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Amendment, by leave, withdrawn.

[Amendments Nos. 15 and 16 not moved.]

Earl Howe moved Amendment No. 17:

The noble Earl said: My Lords, I return, without apology, to an issue that we debated in Committee which I and many others felt was left unresolved—that is, the importance of ensuring that clinicians who prescribe treatment have regard to patients’ wishes.

There is nothing in the 1983 Act about this matter but it is terribly important. Putting a duty of this kind into the Act would achieve three main benefits: it would undoubtedly improve a patient’s autonomy

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and feelings of autonomy; it would increase the chances of consensual treatment and thereby avoid unnecessary compulsion; and it would improve patient safety because it is the patient himself who will often know what has previously harmed or helped him. In the latter context, it could even be life-saving.

The Minister rejected a very similar amendment in Committee. He said that he felt this was a matter best dealt with in the code of practice. Perhaps I may say why I believe that he should reconsider that view. A decision to invoke involuntary treatment is a most serious step because of the interference with the patient’s physical integrity that is involved in the process of compulsion. Having regard to the patient’s wishes is not simply one aspect of practice among many; it is a core principle that informs practice. It is precisely because the Act is concerned with the legal processes that allow compulsion that this principle needs to be stated in the legislation. Stating a duty to abide by this principle, with specific reference to decisions about treatment, will focus attention on patient participation at a time in what is a very critical process when the patient’s views can all too easily be disregarded.

The current code of practice already states that the whole care programme should be discussed with the patient, and it sets out various duties about seeking consent and providing information to the patient. But we know from the most recent biennial report from the Mental Health Act Commission that there are all sorts of problems with the administration of Part IV of the Act. Discussions with the patient about proposed treatments are not recorded. Patients tell commissioners that they are not happy taking their medication even though there is a form 38 certifying their informed consent. Yes, this is a matter of good practice and better training, but where is the impetus for that to come from? It needs to come, I believe, from a duty in law to have regard to patients’ wishes.

The amendment would also require the clinician to record any treatments requested by the patient and to record the reasons if the treatment is not given. Up to now the Government have rejected this idea as being too bureaucratic. I look at it the other way. A duty of this sort is clearly tied into the decision-making process for what treatment is to be given, and to include in a patient’s notes a reference to the treatments he requests is not burdensome. Indeed, it could be seen as the least that would be expected, especially where the clinician responsible for particular treatments is not the same as the clinician with overall responsibility for the patient’s case. Often when a treatment is requested by the patient there will be good reasons why it cannot be given. It may not be clinically recommended. It may not be possible to provide it. If so, that information ought to be available for future reference whether to the patient or other people authorised to access the patient’s record.

Of course, the duty set out in the amendment would not define the limits of the whole process of patient participation, nor would it prevent clinicians from enabling participation in a range of ways

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appropriate to the patient and the circumstances. However, it would give patients a modest but significant right to assert their wishes in the knowledge that these must be noted, and that any refusal must be a reasoned refusal. In an otherwise powerless position of being compulsorily sectioned, the opportunity for the patient to influence decisions is a very important one.

It is that powerlessness at a time of mental health crisis that patients often talk about. The amendment would guarantee a worthwhile degree of patient autonomy, with all the benefits that I mentioned earlier. I hope that the Minister will be prepared to have another look at this issue. I beg to move.

Lord Patel of Bradford: My Lords, it seems to me that the essential point of these amendments is to ensure that when a patient’s past or present wishes about treatment are not respected for whatever reason, the justification for this must be recorded by the decision-maker.

This is a modest proposal in terms of legal duties, but I believe that it would have a significant and beneficial effect in the way in which patients’ wishes are addressed by services. It is, thanks to fairly recent case law, a requirement that any second-opinion doctor authorising treatment without consent must justify his or her decision in writing. This amendment would extend that requirement to other decision-makers who may be overriding patient wishes.

In my view, and that of the courts, when the matter is brought to their attention, recording reasons is a very basic requirement of responsible and justifiable decision-making, where those decisions may interfere, or potentially interfere, with fundamental human rights. Some exemplary services may already make and record their decisions in such a way that would meet the statutory requirement that this amendment puts forward. Many unfortunately do not. It is on that basis that I support the amendment.

Baroness Murphy: My Lords, of the two amendments in this group, Amendment No. 72 is rather stronger than Amendment No. 17. Both give expression to the wishes of patients to have their voices heard. Amendment No. 72 would give at least part-equivalence to the Mental Capacity Act, with patients being able to say what they would like for themselves in the future and what treatments they would refuse.

I ask the Minister how these amendments fit into the Government’s proposed new Section 31A for the ECT safeguards. It seems that the Government have, in a sense, accepted the role of advance decisions in that. That is exceedingly important, particularly as we know from studies in the United States that in advance decisions—when patients, in between episodes of illness and having full capacity, document which treatments they do not want—80 per cent express an opinion on the future use of ECT.

Lord Alderdice: My Lords, I support the amendment from a slightly different angle. The focus has tended to be on the requirement to note what

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treatment the patient wants when the treating clinician may think differently, ensuring that the patient’s views are expressed and protected.

There is another element. Sometimes patients can request all sorts of treatment, repeatedly, over quite a short period. The clinician is almost assaulted with a range of requests. Every time they see the patient, they will have a different set of requests to change the drugs or do something else. It is important that these matters are recorded so that anyone coming back to look at them understands something of the difficulty of interaction, perhaps because of disturbance of the patient’s mind or personality.

I am reminded of interaction that we had with the police service over a long time in Northern Ireland. We were trying to persuade them that it would be helpful for everybody concerned to videotape all interviews, and that it was in their interests as well as those of the interviewees because they would be protected when allegations were made against them. It took a long time, but they eventually agreed to audio taping and, eventually, to videotaping. When everyone looked back, they agreed that far fewer allegations were subsequently made, because there was no point in making allegations with no basis.

That is not an alternative to the arguments made but it is another side to them. For colleagues to realise that if they were to note some things—even if they think they are ill advised, unhelpful or tedious—it would protect them. It encourages them to think about the thing, and helps anyone coming in afterwards to give a second opinion or whatever to realise some of the difficulties and struggle in the clinical relationship. For that reason, as well as those already given, I support the amendment.

Lord Hunt of Kings Heath: My Lords, this has been an interesting debate, repeating much of the argument made in Committee. The amendments are asking practitioners, be they doctors or approved clinicians from other disciplines, to do what they ought to do as a matter of good practice. That is essentially why the Government do not think that this provision should be in the Bill.

It is surely axiomatic that clinicians should listen to patients and take careful account of their wishes, preferences and experience. The clinician who does not recognise that—and that patients, even those who are seriously ill, are very often experts in their own health—is missing a big trick. The fact that patients may be liable to compulsory treatment under the Act in no way diminishes the importance of encouraging them to express their wishes and engage in designing their own treatment, nor the imperative to pay close attention to what they say. Treatment without consent does not, and must not, mean treatment without regard to the patient’s views.

10 pm

It is similarly fundamental that, where patients have made their views known in advance, those views should be treated with the same respect. That is not just a question of respect for patients’ dignity; it can also be a powerful tool for providing efficient and

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effective care. In Committee, the noble Baroness, Lady Murphy mentioned research on the effectiveness of joint crisis plans as a way of reducing compulsory admissions and treatment.

It is likewise undeniably important that good records are kept of decisions and the basis on which they were made. In response to the point made by the noble Baroness, Lady Murphy, about the relationship with the ECT amendment, I understand that we have accepted the role of binding advance decisions in that context. However, these amendments are not about binding decisions, which is the difference. I am happy to write to the noble Baroness in more detail if she would welcome it.

I know that the noble Earl, Lord Howe, did not like my argument that there are many other aspects of good professional practice that we would wish to be followed but which noble Lords are not seeking to put in the Bill, but it is a strong point. It is clear that the Act already contains plentiful requirements to keep proper records where decisions are taken that restrict patients’ freedom in the interests of their health or for the protection of others, which is why statutory forms have to be completed when patients are detained under Sections 2 and 3 and when renewing detention. It is why approved clinicians must certify a patient’s consent to medication under Section 58 or else obtain written approval from a SOAD. I accept that there is an argument about whether the issue in relation to treatment is worthy of being added to the list of statutory reports and forms. We need to have a balance. We cannot make everything a formal legal requirement, or else we will end up with mental health legislation of the kind that was feared at the turn of the century: a well intentioned but overburdensome legislative framework.

I was interested in what the noble Lord, Lord Alderdice, said. For a moment, I thought that he was going to speak in my favour when he talked about the problem of the persistent patient who is constantly making demands on the practitioner. That would be one of the problems of having a bureaucratic demand in the Bill. I was interested in the noble Lord’s wide experience in Northern Ireland with the police, but I am not persuaded that professionals filling in countless requests would be a good use of their time. We are trying to get the balance of opportunity costs right.

It is not entirely clear what such a provision would achieve in law. If it is merely a declaration of good practice, it is not for legislation but for the code. If it is for legislation, what is the sanction for failure to be? What is the sanction against the professional who does not keep these records? Would the noble Earl say that the effect of not filling in the form might be to render a patient’s detention unlawful? He needs to consider that because I do not think it is a good thing to do, but there is not much point in including this provision in the Bill unless the consequences are known.

Noble Lords may be a little impatient with me when I say that the code exists to take the principles and legislative framework implicit in the 1983 Act and

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outline the practice that professionals need to operate it. We know that the statutory code of practice is very strong. I cannot for the life of me see why such provision is not appropriate for the code.

Earl Howe: My Lords, I thank noble Lords who have spoken in the debate. I am grateful to the Minister, despite the fact that his reply is not entirely unexpected, but I thank him for his backing, at least of the sentiments underlying my proposals.

I think that there should be sanctions against infringement of this proposal, were it to be incorporated in the Bill. What those sanctions might be would be for another discussion. As I mentioned earlier, we have not gone nearly far enough with the code of practice; something has to be done, if not on the face—

Lord Hunt of Kings Heath: My Lords, this is a draft code of practice. Perhaps I should have said that to the noble Baroness, Lady Barker, on the first amendment today on principles. Clearly, the code will be informed by the debates that take place in your Lordships’ House, in the other place and outside. It is a living, breathing document which is capable of improvement; I have no doubt that it will be improved.

Earl Howe: My Lords, the Minister makes a very helpful observation. I am sure that we are all encouraged by it. We will all take enormous interest in how the code is put together.

Lord Hunt of Kings Heath: My Lords, the eventual new code has to be laid before Parliament, and I would not be at all surprised if we had a debate about it.

Earl Howe: My Lords, I think that that is my cue for withdrawing the amendment in anticipation of such a debate. Once again, I thank noble Lords, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 [Amendments to Part 2 of 1983 Act]:

[Amendments Nos. 18 and 19 not moved.]

Clause 14 [Amendments to other provisions of 1983 Act]:

Lord Patel of Bradford moved Amendment No. 20:

The noble Lord said: My Lords, I shall also speak to Amendments Nos. 43 and 53. These are revised versions of my amendments in Committee. As I have removed that part of the original draft which I sense was the real sticking point for Ministers—although it was a dog that did not bark in our debates in this House—I hope that we can now reach an agreement to provide the 1983 Act with a lever that helps

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implement the Government’s admirable policy on care planning and risk assessment for detained patients.

The amendments have been shorn of the provisions presented in Committee whereby the mental health review tribunal could choose to discharge a patient on the grounds that its care plan was not being implemented. It may be that those clauses could have been interpreted as a new criterion for discharge. I believe that the existing criteria are sufficient. Tribunals are empowered to discharge patients where the need for continued compulsion cannot be demonstrated, and that probably encompasses all the situations I had in mind anyway. That leaves us with a proposed duty on services to provide a comprehensive care plan to all patients detained in hospital or leaving hospital under a community treatment order.

There would be a statutory duty to consult nearest relatives, carers and patients themselves in drawing up this plan where it was appropriate to do so.

I will not bore the House by reiterating the current failings—and there are many—in the implementation of the care programme approach, or by stressing the consensus in Committee that care planning under such a scheme, if implemented properly, would be the cornerstone of good, humane and safe mental health services. I will simply address the Minister’s objection in our previous debate that,

I do not accept that the amendment is meaningless or that it could not have any effect on services. Indeed, I do not accept that the current Act’s provisions on planning for aftercare under Section 117 are meaningless, although they impose broadly drafted duties on health and social care authorities. Neither would I accept that Section 132 was meaningless, although it requires hospitals to provide information to patients and relatives in broadly drafted terms.

Anyone working with the current Act during its time on the statute book would accept that such examples of broadly drafted duties have had some effect in changing professional behaviour and improving the service to patients and carers. Where services provided to patients and carers fall short of those requirements, their basis in law is an important lever to improve such services. It is a lever used by patients, carers and monitoring bodies. Of course, I speak as the chairman of the Mental Health Act Commission and must declare that as an interest. I entirely agree with the Government's position that detailed guidance on care planning should be established in the code of practice, but nothing in the amendment would change that.

I also agree that it would be counterproductive to establish statutory duties that required care plans in addition to those required by the care programme approach, thus creating a bureaucratic burden on services, but nothing in the amendment would do that either. The amendment would simply place on services the statutory duty to do something that a great number of them fail to do at present: to provide

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patients with a decent care plan. It is government policy that they should do so and I cannot see why that should not be a legal requirement. I beg to move.

Baroness Royall of Blaisdon: My Lords, the noble Lord, Lord Patel of Bradford, has returned to this topic with his usual enthusiasm, for which we are all grateful. In Committee, he acknowledged that the Government have good intentions but said that there remain serious problems in providing patients with robust and appropriate care plans. Clearly, those problems persist.

We wholeheartedly agree that care planning must be carefully and comprehensively undertaken for every patient, whether voluntary, detained or subject to supervised community treatment. Each care package must be tailored to each individual, taking into account their particular needs and circumstances. That is a vital part of their treatment. As the noble Lord, Lord Patel, said, it is a cornerstone, a fundamental component of good mental health care.

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