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Mental Health Bill [HL]

My Lords, this has been an interesting debate, repeating much of the argument made in Committee. The amendments are asking practitioners, be they doctors or approved clinicians from other disciplines, to do what they ought to do as a matter of good practice. That is essentially why the Government do not think that this provision should be in the Bill. It is surely axiomatic that clinicians should listen to patients and take careful account of their wishes, preferences and experience. The clinician who does not recognise that—and that patients, even those who are seriously ill, are very often experts in their own health—are missing a big trick. The fact that patients may be liable to compulsory treatment under the Act in no way diminishes the importance of encouraging them to express their wishes and engage in designing their own treatment, nor the imperative to pay close attention to what they say. Treatment without consent does not, and must not, mean treatment without regard to the patient’s views. It is similarly fundamental that, where patients have made their views known in advance, those views should be treated with the same respect. That is not just a question of respect for patients’ dignity; it can also be a powerful tool for providing efficient and effective care. In Committee, the noble Baroness, Lady Murphy mentioned research on the effectiveness of joint crisis plans as a way of reducing compulsory admissions and treatment. It is likewise undeniably important that good records are kept of decisions and the basis on which they were made. In response to the point made by the noble Baroness, Lady Murphy, about the relationship with the ECT amendment, I understand that we have accepted the role of binding advance decisions in that context. However, these amendments are not about binding decisions, which is the difference. I am happy to write to the noble Baroness in more detail if she would welcome it. I know that the noble Earl, Lord Howe, did not like my argument that there are many other aspects of good professional practice that we would wish to be followed but which noble Lords are not seeking to put in the Bill, but it is a strong point. It is clear that the Act already contains plentiful requirements to keep proper records where decisions are taken that restrict patients’ freedom in the interests of their health or for the protection of others, which is why statutory forms have to be completed when patients are detained under Sections 2 and 3 and when renewing detention. It is why approved clinicians must certify a patient’s consent to medication under Section 58 or else obtain written approval from a SOAD. I accept that there is an argument about whether the issue in relation to treatment is worthy of being added to the list of statutory reports and forms. We need to have a balance. We cannot make everything a formal legal requirement, or else we will end up with mental health legislation of the kind that was feared at the turn of the century: a well intentioned but overburdensome legislative framework. I was interested in what the noble Lord, Lord Alderdice, said. For a moment, I thought that he was going to speak in my favour when he talked about the problem of the persistent patient who is constantly making demands on the practitioner. That would be one of the problems of having a bureaucratic demand in the Bill. I was interested in the noble Lord’s wide experience in Northern Ireland with the police, but I am not persuaded that professionals filling in countless requests would be a good use of their time. We are trying to get the balance of opportunity costs right. It is not entirely clear what such a provision would achieve in law. If it is merely a declaration of good practice, it is not for legislation but for the code. If it is for legislation, what is the sanction for failure to be? What is the sanction against the professional who does not keep these records? Would the noble Earl say that the effect of not filling in the form might be to render a patient’s detention unlawful? He needs to consider that because I do not think it is a good thing to do, but there is not much point in including this provision in the Bill unless the consequences are known. Noble Lords may be a little impatient with me when I say that the code exists to take the principles and legislative framework implicit in the 1983 Act and outline the practice that professionals need to operate it. We know that the statutory code of practice is very strong. I cannot for the life of me see why such provision is not appropriate for the code.