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However, I draw the Committee’s attention to Schedule 3 to the Bill, which in paragraph 3(5) inserts a new subsection into Section 18 of the Act. The new subsection has precisely the effect that the noble Baroness is seeking, by providing that any patient who is required to reside in a particular place under the Act may be taken there, as well as returned there, should he abscond. This provision will apply to patients subject to guardianship or on leave of absence. It will also mean that patients on supervised community treatment who are recalled to hospital can be taken to that hospital.
I have looked back through the Explanatory Notes on this matter and I acknowledge that they do not make clear this change in respect of guardianship. I apologise for the omission. I hope, however, that when your Lordships have had an opportunity to look at the relevant subsections, they will agree that the anomaly raised by the noble Baroness is dealt with in the Bill. I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Finlay of Llandaff: I am most grateful to the Minister for her response. I am slightly relieved to hear that the Explanatory Notes were not clear,
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Amendment, by leave, withdrawn.
Clause 12 [Amendments to Part 5 of 1983 Act]:
Baroness Murphy moved Amendment No. 21:
(1) An advance decision is a decision, made by a person (“P”) when he has reached the age of 18 and when he has the capacity to do so, that if—
(2) An advance statement is a written statement made and subscribed by a person when he has capacity to do so setting out the ways he wishes to be treated for mental disorder.
(3) An advance decision or an advance statement may be regarded as specifying a treatment or circumstances even though expressed in laymen’s terms.
(4) P may alter or withdraw an advance decision or an advance statement at any time when he has capacity to do so.
(6) A withdrawal, a partial withdrawal, or an alteration of an advance decision need not be in writing.
(1) An advance decision or an advance statement made under section 75A above is not valid if a person (“P”)—
(1) If an advance decision or an advance statement made under sections 75A and 75B above is found to be valid and
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(2) Where a decision is made which conflicts with a valid and applicable advance decision or an advance statement the requirements set out in subsection (3) below must be complied with.
The noble Baroness said: First of all I must remind the House that the Mental Capacity Act 2005 enables someone who has mental capacity to make a decision that they do not want a particular type of treatment if they should lack capacity in the future. A doctor must respect this decision. My amendment gives the same privilege to a person with full mental capacity to make a decision that they do not wish in the future to receive a particular form of treatment if they become incapacitated through a further episode of mental illness. This is a refusal of treatment, because no one can specify exactly what treatment a doctor will recommend in the future. It is not a demand for treatment, it is a refusal to accept some treatments. However, patients who have experienced treatment often have a good idea about what helped and what did not, and may want to express hopes and wishes about the future as well as to specify what they do not want. The noble Earl, Lord Howe, talked about this in an earlier amendment today. Patients’ wishes should be heard and taken into account when deciding treatment.
At the moment we have differential rights between those subject to the Mental Capacity Act and those to the Mental Health Act. Under the Mental Capacity Act a person can make an advance directive on refusing further treatment, for example should they develop advanced Alzheimer’s disease. If having developed the condition that person does not resist medical intervention, they will be subject to the Mental Capacity Act and the advance directive will be honoured. If on the other hand they resist medical care, they may be subject to the Mental Health Act and the advance directive may not be honoured.
I can see no good reason why for incapacitous patients there should be any distinction between using force in treatments for physical disorder and treatments for mental disorder. There are a number of reasons for saying that. First, no distinction is made between treatments for physical disorder and those for mental disorder if the patient is incapacitous but compliant. Under the Mental Capacity Act a patient with, for example, Alzheimer’s disease would be able, despite resistance, to receive treatment for dental disease, for example, but not for the Alzheimer’s disease itself. Secondly, the distinction between treatment for mental disorder and for physical disorder is often one of semantics—disease of the
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Advance directives are a tool to empower patients to become good partners in negotiating individualised treatment and care in the future, when they have a time of crisis. When negotiated in advance as an agreement between patient and clinicians they are even more useful. Advance agreements are widely used in German-speaking countries and they are offered routinely in at least 50 psychiatric hospitals in Austria, Switzerland and Germany, where they are legally binding.
There is evidence from a randomised control trial conducted by Dr Claire Henderson and her colleagues at the Institute of Psychiatry, published in 2004, that use of agreed joint crisis plans made during the recovery phase of an episode reduced compulsory admissions and treatment in patients with severe mental illness over the follow-up period. The reduction in overall admission was less but this was the first structured clinical intervention that seemed to reduce compulsory admission and treatment in mental health services.
In practice patients sit down with their professional when they are well and agree to carry around a card with them that usually has the name of a relative or advocate to be contacted and an outline of a care plan and acceptable medication. Earlier today we saw the noble Baroness, Lady Knight, with her card for an advance directive on her physical care. It is similar to the cards that patients on the continent, and many patients here, often carry. The card may very well say yea or nay to ECT. Patients have very individual responses, as we have heard.
In Illinois these arrangements are encouraged and binding. Participants in such schemes list preferred medications and the medications they would refuse, most often first-generation anti-psychotics regardless of whether they would refuse ECT. Half of them appoint a surrogate decision maker. Most desire a directive that would be irrevocable during periods of incapacity. In Illinois, the advance directive is binding for three years.
The recent Scottish Act which we have discussed at length in Committee enables people who are detained to make an advance statement not only to refuse treatment in advance but to specify their wish for a treatment they found helpful. It is extremely helpful for a clinician when faced with a patient who is unable to express their wishes to have a clear indication of the patient’s views on type of treatment. It also means that patients can play as full a part as possible in decisions on care and treatment. That is likely to improve engagement at a later date.
In a case where an advance decision or statement is being considered there have to be processes to decide whether the decision is valid and applicable—that is, whether the circumstances are those the person envisaged when expressing their view—in order to protect the patient and the clinician from misunderstanding or error. These amendments would provide a framework for doing so. In summary, I want to introduce a
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Lord Carlile of Berriew: I support the amendment. It has been moved with great cogency by the noble Baroness, Lady Murphy, who cited evidence from the profession. I add nothing to that.
I remind noble Lords that the joint scrutiny committee recommended, after hearing evidence, that:
- “the Government bring forward legislation ... which would enable people to make advance statements and to record advance decisions, particularly if there is a treatment that they would not wish to receive”.
One or two examples of that have been given by the noble Baroness. The committee also recommended,
- “that the arrangements provide for these statements (in relation to any future mental health treatment) to be taken into account by, but not become binding on, clinicians in determining the provision of medical treatment for mental disorder under the Act”.
I confess to great disappointment that that clear conclusion of the joint scrutiny committee has not been included in the Bill.
I remind the Committee that, in November 2002, the Joint Committee on Human Rights, in its 25th report, recommended at paragraph 91 that,
- “the right of patients to give directions about their future treatment, during periods when they are capable of doing so, should be respected where doing so would not present a threat of death or serious harm to the patient or anyone else”.
The scrutiny committee also highlighted the first point made by the noble Baroness in moving the amendment: the lack of consistency between the Mental Capacity Act and the Mental Health Act 1983. I look forward with interest to hearing what the Government propose to do, or how they propose to justify that very obvious inconsistency.
The amendment includes, as proposed new Section 75B(2), three sets of circumstances in which advance decisions or advance statements would not be applicable. Those three sets of circumstances seem to me to provide all necessary protection to clinical judgment and to patients in the sort of circumstances referred to by the noble Baroness. I cannot see any sound reason why the Government should reject this amendment. I hope the Minister will at the least be prepared to consider the matter further.
9 pm
Baroness Finlay of Llandaff: I hesitate to draw attention to any of the wording of the amendment in the light of the two previous speakers and because the sentiment behind the amendment is so terribly important. I have a small concern as a clinician who does not work in mental health that the understanding out there is that an advance decision to refuse treatment made by someone with capacity will be legally binding and that advance statements such as the one we were shown by the noble Baroness, Lady Knight of Collingtree, are advance statements of wishes and preferences should the situation arise.
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The other aspect on which I have a small concern is that the amendment says that an advance decision need not be in writing. I have a difficulty with something being legally binding if it has not been clearly recorded somewhere. If a patient wishes to tell me what they do not want done but they are not going to write it down, I will, in good clinical practice, record it in the notes. I will read it back to them and have someone there as a witness to the fact that I really am reading back what I have written. They may countersign it or have the person sign it on their behalf, but it acts as a verification procedure so that something is clearly written down and so that the wording has been checked out with the patient. If a situation arises and another clinician who has not had those conversations is dealing with the patient, those conversations are clearly recorded.
The other provision is correct in that a withdrawal or partial withdrawal need not be in writing. However, I have another concern in that if an advance decision is going to be altered in advance, something should be clearly recorded in writing and agreed so that there is a record of the patient’s wishes which cannot be disputed. The other matter is the typographical error right at the end of the amendment, which is completely trivial. I feel that the aspect of recording a decision in writing needs to be looked at.
Baroness Barker: Perhaps I may just respond to the noble Baroness, Lady Finlay. In drafting the amendment people were trying to do the same as we discussed the other day in relation to impaired decision-making—to bring about an equivalent provision to the Mental Capacity Act but to lower the threshold because we have to deal with people whose decision-making ability becomes impaired. In so doing, an error has occurred in the amendment. It should make explicit that the decision either to withdraw or to give life-sustaining treatment has to be in writing. The noble Baroness will perhaps agree with me because she sat through all the long discussions on the Mental Capacity Act, when we went through these matters with great care and attention. Under the Mental Capacity Act there is no need for a withdrawal to be recorded in writing. That is to enable sufficient flexibility for the patient and the clinician to cover a change in the patient’s wishes or a change in the circumstances. Given the very strong views of the noble Baroness on this, I do not believe she would want to change that. I accept her point about the written record. One of the reasons why this sort of thing has crept in is—as I understand it, having read chapter 32(a) of the draft code of practice, where the Government set out their main intentions—that there is no distinction between patients who have capacity and those who do not. I wonder if the Minister could respond to that.
I turn to the point of the noble Baroness, Lady Finlay, who asked which Act would come into effect. She will find that in another part of the draft code the Government make it absolutely clear that Part 4 of
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Earl Howe: I hope this is a matter that all of us on the Committee can sign up to, at least in principle, without serious argument. We are dealing here with a proposal that, par excellence, could deliver a step change in patient empowerment for those with mental illnesses. When the Government responded to the Joint Scrutiny Committee report in 2005, they sounded quite positive about advance statements and decisions. They said that they were carefully considering how a provision of some sort could be placed on the face of the Bill. It is really quite disappointing that nothing has appeared, but it is not too late to find a way through. I hope that the Minister will be receptive.
Lord Hunt of Kings Heath: This has been an interesting debate. I know that the House discussed these issues at length when we considered the Mental Capacity Bill, now the Mental Capacity Act 2005. That Act put advance decisions on a statutory footing and provided for any person to say in advance that they want to refuse treatment if they lose capacity to make such decisions in the future. A valid and applicable advance decision to refuse treatment has the same force as one made by a person with capacity and must be followed.
The Mental Capacity Act provides that these advance decisions do not apply where the person is subject to Part 4 of the Mental Health Act, nor the new Part 4(A) provided for in the Bill. That is because the Mental Health Act provides for circumstances in which a patient with a mental disorder can be treated without consent in order to protect themselves or others. Of course we believe in the importance of taking account of a patient’s wishes as fully as possible, including those expressed in advance. I assure the House that we will give guidance to practitioners in the code of practice on giving those views due consideration whenever decisions about the care and treatment of the patient are made. I have noted the comments of the noble Baroness, Lady Barker, about the code of practice. I will look into those matters and come back to her.
It is in the nature of this legislation that compulsion is provided for, precisely because the patient may not wish to have the treatment that he needs. Clearly, compulsion is no light matter. We have many safeguards in place. Good clinical practice demands, wherever possible, that treatment is provided under this Act with the consent of and in accordance with the wishes of the patient. Clearly, the more that a patient is engaged with and contributes to the process by which decisions are made, the better are the outcomes for him.
Briefly, I shall outline a number of scenarios in which we do not think that the amendment would work, but where we believe that professionals should
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In managing that situation, we would want professionals to consider what they know about the patient’s views and any relevant past discussions that they have had. That is good practice. We think that that is best addressed in guidance. We do not want professionals to consider that they need only take patients’ past views into account where they now lack capacity.
Even when professionals are having contemporaneous discussions with a patient, we would expect them also to consider what the patient had said or written in the past and raise that in their consultation as appropriate. A patient may appreciate being reminded of what they have said in the past—or indeed what had happened in the past, such as a particular response to a treatment—when considering what they want to happen in future. Where a decision is made that is contrary to the wishes of the patient, we would expect it to be recorded—whether it was not in accordance with the patient’s wishes as expressed at the time or, where no such consultation could take place, if it went against the patient’s past expressed views. We consider that good practice
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