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Due to the nature of the relationship between a young person and their clinician, the young person may find it difficult to voice their concerns. A second opinion will provide an automatic safety net where the young person is less likely to feel that they are undermining their relationship with their primary clinician. The young person will encounter a number of professionals they do not know while they are being treated. It is an unavoidable consequence of being a patient.

Young people should have the sort of safeguards that older people have, and their wishes should not be overridden by parental consent. The amendment allows for patients who are not capable to have treatment on the basis of a High Court order, as there may be occasions when parents may not want to make, or will not make, decisions in their children's best interests. We need to include greater safeguards for young people.

I would also like to address the issue of emergency ECT. Here again, we must ensure that capacitous patients do not have emergency ECT if they refuse to have it. As I said on a couple of previous occasions, I cannot envisage a clinical situation where Section 62 emergency treatment should ever be given to a patient who has capacity. Such treatment exists to treat profoundly depressed people who have usually stopped eating and drinking and who are seriously at risk of dehydration and death before the treatment takes effect. As the British Psychological Society has pointed out, evidence from Northwick Park studies shows that if a nurse can sit with that patient day in and day out over the course of a three or four-day weekend and get liquid into him one way or another through a drip and so forth, ECT can usually be avoided. But sometimes it is necessary. Sometimes the circumstances are not right and the patient may pull out the drip and refuse treatment. But I cannot understand how such a situation could arise with a patient who had full capacity. The nature of the illness is such that it would not happen. The amendment would provide safeguards for a capacitous patient not to be subjected to ECT without his consent, if it was outlawed as an emergency treatment. It would lead to better practice. There is nothing in this amendment that would not be welcomed by psychiatrists. It is certainly welcomed by the Mental Health Alliance. I beg to move.

Earl Howe: My Lords, like the noble Baroness I very much welcome the government amendments, so it will seem rather churlish of me to complain that they do not go far enough—but I am afraid I do.

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On the issue of urgent treatment, in Committee I raised some questions of interpretation over Section 62, which sets out the circumstances under which urgent treatment may be administered. This is defined as treatment which is,

With regard to ECT, I ask the Minister to clarify the way in which this section should be read, bearing in mind that it is known that for some patients ECT is not only hazardous but can also result in irreversible side effects. I put it to him that the legal uncertainty over whether ECT is permissible as urgent treatment when the patient’s life was not at risk was most unsatisfactory. It is perhaps helpful to put part of the Minister’s reply to me on record. He wrote to me to say:

While I was most grateful for that reply, I really do not understand it. Certainly the Minister is right to say that some patients benefit from ECT and do not suffer unacceptable adverse side effects as a result of it, but he will know that there is now a widely held consensus of views within the medical community about ECT that it is per se potentially hazardous and capable of having irreversible side effects. The point is that you cannot tell in advance which patient is likely to suffer unacceptable damage. You can make that assessment only ex post facto—at least, in most cases. Therefore, if it is true that as a general proposition ECT is now regarded as an inherently hazardous form of treatment, I do not see how it is possible for the Government to be comfortable in asserting the view that they have about the interpretation of Section 62.

It is in any event a worrying interpretation. Urgent treatment is authorised under Section 62 without the need for a second medical opinion, if a patient has refused consent, or when he lacks capacity to consent. I believe that this is one clear instance in which we in Parliament have to listen hard to what the clinicians are telling us. The noble Baroness, Lady Murphy, is one, and she has repeated what she said in Committee, that she,

That view reflects the consensus of medical opinion to which I referred.

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We need to remember, too, that ECT will hardly ever be the only emergency treatment available for a patient. In comparison with other treatment options and knowing what we do about it, it is really very difficult to imagine how it could ever be the emergency treatment of choice, especially in circumstances in which a patient’s life was not actually at risk. Therefore, I urge the Minister to look at this issue again.

9.30 pm

In Amendments Nos. 30 and 31, the Government have implicitly accepted the case made in Committee about ECT—that it represents a uniquely invasive and distressing form of treatment. That acceptance now needs to be carried over into the provisions relating to urgent treatment.

I should like to add a couple of points of emphasis to what the noble Baroness said about ECT and children. I fully support Amendment No. 15. I believe that a unanimous view was expressed in Committee on this issue. Although ECT is rarely used on those under 18, it represents a particularly hazardous form of treatment for that age group. We now know that the adolescent brain is still changing and developing in its structure. Synaptic pruning, which is believed to be essential for fine-tuning of the functional networks of the brain, takes place throughout adolescence, as do changes to the frontal cortex, which are essential for such functions as response inhibition, emotional regulation, analysing problems and planning. NICE’s guidance on ECT almost certainly had these findings in mind in stating that the risks associated with ECT may be enhanced in children and young people.

It is worth pointing out that the amendment does not say that ECT should never be used on children or young persons. It allows for the kind of exceptional situation which many speakers in Committee acknowledged needed to be allowed for, when ECT may be deemed appropriate. But it would put in place what I and others believe are appropriate safeguards for this particularly vulnerable group of mental health patients, whether or not they are detained formally. I hope that the Minister will agree to think again about this.

The Lord Bishop of Coventry: My Lords, in some senses I shall repeat what the noble Earl, Lord Howe, has just said, but in a less erudite manner. We have before us a number of important amendments which in many respects overlap, at least in intention if not in words.

I am very grateful to the Government for producing Amendments Nos. 30 and 31, but if I had to choose I would be inclined to vote for Amendments Nos. 14, 15 and 16. I particularly welcome the inclusion of the test of therapeutic benefit in Amendments Nos. 14 and 15 and the special provision for patients under 18, including the requirement for the involvement of a clinician with special training in child and adolescent mental health. The discussions in Committee tipped the balance against the supposition that ECT for this age group should be banned, but its use requires stringent safeguards as provided in Amendment No. 15. Will the Minister reflect further on the overlapping nature of these

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amendments and produce a composite amendment at Third Reading that would take account of the very positive things contained in all of them?

Lord Patel of Bradford: My Lords, in our debate on ECT in Committee, I raised the question of what, if we are to outlaw the giving of ECT to capably refusing patients, would happen to those patients who currently receive the treatment under such circumstances. This is not an insignificant number of people; it is some hundreds of patients each year.

From the amendments before us, it seems that one way or another there are to be limitations on powers available to impose ECT in the face of a capable patient’s refusal. This does not, however, lead me to form a minority of one in this House and oppose both measures. My experience as chairman of the Mental Health Act Commission, the body which administers second opinions, tells me that clinicians, when considered as a body, do not measure capacity consistently or with anything approaching objectivity, even assuming that such measurement was possible. It is true that they can do quite well in agreeing in research situations, but I am not convinced that on the ground, for instance in assessing the capacity of those patients who have second opinions, they are all using the same yardstick.

Having listened to the debates on these issues so far, I have no fears that patients will suffer through being denied ECT on the technical grounds of their capacity status. I accept that a proportion of those patients currently deemed capacitated are probably not so in reality. I am concerned about how many more incapacitated patients we will see than before, and how much the notion of capacity will be measured in terms of the clinician’s wish to treat, but I do not see that concern as one that would make me oppose this measure. In fact, having a practical capacity threshold for ECT treatment may actually improve clinicians’ understanding and application of capacity testing. Let us see how it works out.

I am bound to say that, of the amendments before us, I prefer the construction of my noble friend Lady Murphy’s amendment for two reasons. First—and this touches on my concern over what will happen to those patients who are given ECT under the present law, despite having refused to give their consent—it is important to tighten the criteria for urgent treatment to stop such patients being suddenly reclassified as urgent cases and treated without the safeguard of a second opinion.

Secondly, I am disappointed that the Government’s amendment leaves out the safeguard of taking second opinions before any person under the age of 18 is given ECT. I support the amendment tabled by the noble Baroness, Lady Murphy, on these grounds. For this reason, I hope that Ministers will allow the noble Baroness, Lady Murphy, and her marshalled troops to push them that one or maybe even two steps further in providing safeguards for ECT.

Lord Williamson of Horton: My Lords, I intervene very briefly, as I always do, to support the amendment tabled by the noble Baroness, Lady Murphy,

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Amendment No. 15. Before I do that, I thank the Minister for the amendments that she has put forward, which are welcome in an area that is extremely sensitive. I really intervene because many of us speak from personal experience, and I know from mine of patients with mental disorders who consider that the problems from which they suffer 20 years after having had ECT treatment are wholly due to that treatment. That may not be true but it is what they believe, so we have to be extremely cautious about what we can and cannot do with ECT treatment. I just wanted to make that point.

Baroness Royall of Blaisdon: My Lords, we have had an excellent short debate on these matters introduced by the noble Baroness, Lady Murphy. I am very grateful for the warm support—the partially warm support—of noble Lords on these amendments. In Committee, my noble friend Lord Hunt indicated that we would consider further the question of allowing patients subject to compulsion to refuse consent to the use of ECT in non-emergency situations, and we have done just that.

We accept that there is a persuasive argument for providing that a patient should have their refusal respected when they are capable of understanding the nature, purpose and likely effects of being treated with ECT and refuse to consent to that treatment. Your Lordships will note that our new Section 58A is subject to the urgent treatment provision in Section 62 of the Act. I will return to that later.

Amendment No. 15 also proposes a new Section 58A; for ease, I will refer in future to the Government’s new Section 58A, or new Section 58A of Amendment No. 15. I believe that the Government’s amendments achieve all that is in Amendment No. 14, tabled by the noble Baroness, Lady Barker, but with some additional elements. Our amendment is in line with Sections 57 and 58 in that they do not make any distinction based on the age of the patient. With regards to a patient who is capable of understanding the nature, purpose and likely effects of ECT and agrees to being treated with it, we will require the approved clinician in charge of the patient’s treatment to certify that the patient is so capable and has consented to the treatment before it can be given. Similarly, Amendment No. 31 provides that the Government’s new Section 58A will be subject to Section 60.

There is an important difference of language between Amendments Nos. 30 and 14. The latter requires a SOAD to certify not merely that treatment is appropriate but that it is necessary. In practice, there may be little difference. Generally, ECT will not be appropriate except where it can also be said to be necessary, but to make the test one of necessity in all cases would not be welcome to those patients who actually have a preference for it over other methods of treatment. A preference for ECT may be known from previous episodes of treatment or from an advanced statement. The Mental Capacity Act provides for the making of an advanced decision to refuse treatment.

Under the Government’s new Section 58A, a valid and applicable advanced decision to refuse treatment with ECT must be respected where the patient lacks

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the capacity to consent at the time the treatment is being proposed. If a patient has granted a lasting power of attorney and that power is made in such a way as to allow the attorney to take decisions on the person’s behalf about relevant treatments then, where that attorney refuses consent to the treatment, that refusal must be respected as if the patient had capacity to consent but was refusing to do so. The situation would be the same in the unlikely, but not impossible, circumstance where the Court of Protection appointed a deputy with authority to refuse treatment on the patient’s behalf. It is also the case that the Court of Protection or another court with appropriate jurisdiction—for example, with regard to children—can decide that treatment should not be given to a patient who cannot consent to it. Our provision deals with all these matters expressly and I think that Amendments Nos. 14 and 15 would be more comprehensible if they had done likewise.

We have considered Amendments Nos. 15 and 16, which respectively address additional safeguards in relation to ECT for patients under 18 and limitations on the provision of urgent treatment with ECT. My noble friend Lord Hunt said in Committee that the Government would also consider these matters further. We have given much thought to them, but I must say that there are many complicated issues to which we need to give further thought.

Amendment No. 15 provides for additional safeguards for patients under the age of 18 for whom ECT has been proposed as a treatment for their mental disorder. There are complicated issues of clinical practice and law here and I regret that we still need more time to get this very important aspect of the need for specific safeguards for children who are to be treated with ECT absolutely right before we respond. Some of the complications are illustrated by the noble Baroness’s amendment. We need to be sure that we do not restrict clinical practice to the point where clinicians will be denied a legitimate intervention to protect very ill children for whom ECT is, very exceptionally, the best option. We also need to be careful in deciding to whom we give rights to make decisions about the treatment of a child who cannot consent himself or herself.

Amendment No. 15 would provide that where the patient under 18 was incapable of consenting to ECT, a person with parental authority must first consent to the treatment being given, unless there was a court order that the treatment be given. We are not convinced that the right approach is to provide that a parent must first consent before a SOAD can authorise treatment or, failing that, that a court must make an order for the treatment to go ahead. We accept that a child patient who is incapable of consenting to ECT should be provided for in such a way that a refusal to that treatment can be made on their behalf. I would suggest that the courts already provide the right arena to consider these issues.

I hope that this gives noble Lords a flavour of the very difficult issues with which we are still grappling. I do understand the concerns expressed in relation to children and young people but I cannot agree to the sort of composite amendment suggested by the right

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reverend Prelate. However, I can assure noble Lords that the Government will return to these matters when the Bill is considered in another place.

The government amendment provides that Section 58A would be subject to Section 62. We will consider the criteria that must be met for urgent treatment with ECT. Amendment No. 16, by amending Section 62, would restrict the provision of ECT to detained patients without a SOAD certificate in urgent situations to those circumstances where it was required immediately to save a patient’s life. In the previous debate in Committee, my noble friend Lord Hunt expressed concern that that was too restrictive. I am concerned that the amendment will prevent treatment of a patient whose need is not yet life saving, but whose condition, as it is, risks their suffering irreversible effects if that treatment is not provided urgently.

I understand the concerns behind the amendment and I share the desire that a provision for the urgent treatment of a patient without a statutory second doctor’s approval should not be used to bypass the usual provisions for a safeguard that requires a capable patient to give consent and requires certification of a second-opinion appointed doctor when the capability of giving consent is lacking. A balance must be struck here. Clinicians should not be denied the ability to provide the right treatment to their patients, especially when that treatment would save the patient’s life or prevent serious deterioration in their condition. Of course I have listened to the views of the noble Baroness, Lady Murphy, but the Government believe that there must be the balance I mentioned. The Government are not convinced that Amendment No. 16 strikes that right balance, but, equally, we see that there are powerful arguments against ECT being permitted in all four cases generally allowed by Section 62.

Amendment No. 85 provides for any certificate that authorises treatment with ECT for a patient who is refusing consent before the enactment to cease to apply on enactment. It cannot be right that a consent-capable patient refusing ECT can still be given ECT compulsorily because the treatment was certified before the law changed.

Noble Lords have made it clear that they consider the requirement that consent be given before ECT is provided to a patient who is capable of giving that consent should fall into that category. In the light of that, we have been persuaded to bring forward these amendments and to pursue consideration of the other issues that I mentioned.

I have listened carefully to the debate. However, we prefer our amendment over Amendment No. 14. Our amendment makes clear the circumstances in which a refusal can be effected for a patient who lacks capacity to consent to ECT. Further, it provides for additional treatments to require the consent of patients who are capable of giving that consent and safeguards for the treatment of patients who cannot.

Before I end, I inform noble Lords that in Committee we debated an amendment that would have provided that all clinics where ECT is administered would have to comply with the standards set by the Royal College

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of Psychiatrists’ ECT accreditation scheme. My noble friend Lord Hunt advised your Lordships that he would make the Healthcare Commission aware of the debate and that he would arrange for officials to discuss with the royal college opportunities for encouraging more providers to put themselves forward for that scheme. Initial discussions have already taken place, and the Healthcare Commission’s head of mental health policy, Anthony Deery, and the director of the royal college’s research unit, Dr Paul Lelliott, along with Department of Health officials, will be meeting shortly to work through some proposals that the Royal College of Psychiatrists has put forward since Committee.

The Government have proposed an alternative to Amendment No. 14 and, for the reasons that I have outlined, I ask the noble Baroness to consider withdrawing her amendment.

9.45 pm

Baroness Murphy: My Lords, I thank the Minister for that response, which, in some ways, was almost more than I was looking for. She reassures me that the Government are still grappling with the issue of ECT and children, which is still one of our big concerns. Although we welcome the Government’s amendment for capacitous adults, which seems, to me at any rate, to meet most of our concerns about them, we would like to look at Hansard more carefully. We are grateful that the Healthcare Commission will look at accreditation being given by the Royal College of Psychiatrists to units which are administering ECT. That is very welcome. Meanwhile, I beg leave to withdraw the amendment.

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