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Mental Health Bill [HL]

moved Amendment No. 10: 10: After Clause 6 , insert the following new Clause— ““Provision of appropriate food and drink (1) Section 58 of the 1983 Act is amended as follows. (2) In subsection (1)(b) after ““medicine”” in the first line insert the words ““, but excluding the provision of food and drink,””. (3) After subsection (1)(b) insert— ““(c) the provision of adequate food and drink to a patient.”” (4) After subsection (3) insert— ““(3A) Subject to section 62 below, a patient shall be provided with adequate food and drink at all times unless— (a) he has consented not to receive adequate food and drink and either the responsible medical officer or a registered 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 the nature, purpose and likely effects of this decision and has consented to it; or (b) a registered 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 the decision not to receive adequate food and drink or has not consented but that, having regard to the likelihood of its alleviating or preventing a deterioration of his condition adequate food and drink should not be given.”” (5) In subsection (4) after ““(3)(b)”” insert the words ““or (3A)(b)””.”” The noble Baroness said: Until recent years, it was always without question that patients in hospitals would be given food and fluids. That was absolutely automatic. Everyone knows perfectly well that, without food and fluids, every living creature will die. If anyone were to be sick in hospital, they would be fed. There was no doubt about that once, but not any more. We all understand that some conditions and illnesses mean that a patient cannot take food in the normal way through the mouth, but for over 100 years there have been other ways to ensure that patients get the sustenance that keeps them alive, and those ways were adopted. Yet a few years ago—I am not sure when, as it made no headlines at the time—the medical profession decided to reclassify the custom of feeding hospital patients. It was henceforward to be called ““medical treatment””. Plainly, that classification is absurd. Is a mother giving a bottle to her baby giving that child medical treatment? Is a husband taking his wife out to dinner to celebrate an anniversary giving her medical treatment? Do we go to the Long Table in the Dining Room to receive medical treatment? Of course we do not, but the change in classification means that people in hospitals may no longer rely on getting their meals as an automatic part of hospital care. As that is now ““medical treatment””, the doctors or other hospital staff decide whether it will be administered. That is a hugely significant change. I do not believe for one moment that patients are routinely left unfed or that a large number suffer in this way. For some years now, however, I have become more and more concerned about evidence that is accruing that it is not uncommon for hospital patients to be starved to death, or to die for lack of fluid. I must remind your Lordships that that is a terribly painful way to die. In the latter stages of starvation, people are too weak to put forward any strong demand for food or drink, and they die. I first drew attention to this situation in a debate reported in Hansard on 12 March 2003. I pointed out that the noble and learned Lord, Lord Mustill, was on record as saying, following the reclassification of feeding as medical treatment, that the law is now left in a morally and intellectually misshapen state. I quoted from an ITV programme that showed patients who had been left without food. One old man was lying in bed, weak and unable to speak. He was being given neither food nor water directly or by any other method. He took 18 days to die. A lady told me that her husband, who was a stroke victim, had all fluids denied him without a word to him or to her. She demanded to see the doctor in charge and that her husband be given something to drink, or at least to moisten his mouth. He began to get better as soon as her insistent demands were met. I am told that later she was able to take him home and look after him there. Evidence, which I hope the Committee will agree is incontrovertible, came from the other place. A friend and colleague, who was an MP for many years and had some heavy jobs and important responsibilities, has a wife who became very ill. He was taking as much time as he could from his duties to sit by her hospital bed. After three days he thought, ““That’s funny. I can’t remember any occasion in the last three days when she has been given any food or liquid””. He asked the staff nurse about this, and she said, ““Oh, we’re not feeding her””. He said, ““Who on earth agreed to that?””. No one had. His wife was not told, nor was he; she was just denied food and liquid. That actually happened; it was the experience of a colleague. On the day I spoke of these things in this Chamber I introduced my Patients’ Protection Bill, which would have given some protection to people who were being treated like this. The Government blocked that Bill, but the Minister, the noble Lord, Lord Filkin—who, I am sure, wanted to help; he was utterly sincere—told me not to worry, because the aims of my Bill would be achieved in the 2004-05 Mental Health Bill, which at the time was going through this House. Indeed, that Bill contained some words that might well have ended the appalling practice of starving patients. So I sat back and waited to see whether the noble Lord’s genuine suggestion to me, that it would all be all right in the future, came about. I am sorry to say that it did not. Things, in fact, have got worse. That is why my amendments are on the Marshalled List. We were told—indeed, it was mentioned in the Queen’s Speech—that this Bill would amend the earlier Bill. Because I was told the necessary changes would happen in the earlier Bill, and this is an amending Bill, I tabled these amendments to this Bill. I would not normally have sought to insert them in a mental health Bill, but anything done by the noble Lord, Lord Filkin, for whom I have enormous respect, is quite good enough precedent for me. I have listened with great care to almost all the debates on this Bill so far. I take this opportunity to register huge admiration for the level of expertise displayed by those who have contributed. This House and our country are greatly indebted to Peers such as the noble Baronesses, Lady Murphy and Lady Finlay, and the noble Lords, Lord Alderdice and Lord Carlile, who between them have years of hands-on experience of what happens with mental patients and with the law. This House provides the country with a wonderful thing: so much expertise from people who know exactly what they are talking about; and advice from the wealth of that experience just when we need it. How fortunate we are to have the benefit of that at no cost. I am only sorry that the Government take no notice, but that does not nullify the contributions made. I would not presume to speak in a debate that belongs to those professionals, but I have listened with great care and I have attended several meetings about the Bill. I was on the committee studying the previous one and I understand exactly what this Bill is about. I tabled my amendments not because I judged a mental health Bill to be the right place for them, but because of that precedent. I am also told that my amendments are unacceptable because one of them would mean that patients who have anorexia could not be helped because they do not wish to be fed, and that the amendment would harm their treatment. That depends on how one reads it. It says that a patient ““has not consented””, but it is not a matter of that. In any case, we could argue that one way or another. The two final amendments make quite clear what I am aiming at; they say clearly that the assessment should be changed: "““In section 64(1) of the Mental Capacity Act 2005 in the definition of ‘treatment’, after ‘procedure’ insert ‘but does not include provision of adequate food and drink’””." It is amply clear that I am trying to protect patients by disallowing doctors to refuse them food or liquids. There is urgent need for the law to intervene in this matter. My Bill to save patients, as I have said, was blocked. The pious hope that the previous Bill would save them has not come true. I am afraid the situation has worsened. Recently, a hospital doctor, speaking in court under oath, said that two or three patients a week were dying in his hospital alone because they were not being given food or fluids. He said, ““I see it happening all the time””. After the most recent BBC programme on this subject, which was broadcast just before last Christmas, the presenter received a huge number of follow-up calls telling of individual experiences of friends, acquaintances or relatives who had been denied food or fluids. One complaint came up time after time, and I would not be surprised if Members of the Committee had not heard it in their own spheres: a cup of tea, a glass of water or even a plate of food would deliberately be placed where a bed-bound patient could not possibly reach it and after an hour or so a nurse would come bustling in and say, ““Oh, not hungry today, Mr Jones?””, and without receiving an answer would just remove it. That complaint was made dozens of times. There were nearly 140 complaints recounting experiences such as I describe. Those things worry me greatly. Of course I understand how busy nurses are. I appreciate that feeding patients takes time and patience, but we really cannot go on like this. The person in charge must make sure that the staff feed the patient, appeal to relatives to give their help, seek volunteers—I think that many would be ready to help in this way—or allocate money for more paid help in feeding patients. In what I believe is still, by and large, regarded as a Christian country, or at any rate a humane one, we must not stand silently by while sick people are killed by deliberate starvation. I know about elderly bed blockers. I read in the paper only last week that they are such a nuisance that they will be sent home and their family doctor will have to do any follow-up. I do not know whether that is true—one does not believe all one reads in the papers—but it was reported. I realise that some people are really rather a nuisance and their room is preferable to their company but I simply cannot accept that they should be deliberately done away with. These amendments are framed with care. The matter is not always straightforward, and I tried to indicate that sometimes a patient may not want food for various reasons, or they may actually be harmed by it. These changes would reinstate feeding patients as the recognised norm. It would send the message that patients must be cared for properly. It will no longer be possible for medical staff, without the slightest opportunity for a friend or relative to comment or even to be told, to withhold food and drink from a patient. The seriousness of such an act will be underlined by the involvement of a responsible medical officer, as set down in the amendment, having to certify in writing why it is being done. The patient will have to be consulted. It will not be possible simply to put the notice ““nil by mouth”” on the patient’s record, masquerading under the guise that he or she is being given medical treatment. I have had several instances reported to me of patients begging relatives to give them a drink or even just something to moisten their mouth but because those relatives humbly believe that the hospital must know best—and many do—they think there must be some important medical reason for the decision. They think that they are not important enough to argue against what is being done to their dear ones. I recall one woman who told me that when she finally gave in and gave her mother a damp sponge to suck, she was appalled to see that the gums and flesh inside her mother’s mouth were stuck together because her mouth was utterly dried up. A post-mortem on one old man showed that his tongue had rolled right back down his throat while he desperately searched for water. If we fail to act, if we turn our backs and silently acquiesce with the practice of starving people to death in our hospitals, even if it only happens occasionally, real fear will spread in the minds of anyone over 65 if they learn they must go into hospital, especially if they have no friends or relatives to visit them. They are already scared; they fear MRSA or Clostridium difficile (CD), the new menace in hospitals, but this new fear will be even more terrible. Medical treatment is one thing; providing an essential for life is quite another. The Minister may seek to deny that this amendment is appropriate here; if so, will he say where these amendments would be appropriate and whether or not he is happy to allow the present situation to remain? I beg to move.