HL Deb 25 January 1982 vol 426 cc826-52

House again in Committee.

[LORD DRUMALBYN in the Chair.]

Clause 38 [Consent to treatment]:

Lord Hooson moved Amendment No. 75: Page 27, line 18, leave out from beginning to end of line 20 and insert ("be required for any medical treatment specified in this section given to him for the mental disorder from which he is suffering.").

The noble Lord said: With your Lordships' permission, I will deal with Amendments Nos. 75 to 79 inclusive and touch on Amendments Nos. 81 to 91 A, and my noble friend Lord Kilmarnock, who is also a sponsor of Amendments Nos. 75 to 79, will deal with the detail of Amendments Nos. 81 to 91A. May I say at once that this the most controversial clause in this very important Bill, and I appreciate immediately that here we are dealing with one of the most delicate situations known in a civilised world: how we can deal with mentally ill or mentally impaired patients whose capacity is limited; whether treatment should be given to them—sometimes very serious treatment indeed—without their consent; and who is to determine whether or not they are able to give consent.

It seems to me that Clause 38 is of vital importance as drafted, for four specific reasons, with which I will deal. It is the first legislative provision which specifically empowers psychiatrists to treat detained mental patients against their will, without their consent. No such power existed in the 1959 Act, and though there has been legal controversy as to whether or not it existed, and though in the interpretation of statutes one is not allowed to look at debates in Hansard, I do not think that in your Lordships' House or in the other place it was ever suggested that psychiatrists were given that power.

Secondly, no such power as is envisaged under Clause 38 as drafted exists at common law. The third point is that it goes against the recommendations of consent to treatments made by the very important committee which sat under the noble Lord, Lord Butler, and which, incidentally, included three very distinguished psychiatrists in its membership. Fourthly, it goes against the 1978 White Paper recommendation, and though that was a White Paper of a different Government it emanated from the same department. Therefore, this is clearly a very important clause, and whichever way we resolve the differences between us we must recognise that it is a matter of very important principle. Therefore, I do not intend to apologise to your Lordships for taking a considerably longer time than I have done with other amendments and than has been taken with most of the other amendments that have come before your Lordships.

I am sure that your Lordships' Committee will share my disquiet at a clause which gives doctors such wide powers and at the same time departs radically from long-established common law principles. My disquiet is greatly increased by the fact that in important respects the clause ignores the recommendations of the Butler Committee without, I think, sufficient grounds being given for that departure. My amendments—and to have a proper understanding of them one really needs to look at the clause as it would be if the amendments put forward by my noble friend Lord Kilmarnock, my noble friend Lord Winstanley and myself are read in toto—virtually replace the present Clause 38 with a very different emphasis.

So that your Lordships can properly appreciate what I am trying to achieve, let me say that my amendments are designed to achieve two fundamental objectives. The first is to retain the basic right of patients who are capable of understanding the treatment offered to them to refuse that treatment except in especially defined situations of necessity—and they must be very carefully defined. The second is to ensure that the capacity of a patient to understand, and hence to be able to refuse treatment, is determined by a body which is genuinely independent of the medical profession. When I say this I also want to emphasise that I think it is very important that the medical profession itself should have the protection which an independent element gives them.

Perhaps I may refer to subsection (1) and invite your Lordships' attention to it for a moment. One sees that in the original clause it reads: Subject to the provisions of this section, the consent of a patient detained under the principal Act or this Act shall not be required… subject to certain provisions; whereas my amendment puts the positive side to it when it says: Subject to the provisions of this section, the consent of a patient detained under the principal Act or this Act shall be required… So we set out what I regard as the basic general principle which we have always known in this country.

Now let me deal with the two vital principles which I seek to achieve by this series of amendments, and let me deal first of all with the right of a comprehending patient to refuse treatment. The present clause as drafted gives psychiatrists the power to treat or detain patients without their consent provided that a concurrent second opinion is obtained from a Government-appointed independent psychiatrist. The only limit to these wide-ranging powers, it seems to me, is that a patient's consent will be required to certain treatments of special concern. These treatments are not defined, and it is clear from the White Paper that only such extreme treatments as psycho-surgery will be classified as treatments of special concern. This means that treatments of choice, such as electro-convulsive therapy, could be given to a non-consenting patient without any safeguard other than a second doctor's opinion.

I have the greatest regard for the ethics which bind a doctor's behaviour and judgment, and we in this country are very fortunate to have a medical profession of a very high standard. In my professional life I have come into contact frequently with very distinguished psychiatrists, and I have the highest regard for them; but I will come to the basic question of principle, as to whether they should be given this power to decide whether a patient is capable of consenting. Whether that is a medical decision or whether it is not in essence a legal decision, it is a decision which affects the rights of an individual in the community; there are dangers which are inherent in it; and countries which (as it were) have allowed this power to slip into the hands of doctors alone, without any safeguard, have learned to regret it.

Clearly these new provisions make inroads into the mental patient's common law rights to refuse treatment, but my principal objection is that the Government's proposals fail to make any distinction between the rights of a patient who is capable of understanding the treatment offered him and the rights of a patient who is not. Both are likely to have a refusal of treatment overruled on the say-so of a second psychiatrist.

Let me quote what the Butler Committee—and, as I have reminded the Committee, it had three distinguished psychiatrists on it—said about this: Where a patient's conduct does not prevent him from appreciating what is involved, we do not think it justifiable to impose treatment without his consent". That is a very weighty opinion and I should have thought that it needed a great deal of justification to avoid enacting it into legislation. Behind that statement of principle lies the recognition of an important fact that among the 7,000 patients who at any time are detained under the Act are many whose faculties of reasoning and powers of understanding are quite sufficient to understand a treatment proposal.

Those suffering from severe subnormality or who are going through a period of gross delusion clearly cannot he said to appreciate the nature and purpose of a treatment; but others suffering from, say, psychopathic disorders or effective disorders may have the intellectual capacity and the necessary insight to appreciate what is involved in a treatment proposal. The fact that a patient at some stage in the past has been placed in detention under the Mental Health Act does not necessarily mean that he is lacking in insight and appreciation. Nor is it the fact that a person's detention is legally justified, perhaps principally, for the protection of others. It does not necessarily imply intellectual deficit or lack of insight on his part. The Butler Committee recognised this important factual distinction, as did the White Paper in 1978. But the later White Paper and the Bill appear to ignore it.

My own amendments seek to recognise this fact and to restore the principle that a patient should not automatically be stripped of his most fundamental common law rights of self-determination merely by virtue of his admission to a mental hospital. One can think of where that road could lead us eventually. I ask the Government to justify this departure from the Butler Committee principle on this point and I ask the Committee to consider whether, except in a situation of emergency—and my amendments allow for situations of emergency to be dealt with, for we all know they are likely to occur—the comprehending patient's objection to treatment such as ECT should be overridden.

It is important when dealing with this delicate sphere to be practical. It is important to recognise that the effect of our amendment is not to give patients an unqualified right of refusal. Doctors will still have the power to give emergency treatment to prevent patients from injuring themselves or others—for example, under the provisions of our amendments to subsection (7). In such cases, they could override a patient's refusal or consent in the emergency. Furthermore, it must be demonstrated that doctors have very considerable powers of persuasion, given the fact that it is they who determine a patient's eventual release date; and the very relationship of doctor and patient gives the doctor tremendous persuasive powers. But ultimately, when persuasion fails and no real emergency obtains, the comprehending patient, as a matter of principle, I believe, should retain his right to self-determination.

If that is accepted, there still remain two questions of interpretation which are dealt with in my series of amendments. First, the test of the capacity to consent; and, secondly, the body that should apply this test. If I come to the first question, the test of capacity to consent, the test that I have proposed is whether the patient can understand the nature, purpose and effects of the treatment. One finds this in Amendment No. 83.

This test—and I do not claim to have invented it myself—has the authority of the Butler Committee behind it. It also accords with other medico-legal criteria such as, for example, those governing fitness to plead in court and contractual capacity. There are certain medico-legal tests laid down. This test is introduced to exclude as incapable of consent all those suffering from intellectual defects or delusions about their treatment and whose thinking is so affected that they lack any insight into the purpose of the treatment. The question was posed to me: "What do you do with a patient who understands well the nature of the treatment and how it will affect him, who has no real objection to it when you ask whether he will consent to it, but who says, 'A man from Mars has told me to object'?". That is the kind of practical problem which was posed to me. I would answer that by saying that that patient cannot possibly understand the purpose of the treatment as he is so deluded. The three criteria must be satisfied.

Now, the independent body to consider the matter. If the capacity to understand the treatment is to be the determinant of the patient's right to refuse treatment, it is obviously crucially important who determines whether the patient has this capacity. My proposal is that it should be the mental health review tribunal, comprising a doctor, a layman and a lawyer, as it does at present. But the sole function of the whole multidisciplinary tribunal is to determine the question of capacity to consent. That, I maintain, is not purely a medical issue. It is much wider than that. If the tribunal find that a patient is capable of understanding and therefore capable of consenting to treatment, then his refusal to accept the treatment, if that is his view, would be respected. If they find him incompetent to consent, then the main tribunal team would cease to operate at that stage, because the next step in the procedure is a purely medical one. It is the medical member alone—and it is one doctor assessing another doctor's evidence—who would then proceed to determine the question of whether the incompetent patient should have the treatment or course of treatment proposed by the responsible medical officer. So there is an additional safeguard brought in of the doctor determining what is really the purely medical issue.

Therefore, to appreciate this, there is the legal decision as to the competence; and this seems to me to be the key to the whole issue: whether the decision of competence is one which is purely medical or whether it is much wider in its application than that. On that issue, all three members will determine whether the patient had or had not the right to refuse treatment. The second stage is the clinical decision on the advisability of treatment. It only arises where the patient is incapable of consent and is held to be so by the whole tribunal. But the clinical decision will then be taken by the medical member alone.

I have dwelt on this point at length because my amendments are designed to achieve a compromise between two viewpoints. It is a compromise that arises from a long-standing controversy. On the one hand, some organisations have for a long time ad-advocated multidisciplinary reviews of treatment decisions. I am not suggesting that that should be acknowledged in this Bill; but those arguments found favour in the 1978 White Paper and they reflect, I am told, although this is not within my own knowledge, medico-legal practice that is widespread in the United States of America.

On the other hand, the Royal College of Psychiatrists—a very distinguished body—has been opposed to the principle of lay interference with clinical decisions, and on this point can pray in support the views of the Butler Committee and of the present Government as reflected in this Bill and in their White Paper. My compromise proposals, which are of great importance, try to do justice to both sides. On the one hand, there is the multidisciplinary involvement in the legal question of competence. On the other hand, there is to be respect for the principle of the purely clinical decisions, and that decision should be taken by medically qualified people alone.

My amendment therefore renders the medical man what is clinical and to the full tribunal what is legal. I present it not only as a desirable compromise but also as right in principle and practicable. On both the point of principle and that of practicability I have canvassed the view of certain mental health review tribunal chairmen. I have received letters expressing not only support for my proposals but also assuringly on the practicability point.

Let me deal with the question of principle. The principle of an independent multidisciplinary review of the competence question is right first of all because it is a decision to determine what a patient's civil rights are—that is what it determines, nothing less than that. As such, it is broadly a legal question. This question can properly be put to a tribunal which operates a legal test. In my Second Reading speech I referred the fact. When a man is brought up in court and the court has to consider whether he is fit to plead to the indictment, of course the medical evidence is all important but it is not determined by the doctor. The court determines it; the jury determines it because what happens to him thereafter greatly affects his rights as a citizen.

The Court of Protection, when it has to consider what protection has to be given over property, and so on, is greatly influenced by medical evidence but it does not let just the doctors decide it. Is the consent to treatment—and very important treatment—of any less importance in the scale of legal rights? I should like to mention on this point that I have received fulsome support from Professor Sir John Wood, who is one of the most distinguished tribunal chairmen in this country. He also assures me of his support for the practicality of the proposals.

I have great respect for the medical profession in general and for the psychiatric branch in particular. Let me ask the question why a doctor alone should not decide the question of competency. My answer is not only that it is a legal question but also that there is a great danger in giving to the medical profession too extensive powers to police themselves over questions of compulsory treatment—note "compulsory treatment"—of patients. The profession already have, by the very nature of the illnesses with which they deal and the circumstances in which they deal with them, enormous powers over those in their care. There is always a danger of professional solidarity and overzealousness in pursuit of the therapeutic end.

On the competency question, the involvement of lawyers and laymen in the decision-making process would reassure both patients and potential patients—and the potential patients are almost as important here as the patients—and produce some counterbalance to the danger of a psychiatric monopoly over the freedom of individuals suffering from psychiatric disorders. One can more readily accept psychiatrists policing themselves over the treatment of the incompetent if one has a proper independent body to determine whether or not a patient really is incapable of deciding for himself.

I have no doubt that the Government will say, "Well, of course our present proposals are much simpler; we would only need one other person, an independent psychiatrist to be brought in, whereas under your proposal you would need two others"—that is the two other members of the tribunal. The Government's proposals require the setting up of a panel of independent psychiatrists to give their opinion. These independent psychiatrists would lack the quasi-judicial expertise and experience of tribunals. In contrast, the mental health tribunal would bring to the competency decisions both their greater experience of legal decisions in their normal work and the specific approach of their legal member. They would be able to rely and be guided by the medical expertise of their medical member; but they would be assessing it. They would be facilitiated in their decision by having the guidance of their medical member.

Then there is the question of the availability of tribunals to give decisions at short notice. Even under the Government's provisions they would have to bring the independent psychiatrists in at short notice. I accept that in certain circumstances the tribunal would have to be convened at short notice. I am assured by those who are in a much better position than I am to judge that there is no difficulty envisaged about this matter. The tribunals are in any event making regular visits to the special hospitals for hearings on other matters concerning other sections of the principal Act. I am told that there is really no practical difficulty.

In conclusion, I think that this Committee is faced with a very important decision of principle here. We deal with mentally handicapped and mentally impaired people in depth in this way every 20 years or so in this House, so it is very important that we get it right and if we do not get it right this time it will be many years before we can put it right. What I am concerned about is the creation of a highly therapeutic atmosphere in our mental hospitals. If psychiatrists are given too great powers to treat patients against their will, there is a danger that psychiatry may be associated in the minds of many patients with coercion.

We are dealing with a minority of patients, and this is one of the hallmarks of a civilisation that its legislature can give time to considering the effects of legislation for this kind on a minority. The number of patients which my amendment will affect may be small; but their rights are none the less vital for them and vital to a civilised country. We have to balance first of all the clinical independence of the doctors which we all appreciate very much. We are grateful as a country that we have a medical profession with such high ethical standards. I appreciate as a member of a very independent profession myself the importance of the clinical independence of the doctors. Against it there must be counter-balanced the right of self-determination of the comprehending patient. That is what is involved in this clause and that is why I have taken such a deal of the time of your Lordships to talk about the amendments. Although I have been officially dealing with simply one, I have attempted to lay before your Lordships the outline of what I seek to achieve by the totality of the amendments to this clause. I beg to move Amendment No. 75.

8.30 p.m.

Lord Renton

The noble Lord, Lord Hooson, has performed a most valuable service by studying this matter in great depth and presenting it so fully and clearly as he has done to the Committee. The points he made about patients' rights are so clearly well made that I do not think the Government could leave the Bill in its present state with regard to that part of the case made by the noble Lord. May I say in passing that of course what is in Clause 38 and in the amendments refers essentially to those people who are mentally ill, but does not refer to those mentally impaired people who are not also mentally ill and, not being mentally ill, they are untreatable. I think it is right to make that point clear so that we understand each other.

Of course, both the Government and the noble Lord, Lord Hooson, have acknowledged the necessity to enable treatment to be given, without consent if necessary, to prevent a serious deterioration of the patient's condition. That is a power which will have to be exercised in a very responsible way because on occasion it could be interpreted—and I hope it will not be taken amiss when I say so—too liberally.

So much for the patient's rights. As to the people who are to have the responsibility for making the ultimate decision, I agree with the noble Lord that it is not really right simply to get a second medical opinion, as the Bill at present envisages. Something more independent and broader has got to be inserted in the Bill, I would have thought. It is no disrespect to the medical profession—and I speak as the son of a doctor—when I say that if one doctor has given an opinion and another doctor is called in to confirm or change that opinion, the instinct of the doctor who is called in will be to support the first opinion if he can reasonably do so. Therefore there will not be sufficient safeguard of the patient's rights if in the Bill we just leave the matter as envisaged by the Government.

The question arises as to whether the mental health review tribunal would be the right body or whether something more elaborate is needed. The noble Lord mentioned a word which always rather horrifies me, and that is the word "multi-disciplinary". I do not think you can say that a body which consists of a lawyer, a doctor and a layman can be described as "multidisciplinary". That is not my idea of what that somewhat forbidding kind of body means; but I think that we do not need more than a lawyer, a doctor and a layman to decide this matter.

Therefore I go along with the noble Lord also in his suggestion that the decision should be taken by a mental health review tribunal. We heard this afternoon, when my noble friend Lord Belstead was moving his amendments dealing with mental health review tribunals—indeed he added a new schedule to the Bill to deal with just that matter—that their geographical distribution will be quite considerable and their availability very ready indeed. I should have thought that in conjunction with all the other work that they will be called upon to do it would not be impracticable, or would lead to delay, for them to be given this responsibility, as the noble Lord has suggested. Therefore for the reasons which he has given and which there is no need for me to underline any further, I support him and I hope that my noble friend on the Front Bench will give a very sympathetic ear to what he has said.

Lord Hunter of Newington

I am very sorry that I missed the latter part of the debate during the Second Reading of this Bill, although I have of course studied Hansard with care. The range of that debate was remarkable in its tone and breadth, extending from broad issues of policy to detail. Now, as I conceive it, we must exercise a very important judgment. What are the issues that have been discussed on which there is a large area of agreement, which should be enshrined in the Bill and which are better left to regulations by the Minister or supervised and updated by the Mental Health Act Commission?

In what I say I speak as a medical man with some 30 years' clinical experience, but not in the field of psychiatry. My special interest was clinical pharmacology and the introduction of new drugs. I therefore specialised in treatment. From this point of view can look critically at the psychiatric scene, and of course accurate treatment requires accurate diagnosis and a long training, such as modern psychiatrists have.

I am amazed at the improvements introduced in the last quarter of a century, and the scene even now is a credit to this country and to all those who have contributed to that change. Team work and collaboration between the different disciplines is vitally necessary in medical work, and in the field of psychiatry there are special needs, well known to your Lordships, which are not so evident in other fields. Co-operation and the necessity for the professions to have job fulfilment are also very vital, because they are vital to recruitment. I am sure that this Committee is unanimous in the view that recruitment of the best people from the various professions is necessary. You cannot compensate for that by rules and regulations. So the climate in which the psychiatrists, nurses, social workers and others operate, is a prerequisite for success.

What then is the best framework for action and recruitment? One also has to recognise that diagnosis in this field is by no means as accurate as in many other medical fields. Often the diagnosis is in part at least a descriptive label. Unfortunately, this does not mean that any person's opinion is as good as the next man's: it means that more research is required in the field of psychiatric disorders. I might also say that those doctors who have the benefit of the new extended and rigorous post-graduate training are only now beginning to get senior posts in psychiatry. I believe them to be equipped for the twentieth century.

One of the changes that are taking place is this. When I was a medical student I was taught that a doctor had a responsibility to his patient and to his conscience. Now, increasingly, doctors are recognising, as I shall illustrate in a moment, that they have a very much wider responsibility and they must be accountable to society in a host of ways.

The proposals in relation to consent to medical treatment and the form of a second opinion, as formulated in the Bill, are broadly acceptable to the Royal College of Psychiatrists, many of whom have moved very substantially from their original points of view. They have arrived at this view only after a considerable period of debate, and they undoubtedly wish to see reinforced the principle which is applied in good practice at the present time; namely, that a second psychiatric opinion is obtained when treatment is proposed for a detained patient, or when he may not fully appreciate the nature of the proposed treatment or is voicing an objection which is based upon a failure to understand or which is irrational.

Doctors have always taken the view that decisions about treatment are essentially clinical matters, and that a second opinion should be independent and, also, independently clinical. Laymen would not be competent or able to give a technical opinion, to make a professional judgment or to understand the clinical implications—which is one of the most important consequences—involved in rejecting a proposed form of treatment. I have to confess that I should he in the same position in the field of law.

The proposals in the Bill provide for an independent psychiatric opinion responsible to the Mental Health Act Commission, which would include lay members among its membership. I hope that at a suitable moment the Minister will tell us more about this, be cause some flesh has to be put on the bones. But I myself see it as not only closely monitoring second opinions, but as issuing guidelines leading to a steady improvement in practice, ensuring in this way that the patient's rights and interests are continually safeguarded. So I believe that the profession is accepting the necessity—in fact, the desirability—of the commission.

The amendments that have been proposed so eloquently and, indeed, brilliantly by the noble Lord, Lord Hooson, would mean, first, that, instead of an independent doctor, a mental health review tribunal, after hearing the responsible medical officer and the patients", would certify in writing that the patient was not capable of understanding the nature, purpose and likely effects of the treatment, and the medical member of the tribunal would certify that, in his opinion, the treatment should be given in the patient's own interests, if indeed he was not capable of understanding.

There are a number of objections to this. A mental health review tribunal, including a doctor but also a lawyer and a social worker, would be no more capable—probably, less capable—than an independent psychiatrist of making these judgments, the primary judgment being the clinical one. Secondly, it would often be undesirable for the patient to be interviewed by a tribunal if he was in a disturbed state. Doctors often have to make similar judgments in relation to other issues in medicine, and have shown themselves perfectly capable of doing so; and, as I have said before, increasingly they are accountable, as it is proposed they should be here. They are controlled by their own medical ethics and the common law.

Further, even if desirable, I maintain that it is impracticable to expect a mental health review tribunal to be convened speedily when treatment has to be given without undue delay. As it is, as your Lordships know, the amendments proposed elsewhere in the Bill are likely to increase the work of tribunals from 450 cases a year to somewhere in the region of 5,000. The present proposals in the amendment would put a very much increased additional burden on the shoulders of tribunals. Further, there remains the question of how the patient will be treated, and by whom will he be treated, if the tribunal overrules the patient's responsible medical officer. This may make his task impossible.

If the patient is thought to be capable of understanding the nature, purpose and likely effects of the treatment but objects, the amendment would, it appears, make it impossible for a doctor to treat a patient against his will. Under the Bill, the patient could be overruled with a second independent opinion. The only exception to this rule would be in an emergency situation, to avert a clear and imminent risk of bodily injury or death to the patient himself, or to some other person, pending a hearing. To wait until things were desperate might be bad practice, and desperate medicine is liable to misjudgments.

In the Second Reading debate, the noble Lord, Lord Hooson, quoted the Butler Report, and he quoted it again this evening. He said that the Butler Report refers to the principle of no treatment for the non-consenting. This principle fails to provide for the patient who may be capable of understanding the nature, purpose and likely effects of the treatment, but who is objecting for irrational reasons, because of the influence of delusions, hallucinations, paranoia or other symptoms arising from his mental state.

In such situations, even though capable of understanding, there should be provision in his own interest to overrule his objection, with due protection of his interests by reference to a second independent medical opinion. Patients of this kind may be very disturbed, but would be untreatable if the amendment were supported. It is necessary to have some provision to treat such patients, and the Bill as proposed by the Government would allow for procedures to he carried out, so that such treatment could be given. This is regarded as very important by psychiatrists who have to plan the treatment of these difficult patients.

Baroness Faithfull

It is quite evident that we are all agreed that there must be safeguards for the patients. What we all disagree about is how it should be done. I rise to speak very briefly, because my Amendment No. 80 deals with this same matter. I have recommended in the amendment that the decision should be taken at a more domestic level and that, after discussion with the patient's relatives, an approved social worker and other professionals working with the patient, treatment should be given, provided that in such cases any objections to the treatment of the patient or others consulted must he recorded. I make no further statement than that, but, rather than move another amendment later, I thought that I would intervene at this stage.

Baroness Masham of Ilton

May I ask the Minister whether he can tell the Committee approximately how many detained patients need to have operations performed against their wishes each year?

Baroness Elliot of Harwood

I should like to add one word. I have listened with the greatest interest to the speeches that have been made by both the noble Lord, Lord Hooson, and my noble friend Lord Renton. I think that what my noble friend said appeals more to my feeling about this clause in the Bill, which is obviously something that concerns us all very deeply indeed.

To take compulsory powers over a patient, however the treatment is carried out, is extremely important. I have here a letter from someone in the Patients' Association who strongly supports the idea that there should be a lay voice, a non-medical voice, somewhere in the tribunal, in the inquiry or anywhere else involved in the working of this clause. There is a great deal to be said for that. Listening to the noble Lord who spoke from the point of view of psychiatrists, I realise that they have a strong feeling that, being the great experts, they are the people who should have the final voice. That to some extent is correct. On the other hand, as we know, experts can sometimes be wrong. In a case of this kind, which is of such importance in the life of a patient, there should also be an opportunity for somebody of a non-medical character who knows the conditions, who knows the patient's background and who knows the family to be involved.

I agree with my noble friend Lady Faithfull that social work departments dealing with patients of this kind are very often the people who can make that contribution: a great study of the character, conditions and family of the person concerned. It is worth considering, and I hope the Government will consider it, that there should be not only medical opinion but opinion of a general nature from people who really understand the case which is being dealt with and who can make a contribution which is of equal importance to that of the medical practitioners, whether they be psychiatrists or doctors.

8.51 p.m.

Lord Kilmarnock

One listens to the noble Lord, Lord Hunter of Newington, with vast respect, but it is worth putting the point to your Lordships' Committee that essentially he was discussing the question of the second opinion which is contained in Amendments Nos. 76 and 77. Whether or not one agrees with the noble Lord, Lord Hunter, I do not think that his objections on that score should obscure the general principle which was stated by the noble Lord, Lord Hooson, when he spoke on subsection (1) of Clause 38.

The important point that we must keep in our minds is that the Government's Bill, as drafted, states a general principle that the patient's consent shall not he required. It then sets out a certain series of safeguards, but if the safeguards were ever to be knocked away the bald text of subsection (1) would stand. This is extremely undesirable. The noble Lord, Lord Hooson, on the other hand, has in a sense reversed that principle, or stood it on its head. He has stated the principle, that the consent of a patient detained under the principal Act or this Act shall be required. Then he sets out the exceptions, with their safeguards. Even the removal of those safeguards would not affect the principle.

If you consider all the safeguards simply as derogations from subsection (1), if they were all knocked away the principle that the patient's consent shall be required would stand on the statute book. That is an extremely important principle which we should not lose sight of, despite the objections which the noble Lord, Lord Hunter, has made on that particular point of where the second opinion may lie, on which of course we may possibly differ. I thought it was worth pointing that out to your Lordships' Committee.

Lord Winstanley

Before the noble Lord replies, as the third signatory to this group of amendments, I should like to say a word with particular regard to what was said by the noble Lord, Lord Hunter, to which I listened with great interest. His words are regarded with great respect throughout the whole of the profession, and rightly so. However, I think that it is right for me, as another doctor, to say that there are two sides to this issue. The noble Lord, Lord Hunter, told your Lordships' Committee that the second doctor, as a matter of clinical judgment, is perfectly able and perfectly competent to say whether or not the patient is capable of giving consent and that it is better that he should do it, because he is able to do it, rather than have the mental health review tribunal. Is it? A doctor called as an expert witness who has examined a woman who complains of being raped is often perfectly competent and able to say whether or not that woman has been raped. But as a matter of public policy we do not leave it to the doctor to say whether an accused person is guilty. We leave it to lay people. We leave it to a jury. I think that as a matter of public policy there must be an independent element which is not a medical element.

The noble Lord, Lord Hunter, talked—and rightly—about the importance of not interfering with the consultant's clinical freedom. If a patient is not of mentally unsound mind or mentally ill so that he is capable of giving consent or withholding consent, and if that patient withholds consent, whatever the consultant says out of his inspired clinical judgment, what happens to the consultant then? He has to take it, and quite rightly so. I do not think, therefore, that one must necessarily say that because a consultant psychiatrist takes a certain view, that view must inevitably prevail in all circumstances. So there are those two points with regard to the very compelling arguments which the noble Lord, Lord Hunter, put before your Lordships' Committee, and I hope that they will be considered before the noble Lord the Minister replies.

Lord Richardson

May I follow the noble Lord, Lord Winstanley, who has put to your Lordships the sequence in consultation and decision-making about the advice to be given to patients and to their relatives. In parenthesis, I should like to defend my profession against Lord Renton's suggestion that their instinct is to agree with each other. I believe that your Lordships can think of examples where doctors disagree. The opinion having been formed by the doctors with one, two or even more consultations, sometimes from different disciplines within medicine, it is normally presented to the patient and to the family. Then, as the noble Lord, Lord Winstanley, quite rightly said, if the treatment and advice is refused the matter ends there. The doctors make the best of the job—as they see it, a bad job—in the interests of the patient. I feel that your Lordships would agree that while the purely medical period of forming an opinion is in process it should be conducted on the same sort of principles as in organic disease, with the discussion and the formation of an opinion from perhaps several different opinions.

The question your Lordships are addressing yourselves to, which I found so fascinatingly put by the noble Lord, Lord Hooson, is how one proceeds from the time when the medical opinion has been formed. In this case an expert medical opinion—expert in the sense of understanding the effect of delusions and perceiving them, or of hallucinations, or the great subtleties of the mind of the highly integrated paranoid—cannot be other than technically of the highest value. T question whether, with all their judicial expertise and worldly knowledge, lawyers are comparable in this particular instance. But quite clearly, when reaching the point that normally would be with the patient and with the relatives, where it is felt that the patient is not a comprehending patient, although perhaps to lay people he might appear so, the question is whether it is better dealt with in the way that Lord Hooson, supported by Lord Renton, has suggested, or by the Government.

As to the White Paper which the Government produced—if I may be permitted to do so, I should like to read to your Lordships literally half a dozen lines— A psychiatrist so appointed, appointed by the commission either from its membership or from the knowledge of the commission of the psychiatrist, who gives a second opinion on any case will he able to discuss the principles which should apply in giving second opinions with the commission members from other disciplines and to take account of their views. It is also intended that the independent doctor will discuss the patient's treatment with members of the team caring for him before giving his opinion and will take account of wider social and medical matters". If the spirit and indeed the letter of those sentences put before us by the Government are carried out, I would have thought that this was a wider means of determining the rights and position of the patient in the circumstances which we are discussing, rather than by three members of a health tribunal, however experienced. After all, prejudice does not rest solely in the minds of doctors, and it is for these reasons that I hope the Government's version of the Bill in this particular clause will be accepted by your Lordships, and that the amendment will be rejected.

9.2 p.m.

Lord Elton

If I may dispose of one point of substance but detail first, may I tell the noble Baroness, Lady Masham of Ilton, that I am not aware of any "operations" as such—by which I take it that the noble Baroness means psycho-surgery—done without consent, certainly in recent years. But treatment without consent—and I hope your Lordships will throughout this debate remember the definition of "treatment" which occurs in the Act, because it is very wide—would apply I believe, to about 10 per cent. of the patients we are discussing. The patients we are discussing are those detained for treatment of mental disorder. In the same spirit, I would just mention in passing that although the noble Lord, Lord Kilmarnock, very gently chided the noble Lord, Lord Hunter of Newington, for bringing in matters in Amendments Nos. 76 and 79, the noble Lord, Lord Hooson, had in fact brought those specific amendments before the House and it is quite proper for all of us to be discussing them.

On this question of how we take these amendments, I slightly regret that we did not take Amendment No. 75 on its own because then perhaps I could have been more helpful than I am going to be. Amendment No. 75 has at least in its intentions a certain degree of merit in that it adopts a positive rather than a negative approach. That is to say, it says that we must presume no treatment is to be given without consent and then gives derogations from that, rather than saying we must presume that no consent is needed for treatment and then give derogations from that, as the Government at present propose. I would have been suggesting that this was something I could take away. I would have to take it away rather than accept it now in the Chamber because it is rather like an algebraic formula; the noble Lord has changed the sign outside the brackets and has not, I believe, adequately adjusted the terms within it—so that from the point of view of drafting some adjustment is needed. However, I am in sympathy with what was intended under that amendment and indeed that might still prove to be a matter of interest to your Lordships.

I would like to take up, by way of introduction, the noble Lord's statement that the Bill represents a departure from the position set out in the 1978 White Paper, that it is new in law, and that it is new to both Houses of Parliament. If I can follow the paper-chase that I have made for myself during the noble Lord's speech and successive speeches, I would point out that the 1978 White Paper did not so differ from what we are doing. Perhaps I may refer the noble Lord to paragraph 68.23 on page 74 of the Review of the Mental Health Act 1959. I read about halfway down the paragraph: The Government's view is that if a detained patient who is capable of giving valid consent refuses to give it, the doctor should not be able to impose any treatment except in an emergency"— and when it comes to "emergency", I believe we are on common ground— without a concurring, second opinion". That is the position of the Government and I see nothing new in that.

As to the second point, that this is new in law, the Bill does not, in my view—as some noble Lords are claiming—make any fundamental change or take away any right to refuse treatment. The Royal Commission that led to the 1959 Act in fact assumed that patients who are detained for treatment could be treated without consent, and the 1959 Act provided for admission for treatment of detained patients. The department, on legal advice, have taken the view that where the purpose of the detention is treatment the Act gives the responsible medical officer concerned implied authority to treat a patient for his mental disorder, if necessary without the consent of the patient or any other person. This has been done. The purpose of putting this into an Act is to codify in law existing practice which is now in question but which has not yet been questioned by the courts.

As to the question of whether this is new in both Houses of Parliament, I would refer the noble Lord, Lord Hooson, to column 77 of Commons Hansard, Volume 849, for Tuesday 23rd January 1973, when my right honourable friend Sir Keith Joseph said: I am advised that in the case of a patient detained for treatment under the Mental Health Act, any recognised form of treatment which is considered necessary for such a disorder may lawfully be administered without the consent of the patient. Where, however, the patient is capable of understanding what is proposed, it is the normal practice to explain this to him and if possible to obtain his agreement". I am not saying that this will convince the noble Lords or their friends that all this is satisfactory; I am only claiming at this stage that it is not, as they would have us believe, new either in law or in the other House of Parliament.

If I may now come to the mainstream of the amendment, I make no apology that I, like noble Lords who have preceded me, and particularly the noble Lord, Lord Hooson, recognise the fundamental importance of what we have been discussing and I cannot deal with the matter with the brevity which the hour might suggest, would be convenient. The first major point concerns the group of patients covered. The movers of these amendments propose a procedure whereby medical treatment can be given to detained patients incapable of giving their own informed consent because they cannot understand the nature, purpose and likely effects of the treatment. The Government are at one with the movers in agreeing that some sort of procedure is needed in these cases, though as I shall explain in a moment, we differ as to the nature of the procedure.

People suffering from some forms of mental disorder may as a result of that disorder be unable to understand even a simple explanation of the nature and purpose of a medical treatment. If I may refer to a case in point and illustrate this: a patient who clearly understands the treatments which are proposed to him and their effects but whose mental disorder, schizophrenia, is such that he does not believe that he is mentally disordered. He is competent to decide in the terms of the noble Lord's amendment, but because he is deluded as to his state of health he will not give consent. There are many cases. I will not delay your Lordships with lists of not only delusions but hallucinations, misinterpretations of reality, morbid preoccupations, impaired memory—from which I sometimes find myself suffering—or severely depressed mood, which make people unable to appreciate the nature of their condition and cloud their judgment about the need for treatment. It would be uncompassionate in the extreme if doctors were prevented from giving all such people treatment which might alleviate or improve their mental condition, and, indeed, alleviate their suffering.

Might I at this stage mention the second point, where I think the movers have made a welcome addition to the Bill. Amendment No. 79 uses the term, the patient is not capable of understanding the nature, purpose and likely effects of the treatment", whereas in the Bill we have only a reference to the patient being capable of consenting to that form of treatment. The amendment clarifies very usefully what is meant by consenting, and I will see what we can do before Report to take on board the spirit, and as far as can the wording, of that part of Amendment No. 79.

The movers of these amendments have proposed a procedure for giving treatment to patients who cannot understand the nature, purpose and likely effects of the treatment. In the Bill we have provided also for cases where a detained patient understands what is involved and refuses to give his consent to treatment. It is often the case that a patient is capable of understanding the nature, purpose and likely effects of the treatment but, because of his mental disorder, does not accept that he needs any treatment. I am well aware that this touches on a key issue of individual liberty. None of us would lightly take the responsibility for deciding on behalf of another person whether or not to accept a particular form of medical treatment. I again refresh your Lordships' memories as to the nature of treatment in the definition in the Act, which is not only concerned with things that we would consider invasive of private metabolism, but nursing treatment and so on.

May I here take up the point—I think it was the noble Lord, Lord Hooson, who said it—that we had departed from the report of the noble Lord, Lord Butler, as chairman of the Committee on Mentally Abnormal Offenders. If the noble Lord, Lord Hooson, will turn to page 49 of that report, paragraph 3.54, about halfway down, I will remind him of it: Treatment other than nursing care should not be imposed on any patient without his consent if he is able to appreciate what is involved. Three exceptions should be allowed. Treatment may be given without such a patient's consent,

  1. (a) where not being of a hazardous or irreversible character it represents the minimum interference with the patient to prevent him from behaving violently or otherwise being of danger to himself or others; or
  2. (b) where it is necessary to save a patient's life; or
  3. (c) where not being irreversible it is necessary to prevent him from deteriorating. Where by reason of his disability the patient is unable to appreciate what is involved despite the help of an explanation in simple terms the treatment may he given, but special considerations apply to treatment involving irreversible procedures".
These special considerations we have recognised in the Bill. So we have followed the White Paper and also followed Lord Butler's report.

We are talking in this Bill about very special circumstances, patients who are detained in hospital in order that they can receive medical treatment for their mental disorder. We have already debated the procedures by which patients are detained and the criteria which must be satisfied. Those criteria are all about medical treatment for mental disorder. A patient can only be detained under Section 26 if his mental disorder is of a nature which makes it appropriate for him to receive treatment in a hospital and if it is necessary for his own health or safety or for the pro- tection of other persons that he should receive such treatment.

A court must be satisfied before it makes a hospital order rather than, say, sending the offender to prison, that the offender's mental disorder makes it appropriate for him to be detained in a hospital for medical treatment. The Bill and the Act are essentially about procedures under which certain mentally disordered people may be detained in hospital and given medical treatment for their mental disorder. Therefore, if we make no provision for that treatment, we are left with nothing but detention for those people, and hospitals are no place for detention without medical treatment. In that respect this amendment would put the clock back to the days before developments in psychiatric treatment opened hospital doors and made it possible for patients to return to life in the community.

No psychiatrist wishes to treat an unwilling patient if he can win the patient's understanding and agreement. I notice that the noble Lord, Lord Peart, is looking at his watch, and I am getting notes from behind me telling me to speak slower. I am trying to oblige everybody. This really is very important ground. It must be covered, and I think that it must be covered in a manner in which everybody can join in. Most detained patients do agree to accept the treatment their doctor recommends. They appreciate that this is their best chance of getting better and being able to return to the community. If a patient objects to a particular form of treatment, his psychiatrist quite naturally will try to offer an alternative form which the patient is willing to accept. I have visited hospitals, and in those that I have visited I have satisfied myself that this is the case. I am told that only about 10 per cent. of detained patients—in fact, I have already raised this matter with the noble Baroness so I shall pass over it and merely say that we are not talking about a great many cases.

It cannot be in the best interests of patients that their disorder should be left untreated and perhaps deteriorating, and the position of staff in containing, but not being able to treat, such patients would in fact be to reduce them to the position of warders. The only alternative is that patients would be discharged from hospitals because they did not want to be treated. And my fear is that there would be cases where a dangerously mentally disordered person received no medical treatment because he wanted none, left hospital and committed a serious crime under the influence of his mental disorder. The consequence for him would be prison since it would be clear that the hospital could do nothing for him; the consequence for the victims of his crime, I leave to your Lordships' imagination.

If someone is detained in hospital for medical treatment for his mental disorder, under the provisions of the legislation we are debating it must be possible to ensure within the carefully spelt out safeguards that he receives the treatment he needs. The Government cannot accept amendments to this clause which would prevent that. That, I say again, is no new practice and has never, I understand, been challenged in the courts.

Before I turn to the second point of fundamental disagreement about who should give the second opinion—and we are, it would seem, forced to debate both— I would like to mention briefly the third aspect of the amendments with which I do agree. Amendment No. 78 adds in line 28 words to show that the legal requirement is that the patient has consented rather than that the responsible medical officer should report his consent at second hand. That is an acceptable amendment and I undertake to introduce something to the same effect at the Report stage, although I must say that I prefer the noble Lord's first shot at it in Amendment No. 78. I will say more about this when we come Amendment No. 91A. Indeed, I was saying that I prefer the noble Lord's first version of Amendment No. 78 to Amendment No. 78A which is the present version.

I will turn now to the second major question: who should give the second opinion? The Bill proposes that it should be an independent doctor who would be appointed by the Mental Health Act Commission on behalf of the Secretary of State. Our intention is that the medical practitioners so appointed would be psychiatrists and would take account of the views of members of the Mental Health Act Commission from other disciplines, including lay people and lawyers. These I know are the two aspects which are very attractive to noble Lords who have said that they are not confident of their uniquely medical opinion or two uniquely medical opinions, that they feel that the common man wants another common man on his side, and some lawyers feel that a lawyer is needed to control the medics. Both of these elements are built into the Mental Health Act Commission.

The alternative as proposed in these amendments is that the second opinion, and only on the question of ability to consent, should be given by the mental health review tribunal. The whole tribunal—a lawyer, a doctor and a lay member—would decide whether or not the patient was capable of giving valid consent; if he was not, the medical member only would have the responsibility of deciding whether the treatment should be given "in the patient's own best interests". The movers of the amendment and the Government are therefore both proposing that the decision on whether treatment should be given should be made by a doctor rather than by a multi-disciplinary panel. I am glad of that agreement and I believe that it is very important.

This is the moment for my last favourable comment. The words: in the patient's own best interest", are a helpful clarification of the reasons which justify imposition of treatment. There may be other forms of words proposed, but I would favourably consider on Report which would be best as an improvement on what we have in the Bill.

However, to return to the main point, I think it is a mistake to involve mental health review tribunals in issues of consent to treatment. The tribunal has a clear role already—and that is a judicial one—to decide whether a particular patient should be discharged. The tribunal would, I believe, no longer seem to patients to be fair and impartial if it was also involved in detailed decisions about their treatment while they were detained. The role the tribunal would be given by these amendments would be one of detail: it would have to decide whether the patient was capable of understanding the nature, purpose and likely effects of a particular treatment. That is not a once-and-for-all decision: conditions of patients change. It has to be brought up, possibly, quite frequently with a patient who will change his or her mind under different circumstances. The treatment may only be a course of tablets or nursing procedures; we are not talking only about major issues. The patient may understand what is involved in some forms of treatment but not in others, and his condition may vary from time to time.

Let us suppose that a particular patient sincerely believes that he understands the nature, purpose and likely effects of a form of treatment and does not want to accept it. If the tribunal decides that he is not capable of understanding and should be given the treatment, will the patient really believe that the tribunal which at present represents one of the few available escape hatches for him into the outside world, will look fairly at his application to them for discharge when they have just overruled him on how he should be treated?

In practical terms the movers are proposing that three people should be convened to decide each case where the Bill proposes that only one should be called in. That means more delay. We are putting a lot of extra burdens at short notice on tribunal members, including Section 25 tribunals. If we add even more meetings, which would usually be urgent, to decide on consent to treatment, the consequences for the tribunal system could be grave. Moreover, neither do I agree that it is necessary for the patient's ability to give informed consent to be decided by a multidisciplinary tribunal panel rather than by one doctor. It is indeed likely that in some cases repeated questioning, or an appearance before three people rather than an interview with just one, will only confuse and upset the patient.

It is part of day-to-day practice for psychiatrists to talk to patients and explain forms of treatment. The commission would he able, if it thought fit, to give guidance on the general issues involved in assessing a patient's competence, and to discuss decisions or principles with the psychiatrist who gave the second opinion. I appreciate the movers' concern that the principles involved in decisions on consent to treatment are not purely medical, but I do not think that these amendments are the right way to ensure that those wider principles are taken into account.

My final argument against this whole group of amendments is that the Mental Health Act Commission will do its job as a watchdog for detained patients a great deal better if it has responsibilities for consent to treatment. The Bill proposes that the commission will do three things. First, it will appoint the independent doctors to give second opinions. Secondly, it will publish advice and guidance on consent to treatment in the code of practice and, thirdly, it will visit hospitals to monitor the way in which the consent to treatment procedures work in practice.

These amendments have the direct effect of removing the first of those three functions: appointing independent doctors. They also effectively remove the third, as it would be inappropriate for the commission to monitor the way in which the tribunals carried out their responsibilities. If the amendments are accepted, the commission would be able to do only half a job as a watchdog; it would monitor the way in which powers of detention were used, but would be excluded from the area we all agree to be so important, consent to treatment.

The tribunals have a role as a safeguard for patients against unnecessary detention. It is a very important one and it is working well at present. We are now proposing to introduce additional safeguards concerning the care and treatment of detained patients. I believe that we shall do a far better job for detained patients if the new safeguards are all the responsibility of the Mental Health Act Commission, rather than trying to split them between the tribunals and the commission. Therefore, subject to the points that I have agreed to take away and reconsider on Report, I hope that noble Lords will be prepared to withdraw their amendments. I know they regard it as of fundamental importance. So do I. I respect their aims; I cannot agree with their methods.

9.25 p.m.

Lord Hooson

I greatly appreciate the degree of care that the noble Lord, Lord Elton, has given to considering his reply in this important debate. As he spoke, I was reminded of some advice given to me by a wise old MP when I first went into the House of Commons. He said to me, "You should always seek to legislate as though that legislation was always going to be on the statute book, because some of the statutes on our statute book have been there since the 12th century, and have been used for very different purposes from those for which they were originally intended."

The Government will find it very difficult indeed to justify in retrospect the giving of such an important decision as this—the consent to treatment of a detained patient—simply to a second psychiatric opinion, with no independent voice in it whatsoever. Basically, the Government are making a grave mistake. May I come to some of the detail that the noble Lord has mentioned? I am grateful to him for indicating those parts of my drafting which have excited his interest, and possibly eventually his adoption of those words. But, nevertheless, as I made clear at the outset when moving these amendments, I regard these amendments as important as a whole, and he is as a whole rejecting them.

The noble Lord referred me to the White Paper of 1978, and quoted paragraph 623, where he said that that White Paper was in favour of a second opinion. He quoted a paragraph there, but did not come to the final words. I should like to read to him the final words at page 74: The form of the second opinion is discussed in paragraphs 628 and 629". If he turns over to paragraphs 628 and 629, he will find that in those paragraphs the White Paper set out three possibilities. The third was a multidisciplinary panel especially established for the purpose.

Lord Elton

Would the noble Lord be kind enough to give way? Perhaps I should have saved my fire, but the Mental Health Act Commisison is a multidisciplinary panel. That is exactly where we are taking the opinion from.

Lord Hooson

With great respect to the noble Lord, he said that the White Paper had come down in favour of a seond medical opinion. They did not. If he looks at paragraph 628 he will see: There was a good deal of support for the multi-disciplinary panel on the grounds that this would add a new and important safeguard in relation to contentious treatments. Much but not all medical opinion was against the introduction of multidisciplinary panels, but it is hoped that in the light of the widespread support for them the medical profession will feel able to go along with this proposal". It is clear which way they were recommending.

I am not going that far. I do not think that they should decide on treatment, or have a voice in deciding on treatment. But for the noble Lord to quote that paragraph 623, although I accept that he did it inadvertently, was entirely wrong. The noble Lord then referred me to the Butler Report and to page 49, and to the various suggestions there as to treatment that was necessary in an emergency. He will find that in my amendments I have dealt with each of the points in the Butler Report.

Let me remind the noble Lord of my Amendment No. 84. It says: ("(7) Subsections (1), (2) and (4) above shall not apply to any treatment—

  1. (a) which involves the minimum interference necessary to avert a clear and imminent risk of bodily injury or death to the patient himself or any other person; or
  2. (b) which, pending the hearing of a reference to a Mental Health Review Tribunal under subsection (2), is necessary to prevent a serious deterioration of the patient's condition.
provided always that such treatments as are given under this subsection are established treatments and are not irreversible.")". Therefore, the noble Lord will find that the very paragraph he quoted, paragraph 354 at page 49, I have met in my amendements: I have met the very requirements which the Butler Committee suggested.

The noble Lord then said the matter had been discussed in the House of Lords because Sir Keith Joseph in another place referred to certain legal rights in 1973. The point I made was that in 1959, when the principal Act was going through this House and the other place, there was no suggestion that psychiatrists would be given the power to give treatment against consent. Although I said that it was not admissible in law to refer to debates to get the meaning of an Act—and a lawyer may advise later than an Act means something totally different from what the Houses of Parliament on passing it thought it meant—it is important for the purposes of this debate to appreciate that neither House suggested that psychiatrists would have that right or power. I am right, therefore, in the suggestion I made that the matter had not been canvassed by this House, and the fact that Sir Keith Joseph nearly 14 years later gave it as his opinion that he was in possession of a legal opinion that suggested that psychiatrists might have this right is a totally different point.

I cannot agree with the noble Lord either that discussion by independent psychiatrists with members of a commission is in any way the equivalent of having a decision arrived at by a medical tribunal. After all, one member is a doctor and undoubtedly, on a medical issue, is likely to have great influence on the tribunal. They will hear evidence from the responsible medical officer, who undoubtedly will carry a great deal of weight. The point I am concerned with in the long run is the safeguarding of liberty. We may be dealing with a small number of people, but the way in which we build in these safeguards is very important, and I know of no provision under our law where a person can be deprived of liberty, with no kind of appeal to a court or elsewhere, on the say-so of two doctors. What will happen here is that a patient will be able to be given what can amount to irreversible treatment if two doctors say he is incapable of giving consent.

I am asking the Government to build into the Bill—for their own sake as well as everybody else's—an independent element. I have sought to do it in the way I have described—at length, I am afraid, but it is vitally important that we get this right—and although the Minister has indicated that he intends to adopt certain of my wordings, and I am grateful for the crumbs, he has not begun to acknowledge the major principle which I have tried to introduce in my amendments. In those circumstances, I shall divide the Committee, on the understanding that it will indicate the view of your Lordships on the important principles I have adumbrated.

9.34 p.m.

On Question, Whether the said amendment (No. 75) shall be agreed to?

Their Lordships divided: Contents, 35; Not-Contents, 52.

Allen of Fallowfield, L. Loudoun, C.
Aylestone, L. Masham of Ilton, B.
Bishopston, L. Mayhew, L.
Brockway, L. Peart, L.
Byers, L. Ponsonby of Shulbrede, L.
Chitnis, L. Renton, L.
Craigmyle, L. Robson of Kiddington, B.
Davies of Leek, L. Rochester, L.
Elliot of Harwood, B. Stedman, B.
Elwyn-Jones, L. Stewart of Alvechurch, B.
Hampton, L. Stewart of Fulham, L.
Hooson, L. Stone, L.
Houghton of Sowerby, L. Thurlow, L.
Kilmarnock, L.—[Teller.] Tweeddale, M.
Kinloss, Ly. Underhill, L.
Llewelyn-Davies of Hastoe, B. Wigoder, L.—[Teller.]
Winstanley, L.
Lloyd of Kilgerran, L. Winterbottom, L.
Avon, E. Hastings, L.
Beloff, L. Henley, L.
Belstead, L. Hornsby-Smith, B.
Boardman, L. Howe, E.
Boyd-Caprenter, L. Hunter of Newington, L.
Brougham and Vaux, L. Hylton-Foster, B.
Campbell of Alloway, L. Kemsley, V.
Cathcart, E. Kitchener, E.
Coleraine, L. Long, V.
Cullen of Ashbourne, L. Lyell, L.
De La Warr, E. Macleod of Borve, B.
Denham. L.—[Teller.] Mansfield, E.
Drumalbyn, L. Margadale, L.
Elles, B. Marley, L.
Elton, L. Mersey, V.
Faithfull, B. Mottistone, L.
Gardner of Parkes, B. Murton of Lindisfarne, L.
Glanusk, L. Norfolk, D.
Greenway, L. Norwich, Bp.
Gridley, L. Platt of Writtle, B.
Hacking, L. Richardson, L.
Rodney, L. Trenchard, V.
Sandford, L. Trumpington, B.
Sandys, L.—[Teller.] Vaux of Harrowden, L.
Sharples, B. Vickers, B.
Skelmersdale, L. Vivian, L.

Resolved in the negative, and amendment disagreed to accordingly.

9.42 p.m.

[Amendments Nos. 76, 77 and 78A not moved.]

The Deputy Chairman of Committees (Lord Murton of Lindisfarne)

I should draw the attention of your Lordships to the fact that if Amendment No. 79 should be agreed to it will not be possible to call Amendment No. 80.

Lord Hooson

It may assist the noble Lord if I say that I do not intend to move any amendment which stands in my name between that just called and Amendment No. 91A.

[Amendment No. 79 not moved.]

Baroness Faithfull moved Amendment No. 80: Page 27, line 32, leave out from ("that") to end of line 33 and insert ("after discussion with the patient's relatives, an approved social worker and other professionals working with the patient, he has concluded that the treatment should nevertheless be given. Provided that in such cases any objections to the treatment of the patient or others consulted must be recorded.").

The noble Baroness said: I have obviously had a hint from the Chief Whip to be as brief as possible. This amendment is on a slightly different point from the last one. It deals with the question of early consultation. I believe that in taking a decision of such extreme importance as that which we have been talking about it is necessary, first, to have a interdisciplinary team; and in my amendment there is reference to such an interdisciplinary team. What is much more important, I think, is that the patient's relatives should be consulted. I think that is of the utmost importance.

Secondly, the recommendation I have made concerns people who know the patient and have been working with and for the patient. It concerns not only the doctor and the social workers, but other workers—the physiotherapist, the occupational therapist or whatever. Lastly, when a decision has finally been taken after the consultative process, that decision must be written down and recorded, so that later, when the patient is better, or if there is any trouble at all about the decision, it will be known that it was recorded at the time the decision was taken. I beg to move.

Lord Mottistone

I should like very briefly to say that I support strongly the principle of this amendment, and I hope very much that the Government will give it favourable consideration.

The Lord Bishop of Norwich

Because the loneliness of many patients is such a real part of their illness and this is an attempt, at least, to surround the patient with as much general support and encouragement as possible, I, too, should like to support this amendment.

Lord Sandys

I am going to disappoint not only my noble friend Lady Faithfull, but also my noble friend Lord Mottistone and the right reverend Prelate the Bishop of Norwich; because I am afraid that I am opposed to including this amendment in the Bill although I agree with my noble friend's intention in proposing the amendment. This is the sort of advice which the Mental Health Act Commission will, I have no doubt, include in the code of practice. It is difficult to make provision about the kind of consultation which would be involved in the precise terms required in a statute. I am sure noble Lords would agree with that. That would involve considerations of such matters as which relatives should be consulted and which professionals. And what about the views of unqualified staff, like ward orderlies, who may have close contact with the patient? The position is not quite as straightforward as may be thought at first sight. The code of practice will be able to give practical advice which will be much more helpful to those concerned than anything we, however well intentioned, attempt to enshrine in a statute, and I believe we should leave it to the commission. I am sure they will take note of this debate.

Baroness Faithfull

Before my noble friend sits down may I clarify a point? Do I understand that he supports the spirit of this amendment going into the code of practice?

Lord Sandys

Yes; I made that perfectly clear.

Baroness Faithfull

I thank my noble friend. With that assurance I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees

I wonder whether the noble Lord, Lord Hooson, could inform the Chair of which amendments he does not wish to move.

Lord Hooson

I do not propose to move any amendments standing in my name up to Amendment No. 91A inclusive.

[Amendments Nos. 81 to 91A not moved.]

Clause 38 agreed to.

The Deputy Chairman of Committees

The next amendment is Amendment No. 91B. I would point out that if this is agreed to it will not be possible to call Amendments Nos. 92 and 93.

Lord Winstanley moved Amendment No. 91B:

Page 29, line 1, leave out subsection (1) and insert— ("(1) The Secretary of State shall prepare, and from time to time revise, a code of practice for the guidance of medical practitioners and members of other professions concerned in the admission, detention or treatment of patients suffering from mental disorder and in particular of patients detained under the principal Act or this Act.").

The noble Lord said: This is a simple amendment which I think the noble Lord, Lord Elton, will probably agree does not make any dangerous inroads into the Bill as now drafted. I hope that after some explanation he will accept that this amendment improves the Bill. If one looks at Clause 39(1), which this is designed to replace, it reads: The Secretary of State shall prepare, and from time to time revise, a code of practice for the guidance of medical practitioners and members of other professions concerned in the medical treatment of patients detained under the principal Act or this Act". The amendment clearly extends this; so that instead of saying merely "and members of other professions concerned in the medical treatment", it says "members of the profession concerned in the admission, detention or treatment of patients"—which is wider and includes all the people whom I hope we would wish to include.

It widens the Act in another way. It provides this protection not just to detained patients but to all patients. And I think it right that it should. Instead of saying: medical treatment of patients detained under the principal Act or this Act", the amendment would read: patients suffering from mental disorder and in particular of patients detained under the principal Act or this Act". In other words, it extends it to voluntary patients as well. Surely the code of practice should apply to all patients and not merely to one section. This amendment—although maybe the wording is faulty somewhere—widens this particular subsection in a way which the noble Lord, Lord Elton, may consider helpful. I beg to move.

Lord Elton

I pause to see whether my noble friend Lady Faithfull wishes to speak in view of the fact that, if this amendment succeeds, hers falls. It would seem normal practice therefore to discuss them together.

Baroness Faithfull

I was going to see whether this amendment succeeded. If it did, I was going to withdraw my amendment.

Lord Elton

I do not think my noble friend will have that pleasure; but that remains to be seen. I hope to be a little more friendly than that dour first reply may have given the Committee reason to think.

This amendment—and also Amendments Nos. 92 and 93—would extend the coverage of the code of practice in two directions at once. I have a good deal of sympathy with one of the extensions—the suggestion that the code of practice should cover good practice in compulsory admission procedures and other matters concerning detention under this legislation, as well as the medical treatment of detained patients. I undertake, if these amendments are withdrawn, to introduce an amendment at Report to make that aspect clear.

I was careful to say "medical treatment" rather than "treatment"—the term which is used in these amendments. Medical treatment is defined in Section 147 of the 1959 Act to include nursing, and care and training under medical supervision. Clause 44 amends that definition so that it includes "care, habilitation and rehabilitation under medical supervision". "Medical treatment" is thus not just those things a doctor does himself—it encompasses the whole range of a patient's treatment whether carried out by a doctor or by other staff. Of course, we recognise that the care of patients in hospital includes providing them with a warm and caring environment, as well as a therapeutic setting, and many different people are involved in this as well as doctors. But this is covered by "medical treatment" as defined in the Act and amended by the Bill. "Treatment", without the qualifying "medical", seems to me to be too vague in this context. The code of practice is to be about medical treatment, in the sense that it is defined in the Act and the Bill, and we should say so in this clause. I hope my noble friend Lady Faithfull will accept that as the Government's reply to Amendment No. 92.

The second extension would be that the code of practice had to be for the guidance of staff concerned in the admission and treatment of all mentally disordered patients, not just detained patients. I do not agree that that is the best way to help staff and benefit patients. There are particular problems, as shown in our previous debates, about giving medical treatment to detained patients. Clause 38 sets out legal procedures to be followed by responsible medical officers; but it will be extremely helpful to practitioners to have guidance on good practice in following those procedures. For example, I suggested in the debate on an earlier amendment moved by my noble friend that the code of practice could give guidance about the people that the independent doctor might need to talk to before deciding whether treatment should be given without the patient's consent. Clause 39(2) provides that the code of practice shall specify treatments which give rise to special concern and which should not be given to detained patients without their consent and a concurring second opinion. This consideration has been rendered more important—has it not?—by our decision on the previous group of amendments.

In all these ways the code will address itself to particular ethical and professional problems which arise in giving medical treatment to detained patients. As a result of the undertaking that I gave a moment ago, it will also cover good practice for all professions involved in compulsory admission and detention. It already promises to be a weighty document and I hope that noble Lords will be satisfied with that.

Baroness Masham of Ilton

Before the noble Lord sits down, as Amendment 94, to which I have already spoken, also includes physical medical review and a code of practice, will he please look at all the things I referred to previously and consider them along with the other matters?

Lord Elton

With pleasure.

Lord Winstanley

I would be misleading the noble Lord, which is the last thing I want to do at this late hour, if I told him I was entirely satisfied with the reply he has given, but I will study his reply carefully. I have some doubts about it, in particular regarding the definition of "medical treatment". I understand that the nursing profession are rather unhappy about the somewhat narrow way that definition is used and the way in which it is taken to embrace nursing, and they tend to feel that perhaps it should not. Nursing being a profession on its own, it has its own forms of treatment and it should not be just included in the general umbrella of "medical treatment". However, I will consider most carefully what the noble Lord has said. I think it is possible that the clause which we seek to amend by this amendment could be improved. I have looked at the suggested improvements made by the noble Baroness and other thoughts which noble Lords have on this matter. Therefore, reserving the right to raise this matter on another occasion, I beg leave to withdraw the amendment.

Lord Elton

Before the noble Lord sits down, may I just refer him for his future consideration to Section 147, which is the interpretation section of the Act, so that we are clear what we mean when we talk about "medical treatment"?

Lord Winstanley

I am grateful for what the noble Lord has said.

Amendment, by leave, withdrawn.

Baroness Faithfull had given Notice of her intention to move Amendment No. 92: Page 29, line 4, leave out ("medical").

The noble Baroness said: Having listened to what my noble friend the Minister has said, I will take note and will not move Amendment No. 92 at this stage.

[Amendment No. 92 not moved.]

Baroness Faithfull had given Notice of her intention to move Amendment No. 93: Page 29, line 4, after ("patients") insert ("suffering from mental disorder and in particular patients").

The noble Baroness said: The same remarks apply to Amendment No. 93, but may I just ask my noble friend this question. Does a code of practice come out with the Bill? Shall we have it before we finish dealing with this Bill?

Lord Elton

Certainly not before we finish dealing with the Bill. As to the exact date, I would have to take advice. It is not the sort of thing one rushes into lightly. It involves some consultation. I shall have to write to the noble Baroness, or return to the matter on Report.

[Amendment No. 93 not moved.]

[Amendment No. 94 not moved.]

Clause 39 agreed to.

Lord Denham

I think this is probably a suitable moment to adjourn the Committee, and therefore I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.