not understand why they were given certain forms of treatment. Nobody explained to them why they were given certain forms of treatment. They may be right or they may be wrong; some of those people, no doubt, will be writing in a misleading way, making misleading statements, or may have misunderstood why they were given certain forms of treatment, but that rather begs the question. The important point is that it should be possible to establish why that patient was given a certain form of treatment.

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In an earlier part of my career as a practising barrister, I took on a number of clinical negligence cases. From time to time psychiatry negligence cases arose. They are extremely difficult on both sides. They are very difficult to prepare for the claimant because it is in the nature of the case for evidence to be hard to come by. They are very difficult for the clinician because any clinician faced with a claim for professional negligence finds it, naturally, very difficult to deal with—as do all of us in the professions.

This amendment requires a very simple change to the way notes are taken, by writing down the reasons why a decision that may have permanent effects on a person’s chemistry has been taken. We hope that the Government will see it as appropriate to include this enhancement of autonomy and understanding within the text of the legislation.

Baroness Murphy: I rise to support this amendment. In particular, I want to speak about the second-opinion appointed doctor role. There was, no doubt, quite a lot of resentment from psychiatrists back in 1983, on hearing that their opinions would be questioned by other psychiatrists imposed upon them at a certain point in a person’s treatment. This led, at first, to the second-opinion doctor being a rubber-stamping exercise. People would come in, without always arriving when you were on the ward or with your patient, and left their opinion after a brief consultation merely by giving a certificate. They did not have to express a view at all.

As we have heard, case law has established that this is no longer acceptable. The Mental Health Act Commission has pressed for years—since the 1983 Act—for this to be a proper second opinion. It has become recognised that this is now much more like a realistic second opinion. We owe it to patients to make this a system of realistic second opinion. It is surprising how many times patients have said that they did not know that it was a second-opinion doctor who had come to give an opinion, so I want to add my support to this particular part of the amendment.

The other part, about taking account of patients' wishes, seems to me very closely related to an amendment that we will soon reach—Amendment No. 21, I think—on advance directives. That is a lesser but equally important element of taking

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account of what patients say. All we are asking doctors to do is what they would do anyway if they were practising properly: to listen to patients and write down their express wishes. That, coupled with the second opinion being a proper opinion, written down properly so that it can be discussed with the patient, seems to me absolutely fair and reasonable. I cannot think how that would add to the expense of the services. It would go a small way to give patients a reasonable second-opinion service.

Lord Patel of Bradford: I should like to make a brief contribution about Amendment No. 19. In part, the amendment is intended to preserve in statute such requirements of good practice and lawful decision-making as have been developed through a string of court judgments relating to the operation of Part IV of the 1983 Act through its lifetime and to date. It seems to me eminently sensible to do so, so that statute law reflects and protects those basic requirements. I therefore support the amendment wholeheartedly.

This is just a small point, but I note that the wording requires a doctor authorising treatment as the patient’s responsible medical officer, or as a second-opinion appointed doctor, to explain,

The Government have been implacable in their opposition to the concept of therapeutic benefit as a criterion for detention under the powers in the legislation. I think that the Minister knows that this debate has not come to an end. I hope that the Government will not, in the end, continue to oppose the concept of therapeutic benefit, especially in the context of the imposition of medical treatment, where it is surely a most appropriate measure. In any case, I hope that the Minister will take the spirit of the amendment and come back with wording that the Government are prepared to accept.

Baroness Masham of Ilton: It is about time that the Minister accepted an amendment. This seems a good practice amendment, so I look forward to his reply.

Lord Hunt of Kings Heath: I am sorry that I shall disappoint the noble Baroness. I thought that today the Government have shown themselves prepared to listen. We have agreed to take back a number of issues in the spirit of co-operation to explore ideas that I referred to when I first spoke to your Lordships only a week ago—although it seems much longer.

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