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Mental Health Bill [HL]

It is entirely understandable that there should have been a debate about ECT which reflects both historic concerns about its previous extensive use—and, in many cases, poor clinical practice—as well as more modern approaches where ECT may be used. Clearly there are differing views about the use of ECT, some very hard-felt, and it is absolutely right that we should reflect on them. Equally there is evidence that ECT can be effective in certain circumstances in the treatment of some psychiatric conditions, such as depression, schizophrenia, catatonia and mania. It is a treatment that I understand to be especially useful in dealing with severe depression, in particular where other treatments such as medication may not be ideal. We have to establish the appropriate balance between ensuring that treatments that may be effective are available for the benefit of patients and ensuring that sufficient safeguards are in place. These amendments would place new restrictions on the use of ECT. They would stop clinicians administering ECT to patients detained under the Act who have the capacity to consent to it but who do not consent, even in emergency cases. In other words, the potential effect of the amendments is to take away from clinicians a way of saving a person’s life in certain circumstances, preventing their condition from seriously deteriorating, alleviating serious suffering or stopping them behaving in a violent or dangerous manner unless or until the patient loses capacity to consent to ECT. I noted what the noble Earl, Lord Howe, said about the interpretation of Section 62 and I will reflect on that. Perhaps he would find it helpful if I wrote to him to clarify the points that he raised. Amendment No. 16 would allow for detained patients who lack capacity to consent to ECT to be given ECT, without a second opinion, only where it is immediately necessary to save lives. I am advised that there may be a problem with that in the case of a patient who is taking no sustenance because of their severely depressed state and is at risk of starving as a result. In those circumstances the doctor cannot act to prevent any deterioration in the patient’s condition but must wait until the patient is at death’s door. On that basis I am advised that there may be circumstances where ECT would be the only appropriate treatment for some patients. Amendment No. 14 further provides that no child or young person under 18 may be given ECT if they are capable of consenting to it and do not. If they lack capacity to consent to it then, unless it is immediately necessary to save their life, they may be given ECT only with the approval of a person with parental responsibility or if the High Court decides it should be given. Even where the patient or the parent consents, the treatment must still be approved by a second-opinion appointed doctor (SOAD). Either the SOAD or the doctor in charge of the ECT would have to be a child and adolescent practitioner. Before I go on to discuss the issue of parents providing consent to treatment with ECT, I want to note that, by amending Section 56, Amendment No. 15 will make those provisions apply to all patients under 18, regardless of whether they are detained under the Act. Clause 27(2) would otherwise replace the current wording of Section 56 and so leave the current amendment addressing the wrong text. Members of the Committee have signalled their intention to oppose the Question whether Clause 27 shall stand part of the Bill. I mention that in case any noble Lords might have been struggling with two different versions of Section 56. It is clearly of great importance that, where ECT is used for children and young people, there are sufficient safeguards. I have listened to noble Lords’ comments on that. As they have said, ECT is given very rarely to children. When it is used, it is almost always given to older children—those aged 14 or older. Of course the Government understand the concerns expressed about the use of ECT for children, but as the noble Baroness, Lady Murphy, said, there may be a few cases where it can be of real benefit, often life-saving. That was the view of the Royal College of Psychiatrists in evidence to the Joint Committee examining the 2004 draft Bill. It is already the case that a child patient who is subject to the Mental Health Act can be treated with ECT in non-urgent circumstances, without a second opinion, only if he is capable of consent and does consent. There is no provision, if the child either cannot or does not consent, for a person with parental responsibility to consent on his behalf. Instead Section 58(3)(b) requires a SOAD to certify that ECT should be given. For children who are not detained but are in hospital as informal patients, the Government have thought it right to enable under-18s who are capable of consenting to ECT to do so without the need for a statutory second opinion. That is on the basis of those young adults having the ability to make their own judgment and therefore consent to such treatment. Having a statutory second opinion would mean being interviewed and examined by a second doctor whom they probably do not know. Having listened to the arguments put forward by noble Lords, I am very willing to go back and look at the safeguards for children. I cannot give a commitment that I will come forward with a sympathetic response but I would like to take some time to make sure that we have got this right. I have listened to noble Lords in relation to the safeguards. I do not know the extent to which they would also accept that there is an issue of young people who are competent to make their own decisions. I wish to examine that balance, but I will come back with a response on Report. Let me turn to the other question regarding consent. We come back to ECT and its value and uses. Many oppose ECT. We are aware that some psychiatrists believe that ECT risks having a long-term or permanent effect on the faculties of patients, but our view is that there is no consensus on that point. We acknowledge that the Royal College of Psychiatrists supports prohibiting the giving of ECT to a patient who can consent but refuses to do so. A number of noble Lords have referred to the NICE guidance in this area, which recommends: "““Someone who is mentally capable of making a decision about their treatment should decide, after discussion with the doctor, whether or not they want to give their consent to have ECT””." While some psychiatrists do not treat such patients with ECT, many do. In 2003 and 2004 the Mental Health Act Commission reported 1,385 requests for second opinion appointed doctors to issue certificates approving ECT where the patient refused consent. The noble Lord has already referred to that. We accept that there are aspects of ECT treatment which set it apart from other forms of treatment. That is why the Act already provides the safeguard of a second opinion for detained patients who either cannot or do not consent to it. We are concerned that the tenor of the amendments is to treat ECT as if it were barely a legitimate therapeutic treatment at all. That might unduly limit the options not only for clinicians, but also for patients. Some patients welcome ECT, whether because they think of it as a genuine last resort or because they prefer it to medication. These amendments would deny those patients what they would have chosen for themselves just because they happen to lack capacity at the time in question. Given that we are talking about situations of immediate necessity, it is to be expected that very many patients will lack capacity. We see a problem of clinicians not being able to respond with ECT to crises, even if patients have made it plain, in some form of advance statement, that ECT is perhaps what they would want should their condition begin to deteriorate markedly. Even in the case of patients who retain capacity to consent, we think that these amendments may well go too far. We are talking about patients who are detained against their will in a framework of legislation which, as the Committee will know, we believe should be based on needs and risks, not on the patient’s decision-making ability. We worry that these amendments might sometimes force clinicians to work with one hand tied behind their back at the very moments of crises when they most need to be free to respond with the treatment that their clinical judgment tells them is best. These amendments would mean that detained patients could not be given ECT even where it was an immediate necessity, if they have the capacity to consent but do not. They would limit immediately necessary ECT without a second opinion for other detained patients only in life-saving situations. That would impose a significant new restriction on what may be done under the Act to respond to emergencies. That is what makes us cautious. However, I am conscious that in the 2004 draft Bill we were going to give detained patients the right to refuse ECT where they had the capacity to do so and provided it was not an emergency. In the light of that—