HC Deb 18 October 1982 vol 29 cc152-6
Mr. Pitt

I beg to move amendment No. 23, in page 29, line 30, leave out subsection (1) and insert— (1)(a)This section applies to the following forms of medical treatment for mental disorder (including diagnostic procedures)—

  1. (i) any surgical operation for destroying brain tissue or for destroying the functioning of brain tissue;
  2. (ii) any treatment which is not fully established; and
  3. (iii) such other forms of medical treatment for medical disorder (including diagnostic procedures) as may be specified for the purposes of this section by regulations made by the Secretary of State;
(b)A treatment shall be deemed established for the purposes of this section if reasonable standards of safety and efficacy have been confirmed for that treatment by clinical research.'

Mr. Deputy Speaker

With this it will be convenient to take Government amendments Nos. 24 and 28.

Mr. Pitt

Any new treatment from time to time will be so new that it will not have been incorporated into regulations or the code of conduct. The amendment provides that experimental work shall not be carried out on detained patients without their consent. The possibility of people being used as guinea pigs is especially frightening with regard to patients detained under the Mental Health Act. They need special safeguards to ensure that they can weigh up the crucial and complicated possibilities and the pros and cons of new treatment. By inserting the amendment, we shall be able to ensure that they can make a realistic assessment of the risks and possible benefits of such treatment before embarking on it.

I have asked to be provided with examples of treatments that are not fully established and which have been subsequently proved to be useless. The reading of the list adds weight to my remarks. For example, insulin coma treatment was used for 11 years without validation. There is the use of ECT for conditions other than depression. We heard a considerable amount about ECT on Second Reading. We have continued to hear from time to time of the unpleasant side effects of ECT. We need say no more about pre-frontal leucotomies.

Again I do not wish to detain the House longer than necessary. I am minded to withdraw the amendment in favour of Government amendment No. 24, which more concisely covers the same point, but I wish first to hear the Minister.

Mr. Terry Davis

Government amendment No. 24 meets the undertaking given in Committee in response to an amendment tabled by the hon. Member for Basildon (Mr. Proctor) and myself to specify the psychosurgery in clause 41. It is the most serious treatment. As originally drafted the Bill specified other treatments in the lower category of clause 42 but nothing at all in clause 41.

I am a little anxious about Government amendment No. 28, which deletes the reference to diagnostic procedures in clause 42. In Committee the Minister said, of an amendment to clause 41, that the reference was unnecessary. But the reference was in the Government's draft of the clauses. There has clearly been a change of opinion. All previous drafts specifically included diagnostic procedure in the definitions of treatment about which anxiety had been expressed. We would like to be sure that clauses 41 and 42 will cover diagnostic procedures even if the specific phrase is not included in the Bill.

Mr. Geoffrey Finsberg

The commitment given to my hon. Friend the Member for Basildon (Mr. Proctor) and the hon. Member for Birmingham, Stechford (Mr. Davis) is contained in Government amendment No. 24. It was always our intention to put it on the face of the Bill that psychosurgery must be performed on a detained patient only with his informed consent and a second opinion.

The reason for Government amendment No. 28 is simple. Parliamentary counsel advise that there is no doubt that diagnostic procedures are forms of treatment, so the words are superfluous. As the hon. Gentleman will know, parliamentary counsel's wisdom is unchallengeable on these matters. I could give an even longer explanation but it would amount to the same thing.

Mr. Terry Davis

I am glad to have the assurance that diagnostic procedures are included. But, to revert to amendment No. 24, if it was always the Government's intention that psychosurgery should be specified on the face of the Bill, why was it omitted from what was called new clause 16?

Mr. Finsberg

It was always our intention from the time that we took the decision on psychosurgery in Committee to see whether it should be put on the face of the Bill. There is nothing between us.

The hon. Member for Croydon, North-West (Mr. Pitt) says that he is minded to seek to withdraw amendment No. 23. One cannot satisfactorily talk about reasonable standards of safety and efficacy being confirmed. Who is to say what are reasonable standards and when they have been confirmed? I am sure that every psychiatrist would say that he would propose a treatment only if he were satisfied as to its safety and efficacy in accordance with accepted clinical practice.

1.45 am

The Government believe that the code of practice will be the most flexible and responsive means of guidance on changes of medical practices. As the hon. Gentleman said, old treatments become discredited and new treatments are introduced. When the mental Health Act Commission prepares and revises the code in consultation with relevant bodies, it will reflect the current state of medical knowledge. I think that that is what the hon Gentleman is trying to achieve. That can best be done through amendment No. 24, which covers his points. I hope that he will feel able to withdraw his amendment.

Mr. Pitt

In view of the Minister's remarks, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 24, in page 29, line 30, leave out 'such forms of medical treatment for mental disorder' and insert'the following forms of medical treatment for mental disorder—

  1. (a)any surgical operation for destroying brain tissue or for destroying the functioning of brain tissue; and
  2. (b)such other forms of treatmene—[ Mr. Geoffrey Finsberg]

Mr. Pitt

I beg to move amendment No. 25, in page 29, line 40, after 'practitioners)' , insert 'and the nearest relative of the patient (if any)'.

Mr. Deputy Speaker

With this, we may take the following amendments:

No. 31, in clause 42, page 30, line 33, leave out 'has' and insert

'and one person appointed for the purposes of this paragraph by the Secretary of State not being a medical practitioner) have'. No. 32, in page 30, line 33, leave out 'has' and insert 'and the nearest relative of the patient (if any) have'. No. 33, in page 30, line 33, leave out 'has' and insert

'one person appointed for the purposes of this paragraph by the Secretary of State (not being a medical practitioner) and the nearest relative of the patient (if any) have'. No. 35, in page 30, line 37, leave out 'has' and insert 'and one person appointed for the purposes of this paragraph by the Secretary of State (not being a medical practitioner) have'. No. 36, in page 30, line 37, leave out 'has' and insert 'and the nearest relative of the patient (if any) have'. No. 37, in page 30, line 37, leave out 'has' and insert 'one person appointed for the purposes of this paragraph by the Secretary of State (not being a medical practitioner) and the nearest relative of the patient (if any) have '.

Mr. Pitt

I am tempted to say that this is positively my last appearance. 1 shall not detain the House, as I do not intend to speak to each amendment. Each amendment puts forward the concept of the nearest relative becoming part of the decision-making process on whether the patient is capable of understanding. They would give the nearest relative a role in the decision whether a person is capable of giving consent. They add the nearest relative to the panel of two wise people who have to decide such questions.

A relative has a far more intimate concern for the patient. Without doubt, he will be more conversant with his quirks and the ramifications of his illness. Thai is especially important in psychiatric cases. If one lives close to a person day in day out, one will be aware of his quirks and the ramifications of his illness. Although medically and clinically qualified, doctors will not, by the very nature of their contact with the patient, be so aware of his idiosyncrasies.

There is a counter argument, that the relative may not want such responsibility. They would not be compelled to take responsibility. I do not wish anyone to infer from either the amendment or my remarks that a relative will be compelled to meet the two wise people and make a decision. It is a voluntary act—a permissive piece of legislation that will permit a concerned relative, who wants the best for the patient, to be involved.

Such an option allows a relative to make a significant input to the treatment of the patient. He can give an important and valuable assessment to the medical practitioners when they assess the degree of mental illness being suffered by the patient.

Mr. Geoffrey Finsberg

The House will have sympathy with the hon. Gentleman's proposal that a patient's family should be included in decisions about treatment. In many cases that is part of the theraputic process. Both sides of the Special Standing Committee wished to ensure that relatives were consulted and informed about treatment and other statutory provisions. My hon. Friend the Member for Abingdon (Mr. Benyon) successfully moved a new clause which ensures that relatives are told when a detained patient is about to be discharged. We also promised to refer other questions to the commission so that in the code of practice it could include advice on consultation with the patient's family.

It is important that consultation takes place, especially on treatments of special concern covered by clause 41. It would usually be desirable for the independent psychiatrist, or the three people who assess whether the patient has given informed consent, to meet the patient's family to see what they think, because as the hon. Gentleman said, the family should be in the best position to know about the patient. It may well be able to explain his worries and it may have its own views about what is best for him. However, it would be wrong for the relative to be involved formally in decisions on treatment. There may well be tensions and resentments within the family which could be aggravated if the patient felt that his relative had either forced him to have treatment or withheld treatment from him.

In most cases, the relatives will find the decision a difficult and painful one, and probably would not welcome the responsibility that these amendments would give them. There would probably be disagreement within the family. After all, the legal "nearest relative" may not be the only person who is close to the patient and may not always be the person who is most closely involved. It would be harmful to write the nearest relative into the consent procedures, but I believe that the relatives should normally be consulted before treatment is given without the patient's consent. I shall draw that point to the attention of the commission so that it can consider it for its code of practice.

The other suggestion is to involve an independent nonmedical person as well as the independent psychiatrist. I do not think that would be helpful. The patient himself will be signing something to show that he has consented, and his responsible medical officer will sign a certificate to confirm his view that the patient understands what is involved. After all, we are talking about the ordinary doctor-patient relationship, where the patient agrees to the treatment that his doctor offers to him. The treatments will be fairly routine. We have made other arrangements for treatments of special concern, such as psycho-surgery. Introducing a third person to check on the patient's consent for the less serious forms of treatment would make the procedures unduly cumbersome.

Amendment No. 35 raises a different point, and suggests that an independent layman should join the independent psychiatrist in deciding whether treatment should be given. Treatment would not be given unless they both agreed. It is a medical question whether the patient needs a particular treatment or plan of treatment, and we should not accept an amendment that would make the independent psychiatrist subject to a lay veto. I do not believe that that is what the hon. Gentleman wants.

We have required the psychiatrist to consult the professional staff who have been caring for the patient, but the final responsibility for decisions on treatment must surely be a medical one.

I hope that the hon. Gentleman will withdraw his amendments in view of the explanations I have given.

Mr. Pitt

In view of the Minister's explanations, especially his remarks about the code of practice, I shall seek the leave of the House to withdraw the amendment.

The idea behind the later amendments was to introduce the "next friend" principle into the legislation. I shall not delay the House further, and beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 27, in page 30, line 8, at end insert— '(3) Before giving a certificate under subsection (2)(b)above the medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient's medical treatment, and of those persons one shall be a nurse and the other shall be neither a nurse nor a medical practitioner.'.—[ Mr Geoffrey Finsberg.]

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