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The amendment is about the confidence of clinicians—medical practitioners—in carrying out treatment on patients who have needs. It is also about ensuring that patients who may be only temporarily incapacitated and who go into nursing homes or rest

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homes have their rights fully protected so that they do not find themselves in some kind of limbo when they are once more capable of managing their own affairs. It has been dealt with in a very constructive spirit. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 10 to 12 not moved.]

Earl Howe moved Amendment No. 13:

The noble Earl said: My Lords, we return to an issue that is viewed by all sections of the mental health community as being of major significance in the context of treating individuals under compulsion. It relates to the period following an order for compulsory treatment before a second medical opinion is required.

To recap on the background, the 1983 Act entitles the medical practitioner to use medication to treat a patient for his or her mental disorder without consent—and, indeed, in the teeth of the patient’s opposition—for three months. Before the end of that period, Section 58 of the Act requires a second medical opinion to be sought from a doctor appointed under Part 4 before the treatment can continue. A second opinion is mandatory under two scenarios: either where the patient does not give consent or where he lacks capacity and the responsible clinicians consider that treatment should be given.

The issue addressed by the amendment is very simple: three months of being treated without consent, or without the capacity to consent, is too long. Medication for mental illness can be dangerous and damaging to the person taking it. It involves powerful and potentially toxic chemicals that have significant adverse side effects. A patient taking these drugs can put on weight, contract diabetes, have major problems with his eyesight, become impotent, become extremely lethargic and exhibit involuntary movements of the limbs that are highly embarrassing. This medication is no picnic.

The whole business of prescribing psychiatric medication is fraught with pitfalls. Errors of judgment about dosages and what drugs are right, and so on, are not uncommon. The off-label prescribing and administering of harmfully high dosages are real and frequent problems. They can have a serious impact on the patient’s physical and mental health. Moreover, as the noble Baroness, Lady Finlay, pointed out in a previous debate, a patient’s diagnosis can change over three months. Medication and dosages may need to be changed to take account of that. For all these reasons, three months is a long time not to have a second opinion. As we heard from the noble Lord, Lord Patel, in Committee, the Mental Health Act Commission has been absolutely clear about this. It does not believe that the current Act gives enough protection to patients; nor, come to that, did the Government when they drew up the 2004

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draft Bill, under which there would have been the tribunal authorisation of compulsory treatment after 28 days. It is therefore alarming that the Government are now opposing this change. The Minister’s main argument is that three months are needed to allow the person’s condition to stabilise. I cannot believe that he advances that as a serious proposition, when only a few months ago the Government were arguing for a review after 28 days. He will know, I am sure, that new medication is available nowadays and that the guidance on it is quite explicit about the length of time needed for it to be effective. In almost all cases, this is a fortnight. In the case of clozapine, it is a month.

We would do well to heed the words of the Joint Committee on Human Rights, which reported recently. It pointed up the comparison between ECT and medicines. Unlike medicines, any administration of ECT requires an immediate second opinion. The justification for this was that ECT is seen as a more controversial treatment. It said:

That was the committee’s conclusion. The issue for the committee was whether the three-month delay allowed for in the current Act is a breach of Article 8, and, if it is, whether that breach can be justified as being proportionate to the aims of reducing the risk posed by a person’s mental disorder and of improving their health. The committee reached the view that the justification for the provision was “doubtful”. I put it to the Minister that this opinion by the committee sets the seal on the whole issue. The law as it stands is not right and we need to change it. I beg to move.

9 pm

Baroness Neuberger: My Lords, I support the words of the noble Earl, Lord Howe, who has made a strong case for why three months is simply too long. I want to add just a couple of points to his remarks. First, those of us who have been in professional practice or have chaired NHS trusts have experience of what can only be described as “macho prescribing”. People are prescribing at doses above the BNF recommendation. Patients have a real fear of that and it is one of the reasons why a review after a month rather than three months is something we ought to press for very hard.

My second point is one that we have considered in the context of a whole variety of issues as we have debated the Bill: we are concerned about public safety. If patients are frightened of the treatment they may receive, they are less likely to seek it. If they feel that they will be treated compulsorily, they will become even more anxious if that treatment is not reviewed with a second opinion after one month rather than

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three months. All this will be going on for too long and that makes people more fearful. The more fearful they are, the less likely they are to seek early treatment and the more likely it is that they will fall into the compulsory net. The circle then goes around all over again.

Simply to add to the words of the noble Earl, Lord Howe, we need to think hard not only about the opinion of the Joint Committee on Human Rights, but also about the effect on patients and how they feel about this. We must consider how in the longer term they will accept treatment, either voluntarily or compulsorily.

Lord Patel of Bradford: My Lords, I am grateful to the noble Earl, Lord Howe, for bringing this amendment back to the House on Report. I supported it in our previous debates and I continue to support it now. I should add that I am chairman of the Mental Health Act Commission, which administers second opinions under the 1983 Act. I argued at Second Reading that the additional costs of reducing the three-month rule to a one-month rule should be met, as this was a measure that would improve patient safeguards and respect for human rights. The Minister argued against any change on three grounds.

First, he argued that certification before three months might be too restrictive and would not allow for different drugs to be tried before the right one was found. This is unlikely to be true for the simple technical reason that certificates tend to authorise drugs in terms of the BNF category rather than naming individual drugs, so there would still be some room for the trial and error that characterises the initial stages of treatment. Secondly, the Minister argued that some drugs do not take effect for a number of weeks. It is true, for example, that antidepressants can take up to a month to have any effect, and that this could cause difficulties where second-opinion doctors might be asked to authorise the continuation of treatment whose beneficial effects had not yet been demonstrated. But, of course, our doctors frequently do this, for instance when there are proposed changes to treatment plans after a patient’s “three-month period” is over. Consideration of as yet untried changes to individual patients’ treatment is a large part of the second-opinion role, and this objection is thus misplaced.

Finally, the Minister was concerned at the additional cost and use of psychiatrists’ time. Underlying this concern is a worrying implication that the benefit to patients in having the safeguard of a second opinion does not outweigh the cost of providing that second opinion. I cannot accept that. The Mental Health Act Commission’s last biennial report highlighted that a significant change is made to a patient’s treatment plan as the result of a second opinion visit on every working day of the year. But many detained patients will never see a second-opinion doctor or have their treatment subjected to such scrutiny because they are discharged within three months of treatment commencing. Others who remain in hospital and go on to see a second-opinion

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doctor may quite justifiably wonder where that safeguard has been for the initial period of their detention.

The amendment could improve patient care and patients’ confidence in their care. The consent provisions in the 1983 Act, of which this is a crucial part, were hard won in 1982, following powerful lobbying at the time by Mind, in the shape of Larry Gostin and the late Tony Smythe. But the idea was very new when the three-month rule emerged. We now have substantial experience of operating these sections; the Mental Health Act Commission, among others, recognises the importance of shortening the time for an opinion.

Baroness Murphy: My Lords, I have added my name to the amendment and wish to speak briefly in its support. The Government indicated that they were thinking in this direction in the 2004 Bill; this was welcomed by mental health services as an added safeguard. I strongly support the amendment.

Lord Hunt of Kings Heath: My Lords, the amendment seeks to reduce from three months to 28 days the period for which a second-opinion appointed doctor must authorise the administering of medication when the patient does not consent or is incapable of consenting. We discussed the amendment in Committee. I said then that we believed the three-month period contained in Section 58 remains appropriate, and we have not been persuaded otherwise.

Where treatment is provided for under compulsion, it is essential that there are patient safeguards in place. We have those. The Act provides for some treatments where safeguards come into play immediately the treatment is proposed. ECT is one such treatment. Amendments Nos. 30 and 31 provide that consent will in future be required of any patient capable of giving it before ECT can be administered. It is also the case that a person cannot receive compulsory medication for their mental disorder unless their detention is supported by two doctors and an application made by, in the vast majority of cases, an approved mental health practitioner.

It is best if the certification for continuing with compulsory treatment be undertaken at a time when the efficacy of the proposed plan of treatments is understood. We do not depart from the argument I used in Committee. We should also consider the right time for the patient to be effectively involved in the process.

The noble Earl, Lord Howe, referred to the recent report of the Joint Committee on Human Rights, which might be described as rather tentatively expressing or questioning whether the Government are meeting their obligations under Article 8. Obviously we will consider that report, but it is our view that the ECHR does not require us to have second opinions at all. In our view, when the courts have addressed these matters, they have not taken the view that the provision breaches Article 8 or that three months is too long a period.

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We have talked about Scotland a lot. The mental health legislation in force in Scotland prior to the current Scottish Act was essentially the same as our 1983 Act. In 2002, the Court of Session held it to provide adequate procedural safeguards in relation to the compulsory medication of patients within an initial three-month period and that it was not in contravention of Article 8. In addition, the High Court recently refused leave for a judicial review of the ECHR compatibility of Section 63 of the Act on the grounds that, inter alia, the three-month period is too long.

Bringing forward from three months to 28 days the time allowed for the involvement of a SOAD in cases where a patient refuses or is incapable of consent is not a simple act. It is not a matter of providing the same service but earlier, as I said in Committee. I understand what noble Lords have said about medication, but I think a three-month period provides an opportunity for the treating psychiatrist to reflect on the medications he proposes to continue to administer to the patient. Of course there are medications whose particular efficacy with an individual patient can be determined within 28 days—there is no doubt about that—but that will not always be the case. It is already the case that when the SOAD is asked to certify a relatively recent prescribed treatment, the efficacy of such treatment may not yet be known. The situation can arise because the current medication is a change from earlier but less effective medication, or because a patient is to be treated with a different type of medication addressing a different aspect of the patient’s condition. The shorter the period for involving a SOAD, the more likely it is that those circumstances will apply. That is likely to be a regular aspect of providing certificates at 28 days.

It could be routine that there would be insufficient evidence for the SOAD to certify with confidence that the proposed medication is the correct plan of treatment for the longer term, either because 28 days is not a long enough period for treatment with that particular medication or because the proposed medication has only recently been prescribed. The amendment would see many more instances where SOADs would set shorter periods for their certificate, requiring earlier review periods and follow-up SOAD visits. I do not see any value to patients in having a follow-up visit from a SOAD simply because the first visit took place too early in their treatment plan. Not all patients will welcome the visit of the SOAD.

I want to cover the issue raised by the noble Lord, Lord Patel, about our debate in Committee on the implications of this change for demands for SOADs and therefore on the psychiatric profession. It also concerns a point raised by the noble Lord, Lord Ramsbotham, in our earlier debate about the cost of this legislation. This is very relevant to that debate. Current practice is that the second-opinion doctor appointed by the MHAC has at least five years’ experience as a consultant psychiatrist. In 2005-06, 251 consultant psychiatrists were approved by the MHAC and made themselves available to be appointed to give second opinions as required by the Act. Obviously, that role is ancillary to their usual role as consultant psychiatrists, often with very busy

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caseloads of their own. I gave an initial estimate to the noble Baroness, Lady Murphy, on this, that a reduction to 28 days would result in further increases on consultant psychiatric time to the tune of approximately 20,000 hours in any one-year period.

I say to the noble Lord, Lord Patel, that it is not as much about the cost as the opportunity cost, in the sense of the time spent by psychiatrists and whether it is better spent acting as SOADs or providing direct psychiatric care. Clearly, that is a matter of judgment, but I ask the noble Lord to accept that my doubts about reducing the period from three months to 28 days are not based on a crude worry about the cost. However, I refer the noble Lord to the debates when I read the Statement about our first efforts to introduce legislation a long time ago. One of the great criticisms made of the original proposals was that many practitioners would be tied up in the statutory safeguards that were to be put in place. One cannot simply ignore the consequences of reducing the period from three months to 28 days.

It is also worth pointing out to noble Lords that we already have the power in the legislation; there is a regulating power to change the period of days. Given that this is amending legislation, that seems to be a perfectly satisfactory position for primary care legislation to have. It says it is three months, and there is the opportunity, if the time comes and if it is felt appropriate, to reduce that period. The Government strongly resist the amendment.

9.15 pm

Earl Howe: My Lords, I am naturally disappointed by that reply although I thank the Minister for responding so fully. Feelings run fairly high in the mental health community about this issue and I did not table the Committee amendment again lightly. The new ingredient in the pot since the Committee stage is, of course, the report by the Joint Committee on Human Rights. The Minister kindly undertook to look at that and I welcome his assurance.

There is provision in the 1983 Act to reduce the period of time before a second opinion is required, which indicates to me that the then Government had at least an ambition to bring that about; and, as we have heard, the Government themselves favoured a 28-day period in the 2004 draft Bill. I do not think we can ever afford to forget the potentially serious effect that some of these medications have on patients.

It may also be worth bearing in mind that in many of these cases the responsible clinician, once the Bill becomes an Act, may well be a nurse—someone who is not a doctor. There may be no doctor or psychiatrist involved until the SOAD provides his or her report. Those are real changes that will arise out of the Bill. I do not think that it is right for us to proceed as we have in the past and accept the three-month period as still necessarily the right one. Nevertheless, at this hour, it is right for us to move on. I shall reflect carefully on what the Minister said. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Baroness Murphy moved Amendment No. 14:

“CHAPTER 1A Treatment safeguards (c) subject to section 58A (as inserted by section (Electro-convulsive therapy: children)), in the case of electroconvulsive therapy a registered medical practitioner appointed as aforesaid (not being the responsible medical officer) has certified in writing that the patient is not capable of understanding the nature, purpose and likely effects of that treatment but that, having regard in particular to the likelihood of its alleviating or preventing a deterioration of his condition it is necessary for the treatment to be given.””

The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 15 and 16 and address the government amendments in the group.

Your Lordships may wonder why I am speaking to the ECT amendments first. I do so because other noble Lords have decided that I am a fan of ECT. It is an inaccurate assessment of my view of ECT but, as I am one of the few people who have prescribed ECT on very rare occasions for elderly people, I am well aware of its problems. I am very keen that we should have greater safeguards and a recognition of the fear and the problems that have surrounded ECT. I believe that if ECT were no longer available it would not make a great deal of difference, but there are one or two instances where it needs to happen, and it is still a useful part of the armamentarium.

I am well aware that at this stage in our deliberations on Report Ministers may be in need of some supportive psychotherapy themselves. I am delighted to welcome the Government’s amendment on the capacitous refusal of ECT which cannot now be overridden for adults. The government amendments in response to our amendments tabled in Committee have gone further than I expected. They ensure not only that capacitous patients who refuse ECT cannot be forced to have it, but that the wishes of those who have said in an advance directive that they do not wish to have ECT in the future cannot be overridden. That sets a marvellous precedent. I am very grateful, as other noble Lords will be.

The issue of a second opinion for all young patients for whom ECT is proposed unfortunately has not been addressed. The 2004 draft Mental Health Bill would have introduced tribunal or court authorisation of ECT for all patients under 16, whether or not under formal powers. The amendment provides for a second opinion under the SOAD system for both formal and informal patients which goes some way to matching this safeguard.

The amendment also requires that either the young person's own doctor or the second-opinion appointed doctor is a child or adolescent practitioner. A similar amendment has been tabled in relation to the use of compulsory powers over young people to ensure specialist involvement specifically before treatment with ECT. In his response to the amendment in Committee, the noble Lord, Lord Hunt, indicated that for informal patients who have capacity and have

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consented to ECT, a statutory second opinion would mean a young person being interviewed and examined by a second doctor, whom they would probably not know. With such serious treatment it is essential for a young person to be subject to a second opinion, regardless of whether they are a formal or informal patient. Far from undermining a capacitous voluntary patient, provision for a second opinion on a treatment with such far-reaching consequences can be only a support to the young person and the clinician and offer them reassurance that the decision is in the best interests of the patient.

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