HL Deb 27 October 1982 vol 435 cc516-25

(1) This Part of this Act applies to any patient liable to be detained under the principal Act or this Act except—

  1. (a) a patient who is liable to be detained by virtue of an emergency application and in respect of whom the second medical recommendation referred to in section 29(3)(a) of the principal Act has not been given and received;
  2. (b) a patient who is liable to be detained by virtue of section 30(2) or (3), 64(1), 135 or 136 of that Act or by virtue of section 28 above; and
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  3. (c) a patient who has been conditionally discharged under section 66(2) of that Act or paragraph 5 or 6 of Schedule 1 to this Act and has not been recalled to hospital.

(2) In this Part of this Act "the responsible medical officer" means the medical practitioner in charge of the treatment of the patient in question and "hospital" includes a mental nursing home.

(3) Any certificate for the purposes of this Part of this Act shall be in such form as may be prescribed by regulations made by the Secretary of State.".

35 After Clause 38, insert the following new clause: "Treatment requiring consent and a second opinion. .—(1) This section applies to the following forms of medical treatment for mental disorder

  1. (a) any surgical operation for destroying brain tissue or for destroying the functioning of brain tissue; and
  2. (b) such other forms of treatment as may be specified for the purposes of this section by regulations made by the Secretary of State.
(2) Subject to section [Urgent treatment] below, a patient shall not be given any form of treatment to which this section applies unless he has consented to it and
  1. (a) a medical practitioner appointed for the purposes of this Part of this Act by the Secretary of State (not being the responsible medical officer) and two other persons appointed for the purposes of this paragraph by the Secretary of State (not being medical practitioners) have certified in writing that the patient is capable of understanding the nature, purpose and likely effects of the treatment in question and has consented to it; and
  2. (b) the medical practitioner referred to in paragraph (a) above has certified in writing that, having regard to the likelihood of the treatment alleviating or preventing a deterioration of the patient's condition, the treatment should be given.
(3) Before giving a certificate under subsection (2)(b) above the medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient's medical treatment, and of those persons one shall be a nurse and the other shall he neither a nurse nor a medical practitioner. (4) Before making any regulations for the purposes of this section the Secretary of State shall consult such bodies as appear to him to he concerned.".

36 After Clause 38 insert the following new clause: Treatment requiring consent or a second Opinion. .—(1) This section applies to the following forms of medical treatment for mental disorder—

  1. (a) such forms of treatment as may be specified for the purposes of this section by regulations made by the Secretary of State; and
  2. (b) the administration of medicine to a patient by any means (not being a form of treatment specified under paragraph (a) above or section [Treatment requiring consent and a second opinion] above) at any time during a period for which he is liable to he detained as a patient to whom this Part of this Act applies if three months or more have elapsed since the first occasion in that period when medicine was administered to him by any means for his mental disorder.
(2) The Secretary of State may by order vary the length of the period mentioned in subsection (1)(b) above. (3) Subject to section [Urgent treatment] below, a patient shall not be given any form of treatment to which this section applies unless—
  1. (a) he has consented to that treatment and either the responsible medical officer or a medical practitioner appointed for the purposes of this Part of this Act by the Secretary of State has certified in writing that the patient is capable of understanding its nature, purpose and likely effects and has consented to it; or
  2. (b) a medical practitioner appointed as aforesaid (not being the responsible medical officer) has certified in writing that the patient is not capable of understanding the nature, purpose and likely effects of that treatment or has not consented to it but that, having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should he given.
(4) Before giving a certificate under subsection (3)(b) above the medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient's medical treatment, and of those persons one shall he a nurse and the other shall be neither a nurse nor a medical practitioner. (5) Before making any regulations for the purposes of this section the Secretary of State shall consult such bodies as appear to him to be concerned.

37 After Clause 38 insert the following new clause:

"Plans of treatment.

.—Any consent or certificate under section [Treatment requiring consent and a second opinion] or [Treatment requiring consent or a second opinion] above may relate to a plan of treatment under which the patient is to be given (whether within a specified period or otherwise) one or more of the forms of treatment to which that section applies."

38 After Clause 38 insert the following new clause:

"Withdrawal of consent.

.—(1) Where the consent of a patient to any treatment has been given for the purposes of section [Treatment requiring consent and a second opinion] or [Treatment requiring consent or a second opinion] above, the patient may, subject to section [Urgent treatment] below, at any time before the completion of the treatment withdraw his consent, and those sections shall then apply as if the remainder of the treatment were a separate form of treatment. (2) Without prejudice to the application of subsection (1) above to any treatment given under a plan of treatment to which a patient has consented, a patient who has consented to such a plan may, subject to section [Urgent treatment] below, at any time withdraw his consent to further treatment, or to further treatment of any description, under the plan".

39 After Clause 38, insert the following new clause:—

Review of treatment.

.—(1) Where a patient is given treatment in accordance with section [Treatment requiring consent and a second opinion] (2) or [Treatment requiring consent or a second opinion] (3)(b) above a report on the treatment and the patient's condition shall be given by the responsible medical officer to the Secretary of State—

  1. (a) on the next occasion on which the responsible medical officer furnishes a report in respect of the patient under section 43(3) of the principal Act (renewal of authority for detention); and
  2. (b) at any other time if so required by the Secretary of State.

(2) In relation to a patient who is subject to a restriction order or restriction direction subsection (1) above shall have effect as if paragraph (a) required the report to be made—

  1. (a) in the case of treatment in the period of six months beginning with the date of the order or direction, at the end of that period;
  2. (b) in the case of treatment at any subsequent time, on the next occasion on which the responsible medical officer makes a report in respect of the patient under section 27(3) above.

(3) The Secretary of State may at any time give a notice to the responsible medical officer directing that subject to section [Urgent treatment] below, a certificate given in respect of a patient under section [Treatment requiring consent and a second opinion] (2) or [Treatment requiring consent or a second opinion] (3)(b) above shall not apply to treatment given to him after a date specified in the notice and sections [Treatment requiring consent and a second opinion] and [Treatment requiring consent or a second opinion] above shall then apply to any such treatment as if that certificate had not been given.".

40 After Clause 38, insert the following new clause:—

"Urgent treatment.

.—(1) Sections [Treatment requiring consent and a second opinion] and [Treatment requiring consent or a second opinion] above shall not apply to any treatment—

  1. (a) which is immediately necessary to save the patient's life: or
  2. (b) which (not being irreversible) is immediately necessary to prevent a serious deterioration of his condition; or
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  3. (c) which (not being irreversible or hazardous) is immediately necessary to alleviate serious suffering by the patient; or
  4. (d) which (not being irreversible or hazardous) is immediately necessary and represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to himself or to others.

(2) Sections [Withdrawal of consent] and [Review of treatment] (3) above shall not preclude the continuation of any treatment or of treatment under any plan pending compliance with section [Treatment requiring consent and a second opinion] or [Treatment requiring consent or a second opinion] above if the responsible medical officer considers that the discontinuance of the treatment or of treatment under the plan would cause serious suffering to the patient.

(3) For the purposes of this section treatment is irreversible if it has unfavourable irreversible physical or psychological consequences and hazardous if it entails significant physical hazard."

40A After Clause 38, insert the following new clause:—

"Treatment not requiring consent.

The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, not being treatment falling within section [Treatment requiring consent and a second opinion] or [Treatment requiring consent or a second opinion] above, if the treatment is given by or under the direction of the responsible medical officer."

Lord Trefgarne

My Lords, we now come to a topic and a block of amendments through which we shall have to pick our way with care, particularly through the procedural niceties of an amendment which my noble friend Lord Mottistone proposes to move in respect of one of the Commons amendments. I will, with your Lordships' permission, move that this House doth agree with the Commons in their Amendments Nos. 34 to 40A en bloc. We can then deal with Amendment No. 41 and its amendment separately, and then I can return to the remainder of the block.

The issues concerning consent to treatment have been debated extensively in this House and in the other place. I should like to mention four aspects of the changes which have been made. First, multidisciplinary consultation; the Government have honoured the commitment that my noble friend Lord Elton gave to your Lordships at Third Reading to provide for three people, of whom only one is a doctor, to confirm that a patient has given informed consent to certain very exceptional treatments for mental disorder which need very particular safeguards. We intend that those safeguards should apply to psycho-surgery and hormonal implants but not to electro-convulsive therapy. I think there was agreement in the earlier debates in your Lordships' House that those were the particular treatments to cover. These are the forms of treatment set out in Amendment No. 35 which are so serious that the consent of the patient and a second opinion are required. That amendment, and the next also, provide for a different form of multi-disciplinary consultation. The independent psychiatrist who decides whether or not the treatment should be given must first consult a nurse and another health professional who have been caring for the patient.

My noble friend Lord Mottistone, incidentally, wrote to ask me who the other persons would be. In the case of Amendment No. 35(2), they would be persons appointed by the Mental Health Act Commission; in most cases they will be members of the Commission. They will be persons with some experience of mental disorder who will have the special responsibility of confirming whether the patient has given informed consent to a treatment of special concern. There are also references in Amendments Nos. 35(3) and 36(4) to other persons who have been professionally concerned with the patient's medical treatment. One of those will be a nurse and the other may be a psychologist, occupational therapist or other professional who has been working as one of the clinical team who care for the patient. I hope, therefore. I have been able to reassure my noble friend on that particular point.

The second point I would like to mention is the change in the treatments covered, with a flexible approach, since different safeguards are provided for different sorts of treatment. In the most serious category of extreme treatments for mental disorder, where consent and a second opinion are required, the amendments put psycho-surgery on the face of the Bill and provide for other treatments—for example, certain hormone implants—to be specified in regulations.

In the next category, where the patient's consent or a second opinion is required, the provisions no longer apply to all surgical procedures, diagnostic procedures and drugs but only to any that are specified in regulations and to prolonged drug treatment, ECT has been removed from the face of the Bill but will be listed in regulations as a treatment for which consent or a second opinion is needed.

I hope I can answer another point raised by my noble friend Lord Mottistone on this. Amendments Nos. 34 and 35 provide for regulations to be made after consultation with such bodies as appear to the Secretary of State to be concerned. My noble friend wished to ensure that medical advice was obtained. I assure my noble friend and your Lordships that there is no possibility of regulations being made on such vital questions of medical practice without consulting the medical profession, including, of course, the Royal College of Psychiatrists: they are very clearly concerned bodies.

The third change, Amendment No. 39, is an extra role for the Mental Health Act Commission. The commission will receive regular reports on treatment given to detained patients which has been authorised by a second opinion. Those were the observations I wanted to make on the amendments up to and including Amendment No. 40A. I hope that your Lordships will agree to them. I beg to move.

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

Lord Renton

My Lords, we have come to the most important group of amendments among all the many amendments that the other place has made to the Bill. Therefore. I hope that it will not be considered inappropriate to make one or two comments before my noble friend Lord Mottistone moves his amendment, as I assume he will be doing. It was clear from our proceedings in Committee and on Report that this was a very difficult matter indeed. As one who takes some interest in legislation I did not envy the Government having to replace the one clause that they had and try to find something which would as near as possible meet all the many opinions that we had, including those of eminent professional men in this House.

However, the Government have done it very effectively. They have gone into rather more elaborate detail than one would have wished or thought necessary. But for the power to make regulations, which occurs three times in these new clauses, the detail would have been even greater. Indeed, we have to face the fact that much will depend on what is in the regulations. I do not complain about that. I do not believe that the Government could reasonably have put much of what will have to be in the regulations as an addition to the new clauses. Not only would it have made them even longer and more elaborate but it would have meant going into clinical data which, as scientific progress takes place, change from time to time. It is much easier to lay amending regulations, where necessary, than to make amendments to a Bill of this kind after it becomes an Act. Therefore, I repeat that in my opinion the Government have got this about right. Obviously this is a matter on which opinions can differ on matters of detail. But on balance I think the Government are to he congratulated.

Lord Winstanley

My Lords, I join in underlining the remarks made by the noble Lord, Lord Renton. This is indeed a very important part of the Bill. These are the most important amendments from the other place with which we have to deal. It will also be remembered that this particular part of the Bill was the part that occupied our time in your Lordships' House perhaps for longer than any other part of the Bill

I should like at the outset to say that I, too, give my personal thanks to the Government for the steps they have taken in order to try to put into the legislation the wishes that were so clearly expressed in all parts of the House in our earlier proceedings. I should also like to pay tribute to those responsible, particularly to the noble Lord, Lord Elton, who played a prominent part in fulfilling an undertaking made I believe, in part in response to an amendment that I moved in your Lordships' House on Third Reading, and we then had to wait to see what happened in another place. Having seen what happened I think the Government have done as well as could be expected.

That having been said, I hope I shall have the indulgence of your Lordships' House if on this group of important amendments I take a little longer than I would wish to do at this stage of the Bill. Perhaps I shall be more likely to receive that indulgence if I give an undertaking to be extremely restrained on later amendments. Perhaps it will be understood that these are complex matters and there are one or two aspects on which it would be helpful if the Minister could give an explanation before we leave these matters as a whole.

The noble Lord, Lord Renton, has underlined and emphasised the importance of the regulations which are later to be laid with regard to all these new clauses of the Bill. That, of course, is quite fundamental. May I first ask whether the noble Lord is in a position to inform us whether or not your Lordships' House will have an opportunity of debating these regulations when they come to be laid?

I notice that the noble Lord, in introducing these amendments, referred to the consultations that will take place. They were referred to in the proceedings in another place. I welcome the assurance given now by the noble Lord that certainly the Royal College of Psychiatrists will be consulted and that professional opinion will be adequately consulted. But in earlier proceedings in another place the Minister for Health gave a fairly welcome assurance that in addition there will he consultations with certain lay bodies, and perhaps voluntary societies and associations which have a very important role to play, and even the community health councils. Perhaps the noble Lord is in a position to confirm the undertaking that there will be consultation in addition to the necessary consultation with professional bodies and certain lay bodies.

Moving to Amendment No. 36, may I briefly ventilate my anxiety regarding the phrasing in subsection 3(a) of the new clause. We have the words: certified in writing that the patient is capable of understanding its nature". Some of us made clear in earlier stages of the Bill that we preferred the words to be, the patient understands rather than, is capable of understanding". There is a difference there. Perhaps I can say that I think I am capable of understanding nuclear physics. I do not actually understand them and perhaps the fault is mine. It is likely that a patient who is capable of understanding does not in fact understand the matters that we are talking about, possibly because his attention has not been properly directed or because of shortcomings in the explanation given to him. Perhaps the noble Lord will say a little more about what he thinks is meant by the phrase: is capable of understanding". Does he really mean that at the end of the day everything possible will he done to ensure that the patient does understand?

I move briefly to my third and final point which arises in Amendment No. 40. I refer to the definitions of "irreversible" and "hazardous". Subsection (3) in the new clause states: For the purposes of this section treatment is irreversible if it has unfavourable irreversible physical or psychological consequences and hazardous if it entails significant physical hazard". There appears to me to he some significance about the omission of the word "psychological" in the second definition. The first definition refers to, unfavourable irreversible physical or psychological consequences". The second definition refers to, hazardous if it entails significant physical hazard". I was wondering whether the juxtaposition of those two definitions might lead the courts to assume, if they have to interpret this clause, that the omission of the word "psychological" in the second definition and its inclusion in the first definition means that "psychological hazard", if there is such a thing and I think it is possible that there could be, should be regarded as deliberately excluded from that definition. I am sorry to have wearied the House, but this is an important part of the new clauses and it is important that your Lordships' House fully understands and that explanations are given where possible. I hope that the noble Lord will be able to give me information on those points.

4.50 p.m.

Lord Kilmarnock

My Lords, I shall be very brief. The Government's new package is certainly an improvement in our view, on old Clause 41. It is an improvement in presentation and an improvement in the organisation of material. Frankly, the old Clause 41 had turned into a self-defeating maze. The subject is of such importance as to warrant a whole section rather than one labyrinthine clause under the heading "Miscellaneous and Supplementary" which came after "After Care" and "Correspondence of Patients". So far so good. However, I must enter one reservation.

Having decided on a new approach to presentation and arrangement of the material, it seems to me a pity that the Government did not take the opportunity of reviewing the whole principle behind this section. The new package simply reaffirms the approach taken in old Clause 41—that consent to treatment is not required except in certain circumstances. A great opportunity has, therefore, been missed to reaffirm the basic common law principle that consent is required before treatment can be given and then to proceed to the derogations from that principle that can obtain in certain exceptional cases.

The Government start from the principle that consent shall not be required except in certain circumstances. I still believe that, in fact, it is the wrong approach. It is clear that it is far from easy to balance the civil liberties of the subject with the natural concern of professional bodies for those in charge of patients' treatment. I accept that. But I believe that the same objects could have been achieved while maintaining the common law principle in all its august glory and then proceeding to the derogations from that principle. That said, of course, I personally welcome the very considerable move towards multi-disciplinary confirmation of capacity to consent, which was first raised in your Lordships' House. I consider that that is very much to be welcomed.

Another point is that the Mental Health Act Commission, which we shall be coming on to shortly, which remained somewhat under wraps while it was in your Lordships' House, has emerged with more teeth and, therefore, we must hope that the combination of the Mental Health Act Commission and a proper scrutiny of the regulations will, in fact, produce a smooth working of the new package that the Government have produced.

Baroness Macleod of Borve

My Lords, I wish to add my words of welcome to these new amendments. I should like to ask my noble friend the Minister whether he will see to it, either through regulations or through whatever other means the Minister has, that speed of decision is made possible within these regulations. I am informed by several psychiatrists that they worry that if they have to ask for several people to give their consent, even perhaps outside the hospital—as I think the noble Lord, Lord Winstanley, suggested—the speed of the decision might be slowed down. I understand from the people who have spoken to me that speed is very often of the essence. I hope that that will be made quite plain when the regulations are laid.

Lord Taylor

My Lords, the noble Lord used the term "prolonged drug treatment". In my experience that would cover almost the whole of psychiatric treatment. Is that the intention of his phrase?

Baroness Faithfull

My Lords, before my noble friend answers that point, I should like to be clear on one or two points. Under Amendment No. 34, Subseciton (1)(c) if a voluntary patient discharges himself and then later is brought back as a statutory patient, do the same rules apply? A number of doctors would prefer never to have any of these arrangements applied to voluntary patients. Do I take it that this only applies to statutorily detained patients?

Secondly, we have always assumed that a patient does not want treatment and that he must be safeguarded against being given it if he does not want it. What is the position if a patient wants a certain type of treatment and there is a division of opinion among the other people who are advising on the case?

Lord Trefgarne

My Lords, I shall deal first with the points raised by my noble friend Lady Faithfull and then I shall come to the others. As regards the position of the patient who seeks a certain kind of treatment—one of the kinds of treatment that will be covered by these amended provisions—if the second medical opinion does not agree that the treatment would be given, then it will not be given. All of these treatments require the consent of the patient—that is, the main body of the treatments.

The second point that my noble friend raised was the question of the application to detained patients and to voluntary patients. I hope that my noble friend will forgive me if I delay answering that point for a moment which, frankly, lies at the very heart of the amendment tabled by my noble friend Lord Mottistone. If my noble friend Lady Faithful] agrees, we can deal with that point perhaps at better length in a moment.

The noble Lord from the Cross Benches raised the question of prolonged drug treatment. We mean, for example, drug treatments beyond a period of, say, three months, which is provided for in Subsection 1(b) of Amendment No. 36. My noble friend Lady MacLeod of Borve asked about the speed at which decisions would be taken. The Mental Health Act Commission will get a second opinion quickly when it is clinically necessary—certainly within a day or so. There is in any event an exemption for treatment which is immediately necessary as provided for in Amendment No. 40. The noble Lord, Lord Kilmarnock, referred to the order of priorities as he saw it. He would have preferred a different supposition to start with I think. But we decided to do it the other way and I think that it is defensible. We start with the greatest safeguards at the beginning of the series of amendments and then move finally to Amendment No. 40A where there is clear legal authority for treatments which are not elsewhere covered.

The noble Lord, Lord Winstanley, asked about a debate on the regulations in Parliament. They will be subject to the negative resolution procedure and so there will most certainly be an opportunity for your Lordships to debate these regualations if your Lordships so choose. As for consultation with bodies other than the particular medical bodies to which I referred, yes, certainly I confirm the undertaking given by my honourable friend in the other place.

The noble Lord, Lord Winstanley, also asked about a patient's capability of understanding. I want to emphasise that the patient does have to consent. That means in law that he has the information and understands it, otherwise it is not a real consent. I hope that that covers the points which noble Lords have raised.

On Question, Motion agreed to.