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Mental Health Bill [HL]

moved Amendment No. 80B: 80B: Schedule 6 , page 107, line 31, at end insert— ““Duty to provide a second opinion for serious medical treatment (1) This paragraph applies to a person (P) who is deprived of liberty in accordance with this Schedule if an NHS body is proposing to provide, or secure the provision of, serious medical treatment within section 37(6) to him. (2) P shall not be given the treatment unless a registered medical practitioner (other than the medical practitioner in charge of the care of the patient) has certified in writing that the patient is not capable of understanding the nature, purpose and likely effects of that treatment but that it is in the best interests of the patient in accordance with this Act that the treatment be given. (3) Before giving a certificate under sub-paragraph (2), the registered 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 be neither a nurse nor a registered medical practitioner.”” The noble Baroness said: My Lords, I return to a matter that we discussed in Committee: the proposed duty to provide a second-opinion doctor where someone who has been deprived of their liberty, subject to the Bournewood provisions, requires serious medical treatment. We discussed that matter at some length and talked about the sort of treatment it could apply to, such as ECT, therapeutic sterilisation or artificial nutrition and hydration. A significant percentage of people covered by these proposals are patients who would meet the criteria for detention under the Mental Health Act but for their compliance with the treatment proposed for them,or, in some cases, because they are unaware of the treatment being administered to them. Many of the others will be receiving medication and treatment for medical or physical conditions, or both. Under the Mental Health Act there is a statutory second medical opinion procedure for medication beyond three months—the same applies for ECT—and this is an attempt to replicate that safeguard. The Government have said that, under the Mental Capacity Act, an unbefriended person has the right to an independent mental capacity advocate who can request a second medical opinion to help them to decide whether the treatment is in the person’s best interests. I accept that that is a valuable safeguard. However, this amendment would serve a different function. It is not about supporting the patient and ensuring that what is proposed happens; rather, it provides scrutiny of the medical decision and prior authorisation of the treatment by someone qualified to give it. The report by the Joint Committee on Human Rights on the Mental Health Bill identified an omission of something in this area that would have promoted or enhanced human rights. It argues for, "““effective supervision and review of decisions to give treatment without consent for mental disorder””," where that, "““involves psychotropic medication or other significant interferences with physical integrity””," such as ECT. Apart from the appointment of an IMCA, the checks in the Mental Capacity Act are retrospective. The committee considered that ““effective supervision and review”” required more than common law and the provisions in the Mental Capacity Act. The committee recommended that that be remedied through a second-opinion system or a visiting inspectoral body, such as the Mental Health Act Commission. We discussed this in Committee, when the noble Baroness did not agree with me that there was a need for a second-opinion appointed doctor. She felt that it would be too great an imposition. She cited cases where people had need for heart surgery or other treatment. I should make it clear that this does not apply to emergency situations, although it is about serious treatment. I doubt whether an IMCA would have the technical knowledge on which to decide whether the information they were given by a doctor was correct. That is the point of difference between us, and it is why I return to this amendment. I beg to move.