HL Deb 27 October 1982 vol 435 cc528-38

41 After Clause 38, insert the following new clause: Extension of section [Treatment requiring consent and a second opinion] and related provisions to voluntary patients Sections [Treatment requiring consent and a second opinion], [Plans of treatment]. Withdrawal of consent] and [Urgent treatment] shall apply to any patient who is not liable to be detained under the principal Act or this Act.".

Lord Trefgarne

My Lords, I now move Amendment No. 41 formally, and I think my noble friend Lord Mottistone will wish to move his amendment and we shall discuss the Government amendment and my noble friend's amendment in the same debate. Accordingly, I beg to move that this House doth agree with the Commons in their Amendment No. 41.

Moved, That this House doth agree with the Commons in the said amendment.—(Lord Trefgarne.)

Lord Mottistone moved Amendment No. 41 A as an amendment to Amendment No. 41:

41A After ("[Treatment requiring consent and a second opinion]") insert ("(except subsection (1)(b) thereof)").

The noble Lord said: My Lords, I beg to move that Amendment No. 41A be agreed to. I should perhaps at the outset tell your Lordships that I am advised by the Royal College of Psychiatrists who are firmly opposed to Amendment No. 41, and I understand that that amendment also gives deep concern to the Joint Consultants Committee; so there is a strength of medical feeling behind this amendment that needs to be taken seriously by your Lordships.

My honourable friend the Minister for Health in speaking in another place—and this is recorded on 18th October in the Official Report at column 80—made clear that the House was taking a fairly drastic step, and it was, it was taking a very drastic step. It is somewhat surprising for the Government to take such a drastic step at a very late stage in any Bill where there has not really been full opportunity for consultation, not only in your Lordships' House on receiving that amendment within days of it suddenly appearing, but also consultation with interested bodies such as the two eminent medical bodies to which I referred, and indeed many others.

Having made that statement my honourable friend the Minister for Health acknowledged that the proposals on consent for treatment were originally intended only to refer to detained patients, on the basis that because such patients were detained and had lost their civil liberties they required protection against treatments being administered without their consent. Nobody would object to that. It makes sense.

The other point that perhaps may be made in advance is that the importance of the issue is not really related to psycho-surgery operations because much of what is proposed is already good clinical practice. But it is important in relation to, as described in Amendment No. 35, such other forms of treatment as may be specified, by the Secretary of State.

It is that subsection (1)(b) of Amendment No. 35 that I seek to have removed from the overall provision of Amendment 41.

To clarify, if we can, what such other treatments are, my noble friend in talking earlier about this group of amendments gave a point to it, but again in column 80 of Hansard of the other place of 18th October the Minister said: It is designed to apply to the most serious treatments, including psycho-surgery. It will also apply to the most serious treatments that are irreversible or drastic, such as certain hormone treatments.

Thus there is a variety of views on which other treatments should apply, and yet it has been agreed in another place to extend the proposals to voluntary persons before any consultations have taken place with the medical profession.

In effect, the legislation as it stands says that certain forms of treatment, though no one knows which other than psychosurgery, may not be given to patients who want those treatments without their having to suffer the rigmarole of having their personal details discussed by at least several other people, most of them not doctors, and some of whom they will in all likelihood have never met before. When I say "the legislation as it stands," I mean the legislation as it stands if the amendment is accepted and my amendment to the amendment is not.

There are other points, and I am delighted to see my noble friend Lady Trumpington in her place because she will be taking some of them for me, and perhaps I might move on to what I think is the concluding argument. The final point is that the extension to informal patients of the provisions of Amendment No. 41 undermines one of the most basic principles of our most imaginative 1959 Mental Health Act.

That Act put into law the recommendations of the Percy Commission on the Law Relating to Mental Illness and Mental Deficiency and which sat from 1954 to 1957 considering every aspect of mental health legislation. One of its most enlightened and progressive principles was that as far as possible a patient with mental disorder should be treated in the same way as a patient with a physical disorder. Hence their proposal to remove certification, which was seen as a bar to enabling the patient to receive the treatment he needed and wanted. The psychiatric profession has responded to the spirit of the 1959 act to the extent that 95 per cent. of patients in psychiatric hospitals are now voluntary patients. However, I suggest that Amendment No. 41 is putting voluntary patients in the same category as detained patients in a most important respect and is thus tending to reverse the enlightened advances of the 1959 Act.

I implore your Lordships to consider this as being a matter of the highest importance. Enough time for discussion in another place was not accorded to it—it came on right at the end, there being only five Members in the Chamber when the amendment was accepted by the Government; and it has now come to us and we have had to rush to deal with it. I have been writing letters in my own hand to the Minister to get them to him in time so that he may have an appreciation of this most fundamental issue. It has not been discussed with the medical profession and it brings in a totally new picture. As I pointed our earlier, the Minister for Health said it was a drastic step, and it surely was.

I hope my noble friend the Minister will say to himself, "I know I have been advised to reject this", as I am sure he has, "hut I will not do that. I shall be strong and say that it is not really good enough", and at least, with that sort of background, there will be time for the matter to go back to another place before Prorogation at teatime tomorrow. It would be sensible for the Minister to accept my amendment, and I hope your Lordships will find it possible to give me every support, in speeches and in other ways should that become necessary. I beg to move.

Moved, That this House doth agree to the amendment to the amendment.—(Lord Mottistone.)

Baroness Trumpington

I must admit, my Lords, that Amendment No. 41 from another place, as it stands, leaves me a little uneasy. The argument, should it be used, that voluntary patients may become involuntary because of their conduct or would try' to leave hospital would, I believe, be a thin one. If there are such patients, they are certainly not the same ones who ask for psycho-surgery. If such a voluntary patient is detained, the Bill as it stands would preclude giving such treatment without his consent. It was said that the voluntary patient needed protection, but from what? If he does not want that form of treatment, he cannot be given it.

A further argument, which is perhaps the most basic, is that the inclusion of consent to treatment legislation for voluntary patients strikes at the very basis of doctor-patient relationships. Of course, where the patient is compulsorily detained there must be safeguards to protect his rights. But if he has a doctor of his own choosing and he accepts his doctor's advice that a certain form of treatment would be beneficial, I believe most people would take the view that he has the right be receive that treatment without interference by the state.

The enactment of this new provision would be a dramatic departure from that basic human right. The doctor who recommends or carries out medical treatment is bound by professional ethics and is accountable to a statutory body, the General Medical Council. He is bound to adhere to what is accepted as normal clinical practice which, in the case of psycho-surgery, includes most of the provisions which it is sought to put into law. I look to the Minister to put my mind and that of my noble friend Lord Mottistone at ease on these and other points.

Lord Hill of Luton

My Lords, the noble Lord, Lord Mottistone, has raised some very important issues. This House welcomed earlier today the detailed protection for the certified patient in respect of the issue for his or her consent, and that protection is absolutely right. But for a voluntary patient, such a patient might just as well, in many conditions, go to the National Hospital for Nervous Diseases in Queen's Square or the neurological department of any teaching hospital or other hospital, where this proviso would not obtain. It really is illogical, it seems to me, to bring normal people into the same category as certified people for the purpose of this testing of the power to consent.

I know, of course, that there will be marginal cases. I know there will be voluntary patients who are seriously ill, as seriously ill as some who are certified. But, by and large, the contrast is between the seriously mentally ill and the normal person, at least not so suffering from mental disease as to justify certification.

Your Lordships may think that it is an unreasonable fear that has been expressed through the noble Lord by the Royal College of Psychologists and others, but it must be remembered that although the specific reference today is to certain forms of treatment—psycho-surgery on the one hand and prolonged hormone treatment on the other—the Minister has the power to extend that list in the future. We in your Lordships' House know how wise and sensible Minister's always are, but that is not so widely understood outside and there is a real fear that this extension of power may go beyond the very serious conditions in which it is confined at the moment.

I hope, therefore, that the Government will withdraw their amendment. That, I believe, would be the easiest way of giving satisfaction in terms of the amendment standing in the name of the noble Lord, Lord Mottistone. I did not realise, until Lord Mottistone pointed it out, that the matter came on in another place late when there were only five Members in the Chamber. There was one speech moving the amendment as expressed in Amendment No. 41 here and the Minister immediately rose and accepted it.

It does not make sense—wise though the provision is for those who are certified—to extend that to those who are not certified but voluntarily go into hospital: to extend that compulsion of the second opinion. It is not surprising, difficult though some may find it to believe, that there are some members of the medical profession and some important medical organisations who believe that it is the thin end of a wedge that will tend to make the requirement of a second opinion extend to other fields and, as is now proposed, to the field of mental disease. I urge the Minister to look again at the matter.

The Royal College of Psychiatrists have played an immensely useful part throughout the Bill in consultation and have done their best at the various stages to offer advice. They were not consulted when the Government decided in another place to accept the amendment, and they have not been consulted since. I hope this will be seen in terms of the attitude of the medical profession and its desire for clinical freedom, which I believe to be in the public interest. It is dangerous, in their eyes and in mine, to extend this important decision in relation to the certified to the uncertified and probably the uncertifiable, the voluntary patient who goes into hospital.

So I would support what the noble Lord has said, and ask the Minister to think again. It would be a great pity if at this last minute the amendment is passed, is introduced into the Bill, when it is inescapable that it cannot he further discussed or removed. I hope that he will not proceed with the amendment, bearing in mind the views of important sections of the medical profession, and I believe the generally wise view that what is appropriate for the certified patient is not appropriate for the uncertified, the voluntary patient.

5.30 p.m.

Baroness Faithfull

My Lords, I should like to put another point of view in supporting my noble friend Lord Mottistone. Earlier in the debate this afternoon my noble friend the Minister spoke of the greater involvement of social workers in carrying out work under the Bill. I have had many patients who refused to go into hospital on a voluntary basis. They fell into the category of the grey area—they could be voluntary, they could be statutory. I am sure that the noble Lord, Lord Hill of Luton, will agree that there is a band of patients who fall into a kind of grey area.

But, equally, both doctors and social workers know that if a patient goes in voluntarily, in particular in the field of mental health, he is far easier to treat. He will accept treatment much more easily than if he goes in as a statutory patient. I have had a number of patients who fell into this category, and I was called in to see them before an order was made in respect of them.

Because I had known them in the past, because we had a good relationship, they agreed to go in as voluntary patients. How will the social workers who carry out that task, who under the Bill are required to do it, feel if, having put to patients the different point of view about going in on a voluntary basis, later find that the patients are to be treated as statutory patients? I think that as social workers we would feel that we had led them up the garden path—to put it crudely. I very much hope that the Minister will consider not only the doctor-patient relationship, but in addition the patient-social worker relationship.

Lord Donaldson of Kingsbridge

My Lords, I want to speak very briefly. I have not previously spoken on the Bill, but I have been very interested in this particular point. It seems to me that the amendment means that when I suffer a nervous breakdown, which I am always expecting, and go voluntarily into a hospital, I cannot accept my doctor's advice without somebody else telling me so. That seems to be quite impossible—

Lord Trefgarne

My Lords, we are considering only the most extreme kinds of treatment, such as psycho-surgery. I wonder whether the noble Lord is anticipating offering himself for that kind of treatment.

Lord Donaldson of Kingsbridge

I am not anticipating it—

Lord Mottistone

My Lords, my amendment does not consider psycho-surgery; it deliberately excludes it.

Lord Donaldson of Kingsbridge

My Lords, I thought that that was the case. Anyway, my point is quite clear. As a voluntary patient I am not prepared to have anyone tell me whether I should or should not take the doctor's advice. There are many other complications in regard to this particular position. If the noble Lord is to say that he can deal with the matter in some other way, and that he might otherwise lose the Bill, personally I should advise my friends—and it is not my business, but rather my colleague's business to do so—to go along with that, because I do not think that we want to wreck the Bill. However, I have not the slightest doubt about what is right here.

Lord Wallace of Coslany

My Lords, I want to say only a few words. I have listened to the argument, and I think that probably much heavy weather is being made regarding the amendment. I have the fear that if the noble Lord, Lord Mottistone, presses his amendment to a Division, or if the Government withdraw their clause, the Bill, at this—

Lord Trefgarne

My Lords, I feel that, with your Lordships' permission, I must at this point intervene. It is not a Government clause that we are discussing; the amendment was proposed by the noble Lord's honourable friend in the other place.

Lord Wallace of Coslany

My Lords, that may be so, but I am dealing only with the technicalities of the situation. I am only trying to be helpful, because I am very anxious to see the Bill on the statute hook. We are now placed in a difficult situation, owing to the time factor. If the noble Lord, Lord Mottistone, presses his amendment to a Division and it is carried, or, alternatively, if the Government accept his advice and withdraw, the Bill would have to go back to another place. Now the trouble is that time is getting short, and, having served in the other place, I must say, with all due respect to it, that it is a very unpredictable place. We do not even know at what time tomorrow Prorogation will take place, and there is a great risk of the Bill being lost. That is all that I should like to say. I am very keen indeed to see the Bill on the statute hook, but I see the noble Lord's point.

Lord Kilmarnock

My Lords, I should like to ask the noble Lord, Lord Trefgarne, whether he can perhaps help the House to help him. It seems that the amendment which was passed in another place errs, perhaps in an over-protective direction towards the informal patient. Of course we all accept that this kind of protection is required for a detained patient. But there might be offered here a certain over-zealous protective covering. I very much accept what the noble Lord, Lord Wallace of Coslany, has said—that we do not want to lose the Bill. Can the noble Lord the Minister give us any prospect of the matter being put to rights in the regulations, or possibly in the code of practice which the Mental Health Act Commission is due to draw up? Would either of those routes be possible in order to eliminate the anomaly without our having to send the Bill back to another place?

Lord Winstanley

My Lords, I should like to speak to the same plea; in other words, to double it, as it were. My anxiety is precisely the same. Noble Lords may recollect that I played a perhaps prominent part in persuading the House to introduce an independent element into the whole question of the determination of a patient's ability to consent, and the question of whether or not he had consented, with respect to the treatments, which were then defined as treatments of special concern. I think it only right to say that when I was doing that at an earlier stage of the Bill in your Lordships' House, I did not have in mind the voluntary patients. Therefore, in many ways I sympathise with what has been said by the noble Lord, Lord Mottistone, and indeed by the noble Lord, Lord Hill of Luton, though I think that perhaps some of their fears are a little exaggerated, in that we have not yet seen what are the precise treatments, they have not yet been defined in the regulations, and so on. Perhaps the fears are a little overstated.

Nevertheless, on balance, perhaps I would be induced to support the noble Lord, Lord Mottistone, in thinking that his ideas might be preferable to the actual Commons amendment. But I share the anxieties of the noble Lord, Lord Kilmarnock, and personally I should he deeply distressed if we were to lose the Bill, which I think is a very valuable Bill indeed. I, too, should welcome some advice from the noble Lord the Minister as to the possible consequences and as to the opportunities open to us at this stage. Of course we all know that we can change the Bill and take the consequences, but the Minister might be able to tell us what those consequences are likely to be. If he could do that, it might be helpful to some of us.

Lord Trefgarne

My Lords, I apologise if I intervened rather hastily when the noble Lord, Lord Wallace of Coslany, was speaking a few moments ago, but I did not want the noble Lord inadvertently to convey to your Lordships the impression that the amendment was some kind of Government plot. At the outset I want to make it absolutely clear that the amendment was proposed by the Opposition in the other place and accepted by the Government, and therefore enjoyed the support of the two largest parties in the other place. I hesitate to say that it enjoyed all-party support. I am not certain what the attitude of the other parties in the other place would have been; that was not clear from the record of the debate that I have seen.

Amendment No. 41 applies the special safeguards for psycho-surgery and other exceptional treatments for mental disorder—I want to repeat that: it applies the special safeguards for psycho-surgery and other exceptional treatments for mental disorder—to informal patients, as well as to detained ones. Of course, that does not authorise treatment without consent for informal patients, but it extends to them the special protection of the Mental Health Act Commission in the small number of cases where very exceptional treatments for mental disorder, like psycho-surgery or hormone implantation, are used, and where it is particularly important to be sure that informed consent has been given.

That change was made at a very late stage and without the consultation with the medical profession which has accompanied the other changes in the Bill. I know that the Royal College of Psychiatrists feels strongly about the lack of consultation, and I have every sympathy with them. I wish to say quite plainly that the Government would have much preferred to consult the Royal College and others, and I am very sorry that because the amendment in question was tabled in the other place at a very late stage—just before Report—there simply was not time to do that. But, as I have said, there was agreement on all sides in the other place that the change was desirable and that it should be made while they had the opportunity.

The Royal College of Psychiatrists is also concerned about the principles of the amendment, because it applies to informal patients; but I wish to assure your Lordships and the Royal College and others concerned with this amendment that it is a very limited one made for special reasons, and does not affect relations between doctor and patient for the generality of treatments. I know that the Royal College is also afraid that at some time in the future other treatments might be included in the regulations to be made under Amendment 35—electro-convulsive therapy, for example. The Government are clearly committed to putting ECT into the other set of regulations, so that ECT can be given without consent if necessary, and those regulations will apply only to detained patients. That is the undertaking given by my honourable friend the Minister of Health in another place, and I repeat that undertaking here tonight.

The procedures which will affect informal patients will apply only to psycho-surgery—that is on the face of the Bill—and to those other treatments which are specified in regulations. Those regulations can be made only after consultation with interested bodies—that, too, is in the Bill—and we shall also be seeking the advice of the Mental Health Act Commission. We intend to put certain hormone treatments in the regulations, but we shall not add other treatments unless there is a clear consensus of advice that we should do so. These regulations will be laid before your Lordships' House under the negative resolution procedure, so that your Lordships will have a chance to scrutinise them.

I hope that with that assurance my noble friend Lord Mottistone will not wish to press his amendment to Amendment No. 41. I appreciate that his amendment is intended to narrow the scope of Amendment No. 41, but I hope nonetheless that he will be persuaded by the arguments that I have deployed. If treatments are of such special concern that it is decided, after full and thorough consultation, that they should be given to detained patients only with consent and a second opinion, then those same safeguards really should be extended to informal patients. That was the clear view of the other place, and I hope it will likewise be the view of your Lordships.

The noble Lord, Lord Winstanley, specifically asked me about what would be the procedural consequences of your Lordships' disagreeing one of the Commons amendments at this stage, or perhaps agreeing only to a revised form of a Commons amendment at this stage. I must say that as far as I know the other place have made no provision to consider any matter of that kind. That is not to say that provision could not be made: I have not inquired into it. I hope the Commons will not he asked to consider any revision to the proposals which have come forward. I believe that on the merits of the case your Lordships ought to accept the amendment proposed by the Commons and disagree the further amendment proposed by my noble friend.

I do not wish to argue against this amendment simply on the grounds that the other place has no time to consider it. If time is essential then time clearly must be found, but I believe that on the merits of the case the amendment made by the other place ought to be agreed, and I hope that in the light of that my noble friend Lord Mottistone will not wish to press his amendment.

Lord Mottistone

My Lords, I thank my noble friend for those remarks, particularly the closing ones, because it seems to me that it would be intolerable, if we felt in our wisdom that we ought to make this amendment, that we should be hampered by the thought that procedure might get in the way. I appreciate what was said by the noble Lord, Lord Wallace, with his great experience of another place, but I really do think that if we feel we ought to have my amendment in the Bill, to adjust it to a better balance, then we should say so; and I am delighted that my noble friend has said that, though he does not want that, procedure is not the hampering factor.

I should also like to make another remark about what my noble friend said. He said on many occasions that there was overwhelming support in another place, and that both the major parties agreed. Of course, we do not really know that, because the amendment was put down and spoken to by three or four Members. There were others present, not just those from the Opposition party which agreed to it, but there were not very many who spoke and it was not taken to a Division, so we shall never know what people thought—not really. It is not like something put in the form of a Question; it is just that the Government accepted an Opposition amendment. It was as simple as that. So I do not think that is an important factor.

I personally think that the most important speeches that have been made on this point have in fact been those made by the noble Lord, Lord Hill of Luton, and my noble friend Lady Faithfull. Both, from their different ends, back up the principle behind this amendment. I think we must therefore test the opinion of the House and see what noble Lords think about it.

5.48 p.m.

On Question, Whether the amendment to the Motion (No. 41A) shall be agreed to?

Their Lordships divided: Contents, 22; Not-Contents, 125.

DIVISION NO. 1
CONTENTS
Ailesbury, M. Mottistone, L. [Teller.]
Barrington, V. Pitt of Hampstead, L.
Brookes, L. Richardson, L.
Cullen of Ashhourne, L. Shannon, E.
Faithfull, B. [Teller.] Somers, L.
Hill of Luton, L. Spens, L.
Hylton-Foster, B. Stamp, L.
Jacques, L. Taylor, L.
Kimberley, E. Trumpington, B.
Loudoun, C. Vaux of Harrowden, L.
Monk Bretton, L. Willis, L.
NON-CONTENTS
Abinger, L. George-Brown, L.
Airey of Abingdon, B. Glenarthur. L.
Alexander of Tunis, E. Glenkinglas, L.
Allerton, L. Gormanston, V.
Ardwick, L. Gormley, L.
Avon, E. Greenway, L.
Balfour, E. Gridley. L.
Balogh, L. Hailsham of Saint Marylebone, L.
Bathurst, E.
Belhaven and Stenton, L. Hale, L.
Bellwin, L. Henley, L.
Beloff, L. Hives, L.
Bessborough, E. Holderness, L.
Bishopston, L. Home of the Hirsel,
Blyton, L. Ingleby, V.
Bowden, L. Inglewood, L.
Briginshaw, L. Jeger, B.
Bruce of Donington, L. Jenkins of Putney, L.
Caithness, E. Kaldor, L.
Cathcart, E. Kilmany, L.
Cledwyn of Penrhos, L. Kinnoull, E.
Cockfield, L. Lauderdale, E.
Cooper of Stockton Heath, L. Lee of Newton, L.
Craigavon, V. Lindsey and Abingdon, E.
Craigmyle. L. Llewelyn-Davies of Hastoe, B.
Daventry, V. Long, V.
David, B Lucas of Chilworth, L.
Davies of Leek, L. Lyell, L.
Davies of Penrhys, L. McAlpine of Moffat, L.
Denham, L. [Teller.] McFadzean, L.
Dilhorne, V. Mackay of Clashfern, L.
Drumalbyn, L. Macleod of Borve, B.
Eccles, V. Mansfield. E.
Elton, L. Margadale, L.
Ferrers, E. Marley, L.
Ferrier, L. Masham of Ilton, B.
Fraser of Kilmorack, L. Merrivale, L.
Gainford, L. Mills, V.
Gaitskell, B. Milverton, L.
Geoffrey-Lloyd, L. Montgomery of Alamein, V.
Morris. L. Straholgi, L.
Norfolk, D. Strathcarron, L.
Northchurch, B. Strathcona and Mouth Royal, L.
Onslow, E.
Oram, L. Strathspey, L.
Orkney, E. Suffield. L.
Orr-Ewing, L. Swansea, L.
Paget of Northampton, L. Swinton, E.
Peart. L. Taylor of Blackburn, L.
Pender, L. Taylor of Mansfield, L.
Platt of Writtle, B. Teynham, L.
Ponsonby of Shulbrede, L. Thurlow, L.
Rawlinson of Ewell, L. Trefgarne, L.
Renton, L. Trenchard, V.
Rochdale, V. Underhill. L.
Romney, E. Vickers, B.
Ross of Marnock, L. Vivian, L.
St. Aldwyn, E. Wakefield of Kendal, L.
Sandys, L. [Teller.] Wallace of Coslany, L.
Segal. L. White, B.
Skelmersdale, L. Windlesham, L.
Slim. V. Wise, L.
Stewart of Alvechurch, B Young, B.
Stewart of Fulham, L.

Resolved in the negative, and amendment to the Motion disagreed to accordingly

5.57 p.m.

Lord Winstanley

My Lords, perhaps, for the record. I may say that Amendment No. 41 refers to the new clause in Amendment No. 40. The noble Lord will recollect that I asked him some questions. He answered all of them except one in regard to the definitions. Since this is also relevant to Amendment No. 41 perhaps he could now reply to that question. On this, I asked whether there was any special significance in the omission of the words "psychological consequences" in relation to "hazardous" when there was the inclusion of "psychological consequences" in relation to "irreversible". I asked him specifically whether the inclusion of the word "psychological" in one case and its omission in the other had any particular significance.

Lord Trefgarne

My Lords, I confess that I had forgotten the question that the noble Lord had asked and I must also say that for the moment I have lost the answer, too. I wonder if the noble Lord will forgive me on this occasion and allow me to write to him with the answer.

On Question, Motion agreed to.