REQUIREMENTS AS TO MEDICAL EVIDENCE

HC Deb 18 October 1982 vol 29 cc103-8

'After subsection (1) of section 62 of the principal Act (requirements as to medical evidence) there shall be inserted— (lA) In the case of an offender who is suffering from psychopathic disorder or mental impairment, one of the medical practitioners whose evidence is taken into account under paragraph(a)of subsection (1) of section 60 of this Act and who is a practitioner approved for the purposes of section 28 of this Act by a local health authority as having special experience in the diagnosis or treatment of mental disorders shall consult the medical practitioner who would be in charge of the treatment of the offender and other persons who are professionally concerned with the medical treatment of patients suffering from mental disorder and who work at the hospital to which the offender would be admitted as a result of an order by the court authorising the admission to and detention of the offender in that hospital and his evidence shall include a statement of their opinions so far as they relate to the conditions set out in subsection (1A) of section 60 of this Act.'.—[Mr. Stan Thorne.] Brought up, and read the First time.

The Deputy Speaker (Mr. Bernard Weatherill)

With this we may take the following amendments: No. 105, in clause 4, page 4, line 18, at end add — '(4) After subsection (3) there shall be inserted the following subsection: '(3A) Before making a recommendation under subsection (3) of this section in respect of a patient suffering from psychopathic disorder or mental impairment one of the medical practitioners concerned shall consult the medical practitioner who would be in charge of the patient's treatment and other persons who are professionally concerned with the medical treatment of patients suffering from mental disorder and who work at the hospital to which the patient would be admitted as a result of an application for admission for treatment and his recommendation shall include a statement of their opinions so far as they relate to the conditions set out in paragraphs(b)of subsections (2) of this section.'. No. 106, in clause 10, page 7, line 28, at end add— '(1B) Before furnishing a report under subsection (1A) of this section the responsible medical officer shall consult one or more other persons who have been professionally concerned with the patient's medical treatment.'. Government No. 11.

No. 96, in clause 18, page 12, line 29, at end add '(6) After subsection (3) there shall be inserted '(3A) The Secretary of State shall make regulations concerning the consultations which shall be undertaken by the managers of a hospital in considering the arrangements to be made for the admission of the offender to that hospital in the event of such an order being made by the court. '. Government Nos. 27 and 110.

No. 48, in clause 49, page 35, line 11, after 'professions', insert 'and of such other interests'. Government No. 69.

No. 70, in clause 60, page 40, line 27, after 'professions', insert 'and of such other interests'.

Mr. Stan Thorne

I beg to move, That the clause be read a Second time.

Inevitably, I shall make a lengthy—but I hope that it will prove to be a relatively brief—comment on the new clause and two amendments standing in my name and, indeed, the Government's amendment which seeks to remove a clause which was inserted in Standing Committee. If it were in my power to direct where the new clause should be inserted in the Bill, I would put it immediately following clause 18 to which it directly relates.

The clause brings an element of multidisciplinary consultation into one of the medical recommendations that would be required to admit a psychopathic or mentally impaired offender to hospital for treatment. Arguments for making such an extension are similar to those applying to the amendment to clause 4 applying to admissions under section 26, and I shall come to clause 4 in a moment.

Once a person has been admitted to hospital, as a result of an admission under section 26 or section 60, it is the intention of the Mental Health Act that persons should receive treatment as patients, irrespective of the different routes by which they come to hospital. The clause makes only a small addition to the procedure involved in a section 60 admission. Clause 18(5) already requires that the medical practitioner who will be in charge of the patient's treatment in hospital, or the hospital's managers, be consulted prior to a decision by the court.

Amendment No. 105, as I said earlier, refers to clause 4. It refers to section 26(3) of the Mental Health Act. The effect of the amendment is to add a further subsection (3A). Admissions under section 26 require written recommendations by two doctors. The new subsection would require that, in the case of a patient suffering from psychopathic disorder or mental impairment, one of those doctors must consult the various clinical professions at the hospital to which the patient is likely to be admitted. He must ascertain their opinion whether, given that the patient has a disorder of a nature or degree which makes it appropriate for him to receive medical treatment in hospital, such treatment is likely to alleviate or prevent a deterioration of his condition.

It is proposed, therefore, that the decision of the doctors admitting the patient shall be informed by the opinions of the people who will actually have to carry through their decisions. In my view, that is reasonable. It is part of the case that was argued in Standing Committee, when reference was made to a multidisciplinary team approach to the treatment and care of the mentally ill. The purpose of the "likelihood to benefit from treatment" criterion is to ensure that in cases of psychopathic disorder and mental impairment detention in hospital will be permitted only for people who are treatable. Detention for its own sake is excluded. The White Paper, Review of the Mental Health Act 1959, stated that the weight of current medical opinion is that most psychopaths are not likely to benefit from treatment in hospital. The White Paper added there are some persons suffering from psychopathic disorder who can be helped by detention in hospital". Who is to predict in which category a prospective patient belongs and how can we ensure that patients can benefit from developments in psychological and other nonmedical clinical treatments? The answer was debated in Committee, and it is a pity that the Government did not take its sensible proposals on board.They are to give those responsible for admitting the patient and prescribing treatment the chance to use such expertise in forming their opinion.

It may be argued against the amendment that the clinical team which will be treating the patient does not exist before the patient has been admitted. I see the Minister nodding in agreement with that argument but it is an extremely weak one. If an admission is under consideration, there must be one person, or more, whose skill makes an admission worth considering. Therefore, they can be consulted. That was the essence of part of the case originally put to the Government, which unhappily they wish to ignore.

I am sorry to speak at length, but I did say that I would cover several important subjects within this section. The effect of amendment No. 106 is to require the responsible medical officer to consult the rest of the multidisciplinary team who have been caring for the patient before he makes a report in which he certifies that the patient is suffering from a mental disorder other than that from which he was believed to be suffering when admitted. The significance of the amendment lies in the final phrase of the first part of clause 101, which states that the detention of the patient must cease if he is suffering from psychopathic or mental impairment and if treatment is unlikely to be effective. No one should be detained unnecessarily. Equally, no one should be deprived of treatment if it is available, even if it is treatment provided by non-medical professions. The amendment ensures that the decision is multidisciplinary. The wording of the amendment is identical to that of amendment No. 11 to clause 12 and I hope that that will encourage the Minister to accept it.

Government amendment No. 69 seeks to delete clause 60, which was agreed in Committee. Obviously, the Minister will give his reasons for wishing to remove the clause, which requires the Secretary of State to draw up regulations regarding consultation with non-medical professions about the treatment of detained patients. He is required to put the multidisciplinary clinical team work, which is the basis of modern psychiatric services, on to a proper legal footing. Members of the Standing Committee will recall continual references to "good practice". Such practice already exists and the wording is therefore unnecessary. Certain members said that it might even be harmful to make such regulations a legal requirement.

9.45 pm

Since the clause was accepted, the deficiencies in the law that it tries to repair have become much more conspicuous as a result of the events at Wexham Park hospital in Slough. Although the clause seemed highly desirable when it was proposed in Committee, it now seems to be essential in order to avoid a recurrence of such problems. I remind hon. Members that the problem at Wexham Park hospital was that a consultant prescribed a treatment that was unacceptable not only to the patient but to the professional staff who had to administer it. The nurses ,did not agree that the prescribed treatment was necessary and later events seemed to confirm that view. That happened because doctors were abusing their powers under the Mental Health Act. Clauses 41 and 42 may go some way to resolving the problems that arise out of a patient's unwillingness to accept treatment, but it would depend on the nature of the treatment. However, the clauses do not deal with the problems that arise from a disagreement between the consultant and other professional staff. The problems at Wexham Park hospital were complex and remain unresolved, despite an inquiry by East Berkshire health authority.

However, it is worth quoting one conclusion of the inquiry to illustrate the deficiencies in the law that I have mentioned: A true understanding of the Consultant's role is essential to any multi-disciplinary…team. It is the consultant who is ultimately charged with responsibility for the care and treatment of patients in hospital. This does not mean that he is entitled to be autocratic or unreasonable or to disregard the opinions of other professionals. Indeed, it confers upon him an obligation to consider those opinions with the greatest care, to be responsive and to keep himself yell informed. Nor does it mean that the Consultant is always right. It should, however, entail a realisation by other professions that the deliberate obstruction of or countermanding of the consultant's proposals for treatment is to arrogate to themselves the responsibility for patient care of a kind which they do not have in law or in practice. If that is a fair statement of the law, as it purports to be, it reveals some deficiencies. Although on occasion the non-medical profess ions may, on the basis of their special expertise, judge that the doctor is mistaken and is proposing inappropr aate treatment, they have no right in law to question his judgment or to intervene to protect the patient. It means that patients have no right in law to a multidisciplinary approach to their treatment. If a doctor wishes to ignore the views and skills of the non-medical professions, he may not be following good practice, but he is perfectly entitled to do so. The ethical obligation of each professional who deals with a patient to that patient and the duty of care owed by each professional to the patient is subordinate to the doctor's judgment. There is no explicit obligation on a doctor to temper his decision because he does not have a monopoly of wisdom and because other profess ions may have skills, knowledge and competences that he does not possess.

Evidence given at disaster inquiries shows that some doctors believe that they are entitled to be autocratic and to disregard other opinions. An extension of the law is definitely required. The appropriate way to reconcile the clinical contributions and personal obligations to the patient with the decision-making responsibilities of the medical profession is to place a statutory obligation on the medical profession to consult the other professions. If such consultations reveal profound disagreements about the treatment of a particular patient, such as occurred at Normansfield, Wexham Park and other places, the matter should be referred to the Mental Health Act Commission for a second opinion.

I hope that the Secretary of State will specify in the regulations under clause 60—about which I hope that he will have second thoughts and so withdraw amendment No. 69—a rational procedure for handling differences in judgment between the professions. I hope that the Government will make a positive response.

Mr. Pitt

I support new clause 11 and I shall speak about amendments Nos 48, 70, 69 and 110. There appears to be some muddled thinking. Clause 60 was agreed in Committee. Unfortunately, I was not a member of the Committee, but from my reading of the proceedings it seems that clause 60 is necessary. There is a strong argument for consultation with a multidisciplinary team. I am puzzled and confused about the Government choosing to withdraw the clause when there was such strong support for it in Committee.

My amendment No. 70 amends clause 60, reinforces it and provides a statutory duty to represent patients' interests, through community health councils, for example. Instead of making a multidisciplinary team a statutory requirement, amendment No. 110 emasculates the clause. That is why I can support neither amendment No. 69 nor amendment No. 110. I ask the Minister to reconsider his position. Clause 60 is vital to the Bill. The Minister should seriously consider amendments Nos 48 and 70 because they make multidisciplinary representation stronger and give the Bill more bite.

Mr. Terry Davis

I support new clause 11 and amendment Nos. 105 and 106, but I shall address most of my remarks to the other amendments because my hon. Friend the Member for Preston, South (Mr. Thorne) has explained the purpose of his amendments and will have secured the support of the House. Amendment No. 11 appears to be a good amendment. It provides for consultation with other people, who have been professionally concerned with the patient, before detention is renewed. That appears to be most desirable and we therefore welcome amendment No. 11.

I turn now to Government amendment No. 110. I was a little surprised by the remarks of the hon. Member for Croydon, North-West (Mr. Pitt), because amendment No. 110 would broaden the amount of consultation that would take place in connection with a code of practice. My understanding is that at the moment the Bill would ensure that there is consultation with the organisations that are professionally concerned about the code of practice before it is brought into being. The Government are now suggesting that there should be wider consultation -than simply with the professions and such consultation would include organisations which purport to represent, and frequently do represent, the interests of patients.

Mr. Pitt

I am sorry if I did not make myself clear during my exposition at the beginning of my remarks. As I see it, by removing the relevant words as he may recognise as being representative of members of such parts of the medical profession and of members of such other professions subsection (3) is emasculated. Subsection (3) exists perfectly adequately by itself, as far as it goes. Amendment No. 48 seeks to reinforce that subsection of the clause. That is why I cannot accept amendment No. 110.

Mr. Davis

I await the Minister's exposition because there seems to be little between the hon. Gentleman and the Minister. I believe the Minister is trying to broaden consultation about the code of practice to ensure that consultation would take place with other organisations, and not only with organisations that represent professions. Indeed, the move seems to be on all fours with similar moves that were made in Committee with regard to clauses 41 and 42, where we deleted the references to the professions to ensure that there would be wider consultation about treatment. Subject to what the Minister says, the Opposition will welcome amendment No. 110.

We give an unreserved welcome to amendment No. 27, not least because its wording is indentical to an amendment that the Opposition tabled in the Special Standing Committee. Amendment No. 27 requires consultation by the second doctor with two other people who have been professionally concerned with the patient. This consultation will take place with regard to treatment under clause 41. The Opposition put forward an identical amendment in Committee but we were told by the Under-Secretary of State that the wording was not right. Now we see the identical wording. I am totally baffled but welcome with pleasure—

Mr. Geoffrey Finsberg

I am baffled.

Mr. Davis

The Under-Secretary of State is very honest when he says that he is baffled. We had the impression at the time that he was scratching around for reasons to oppose it and to refuse to accept it. We are delighted that the wording is all right, especially since we took the wording from the Government's provisions in another clause.

I regret that I am unable to give that unqualified welcome to amendment No. 69. Indeed, I am not able to welcome it at all.

Mr. Pitt

It is the same as amendment No. 110.

Mr. Davis

I am having some difficulty with amendment No. 110. I shall listen to what the Minister says.

I have no difficulty whatsoever with amendment No. 69. I am clear about its meaning. It deletes clause 60 which was added, perhaps inadvertently, in Committee. Clause 60 was added because there was no vote registered against it although there were some subsequent manoeuvres, but the clause was eventually allowed to stand. It is a serious clause because it provides for the Secretary of State to make regulations about the consultations that will take place between the doctor and other professions about the treatment of a detained patient.

It is common ground between both sides of the House—it was common ground in Committee—that there should be consultations between the responsible medical officer and other people who are professionally concerned with the treatment of the detained patient.

That seems to be agreed. The point of disagreement appears to be on whether the Minister should make regulations about that consultation. We feel that it is right for regulations to be made. We have reservations about the way in which some psychiatrists—I emphasise that it is only some—engage in consultation with other professions. There have been examples of psychiatrists refusing to consult other members of other professions. There have been specific examples at hospitals in the West Midlands. It is disturbing when a psychiatrist refuses —

It being Ten o'clock, the debate stood adjourned.