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Mental Health Bill [Lords]

I should particularly like to speak to new clause 13, but I shall also discuss new clause 14 and amendments Nos. 96, 92 and 98, which basically address the question of consent to treatment, particularly on the part of community patients. New clause 13 would provide simpler but safer provision for community patients who are not recalled to hospital, particularly when it comes to providing for a second opinion authorising doctor to examine a community patient in the same set of circumstances as a patient who is detained. In other words, we would like parity, because there are clear parallels between the two sets of patients. New clause 14 seeks a second opinion in respect of those who may be covered by the Mental Capacity Act 2005, but who none the less require treatment. The effect of the amendments is to require a SOAD to examine a community patient. The question is one of considering what happens to patients who are detained in a hospital, and of trying to implement legislation that will give parity to those outside hospital—and, in the context of this group of amendments, to those who are on community treatment orders. At the moment, under section 58 of the Mental Health Act 1983, a detained in-patient who has already been on medication for three months—we have had some discussion about whether the period should be three months—faces one of two situations. If the patient has capacity to consent to the medication, and does consent, as confirmed by the responsible clinician, the responsible clinician specifies the medication on statutory form 2. If patients lack capacity to consent to medication or if they retain capacity but refuse it while they are in-patients, the responsible clinician must require a SOAD. The SOAD reads the patient’s medical records, examines them, interviews a nurse and another professional who is neither a doctor nor nurse but is involved with the patient’s care, discusses the case with the responsible clinician, then authorises what medication may be given, including details about whether or not it may be given by injection or only by mouth, assuming that an injectable form of medication is made. Details are given on the statutory certificate issued by the SOAD, so there is careful clinical assessment by someone with a specific medical background. The SOAD assesses the patient’s mental state, decides if they retain capacity, listens to their objections, if any, to any of the medication, takes note of the patient’s past history and response to medication, including adverse effects, notes the patient’s physical health—something that we have discussed a great deal in our debates on the legislation—and explores, particularly with the other professionals, whether there are other non-medication interventions that are more appropriate or whether there is a reasonable alternative. All patients on a community treatment order, after the relevant time of three or four months, see a SOAD, who undertakes the same assessments, examinations and interviews as those for in-patients, but because the patient agrees to the treatment, it is self-evident that the SOAD cannot explore the reason why the patient is refusing and whether that is reasonable. The SOAD will issue a certificate authorising both the medication that can be given only with the patient’s capacitous consent and medication that can be given should the patient lose capacity or refuse the original medication in future. We raised that problem in Committee. The Minister rejected our proposal, but there was quite of a lot of discussion of the need to write the certificate and what might follow under a certain set of circumstances several weeks or even months down the track. The SOAD must issue the certificate, despite having no knowledge, nor being able to assess why, for example, the patient has suddenly become incapacitous or, while retaining capacity, has decided to refuse medication that they previously accepted. One must assume that patients on a community treatment order, as opposed to those who remain, or are detained as, in-patients, at the point at which the CTO is discussed, will agree to the treatment and suggested programme of intervention, which would be conditional on their having a CTO. All too often, however, things go wrong, so when something significant changes it is important to have a professional judgment by a clinician that is based on the facts, and that is what is at the heart of our proposals. The new clause gives CTO patients exactly the same rights and safeguards as patients detained in hospital. Patients who are capacitous and consenting would have their treatment authorised by the responsible clinician. Patients who lack capacity, or who refuse treatment, would have the safeguard of the requirement for a SOAD authorisation based on an examination and assessments at the time the decision needed to be made, not based on a piece of certification ordered previously, which could be many months out of date. Safeguards for necessary and emergency treatments are included by amending section 62 of the Mental Health Act 1983 to ensure that patients do not suffer as a result of having to wait for a SOAD assessment. The Minister should consider that seriously. In Committee, we did not have enough time to go into the disparity between the appropriate treatment for in-patients compared with the treatment for people on a CTO. The CTO is proposed as an alternative for patients who hitherto would have been considered for in-patient treatment, so it is right that there should be parity in the way in which their conditions are clinically addressed, particularly after a significant change of circumstances or after a given period after the CTO is made, and there is a need for reassessment by a clinician. I therefore hope that the Minister will look favourably at the proposal, as she often does when such cases are put to her, perhaps with a little more detail and time than we had in Committee. She has generously tabled amendments on Report—not, I accept, across the board, and I would have preferred many more to be tabled—on issues where she believes that fairness and parity should prevail for patients, as they should be treated equitably. That is what is at the heart of our proposals in this group of amendments.