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Mental Health Bill [HL]

moved Amendment No. 14: 14: After Clause 7 , insert the following new Clause— ““CHAPTER 1A Treatment safeguards Electroconvulsive therapy (1) Section 58 (treatment requiring consent or a second opinion) of the 1983 Act is amended as follows— (a) at the beginning of subsection (3)(b) insert ““except where the treatment is electroconvulsive therapy””; (b) after subsection (3)(b) insert ““; or (c) subject to section 58A, in the case of electroconvulsive therapy a registered medical practitioner appointed as aforesaid (not being the responsible clinician) has certified in writing that the patient is not capable of understanding the nature, purpose and likely effects of that treatment but that, having regard to the likelihood of its alleviating or preventing a deterioration of his condition the treatment should be given.””; (c) in subsection (4) after ““(3)(b)”” insert ““or (c) or section 58A or section 63A””. (2) After section 58 insert— ““58A Treatment for patients under 18 requiring consent and a second opinion (1) Subject to section 62 below, a patient under eighteen years shall not be given electroconvulsive therapy, unless a registered medical practitioner appointed as aforesaid (not being the responsible clinician) has certified in writing that— (a) the patient is capable of understanding the nature, purpose and likely effects of that treatment, and has consented, and that having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given; or (b) the patient is incapable of understanding the nature, purpose and likely effects of that treatment, and either— (i) a person who has parental authority for the patient understands the nature, purpose and likely effects of that treatment and has consented to the treatment and that having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given; or (ii) the High Court has determined that having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given. (2) For the purposes of treatment given under this section, either the registered medical practitioner responsible for the patient’s treatment or the registered medical practitioner providing the second opinion shall be a clinician with special training in child and adolescent mental health.”””” The noble Earl said: In speaking to Amendment No. 14, I shall speak also to Amendments Nos. 15 and 16, which are important amendments about electroconvulsive therapy. Amendment No. 16 relates to Section 62 of the 1983 Act, which covers urgent treatment and states that when it comes to urgent treatment that may be considered necessary for various specified reasons, the special treatment safeguards in Sections 57 and 58 do not apply. As far as ECT is concerned, this means that there is no need for a second medical opinion if the patient has refused consent or where he lacks capacity to consent. I want to suggest very strongly to the Minister that it is time to change that position. I believe that we should look at changing the whole basis on which ECT is administered, even when there is no emergency. ECT has been around for a long time, but there is no doubt that over the past few years medical opinion and attitudes in relation to it have changed. There is now a consensus view—which, incidentally, is reflected in the NICE guidance—that the wishes of the patient in relation to ECT should be of paramount importance and that valid and informed consent should be obtained before it is used. There is quite a spectrum of opinion about ECT. There are those who acknowledge that it has adverse side effects, but who believe that these are generally tolerable if the treatment is likely to prove effective. However, there are those who feel equally strongly that the side effects are quite simply unacceptable. The side effects can include brain damage, severe confusion and considerable cognitive impairment. These adverse effects can be long-term. Some patients find that ECT works for them. Others do not find it acceptable or therapeutic and can have very strong feelings against it; often, they can be terrified of it. The royal college is firmly against compulsion in ECT and has made the point that if a patient retains decision-making capacity, he or she cannot be sufficiently ill to warrant ECT without his or her consent on the grounds of it being a life-saving emergency. I believe that that point should weigh very heavily with us. Because ECT can have irreversible side effects on memory and cognition, it is possible to interpret Section 62 to mean that it should not be available as an urgent treatment except under Section 62(1)(a); that is, where it is, "““immediately necessary to save the patient’s life””." But there is uncertainty over this. The form of wording implies that a form of treatment is not in and of itself irreversible or hazardous, but that it might be either or both of those things in any individual case. That legal uncertainty is most unsatisfactory for patients, families and clinicians. Some people have argued that ECT may be given legitimately under all the provisions for urgent treatment in Section 62, not just in subsection (1)(a). However, there is now a very widely held view in the medical community that a treatment which is potentially hazardous and irreversible should not be given without a second opinion except in the most compelling circumstances; for instance where it is immediately necessary to save someone’s life. Further, if a patient has indicated in a valid advance directive that he or she objects to ECT, that express wish should be honoured. In circumstances where informed consent is not possible, for whatever reason, advance directives should be taken fully into account and the patient’s advocate or carer consulted. It is in any case not at all clear that ECT can ever be an immediately life-saving treatment in comparison with other treatment options. The British Psychological Society has expressed that view. Certainly it is highly unlikely that ECT would ever be the only treatment available for a patient. In fact, no direct evidence has been found to show either an increase or decrease in mortality in patients who have received it, and the evidence we do have suggests that even severe illnesses respond better to intensive nursing and medical care. So I believe we should now look at ECT with fresh eyes. Among clinicians it is controversial in terms of the balance between its effectiveness and its often serious adverse consequences. It excites extremes of antipathy among many patients as a process that is uniquely invasive and distressing. These considerations should encourage us to accept not only that the emergency use of ECT should be restricted to the narrowest of circumstances, but also that its use more generally should be limited by law. It is the firm view of the Royal College of Psychiatrists that it should never be administered to any patient without consent if the patient has capacity. That view was accepted in principle by the Government in the 2004 draft Bill. The technology appraisal published by NICE is equally clear about it. In Amendment No. 14 I am proposing that the Act should reflect what the Government and the professions are signed up to: that where a patient with capacity refuses ECT, it should not be given; and that where a patient is without capacity, it should be given only where the doctor, giving a second opinion, has expressed his opinion in writing that it is likely to have a clear therapeutic benefit. If we accept that these amendments are necessary and right in the case of adults, as I hope the Minister will, then we undoubtedly need to look carefully at the issue of ECT as it relates to children. In Amendment No. 15, I propose that in the case of any patient under the age of 18, ECT may be given only with their consent and after a second opinion. The consent would have to be that of the patient themselves where they were capable of giving it, or if they were not, then that of a parent or, if need be, the High Court. These proposals represent quite a considerable change from the current position. At the moment, children and young people can have ECT on parental consent alone. If there is no parental consent, or consent is refused, it can be administered against the young person’s wishes if a second opinion authorises it. I do not believe that this situation is any longer acceptable. Certainly it is true that ECT is used only rarely in this country on patients under 18, but that does not make the issue any the less serious. We know that the adolescent brain is still changing and developing in its structure. The guidance issued by NICE in 2003 states that the risks associated with ECT may be enhanced in children and young people and that particular caution should be exercised before it is administered to this group of patients. The draft Bill of 2004 would have introduced a tribunal or court authorisation of ECT for all patients aged under 16. What the amendment tries to do is to provide for a second opinion under the SOAD—second opinion appointed doctor—system, which goes some way towards matching that safeguard. It also requires that either the young person’s own doctor or the SOAD is a child and adolescent practitioner so as to ensure specialist involvement before ECT is given. I very much hope that the Government will respond positively to these amendments, and I beg to move.