Mental Health Bill [HL]

This has been an interesting debate. I know that the House discussed these issues at length when we considered the Mental Capacity Bill, now the Mental Capacity Act 2005. That Act put advance decisions on a statutory footing and provided for any person to say in advance that they want to refuse treatment if they lose capacity to make such decisions in the future. A valid and applicable advance decision to refuse treatment has the same force as one made by a person with capacity and must be followed. The Mental Capacity Act provides that these advance decisions do not apply where the person is subject to Part 4 of the Mental Health Act, nor the new Part 4(A) provided for in the Bill. That is because the Mental Health Act provides for circumstances in which a patient with a mental disorder can be treated without consent in order to protect themselves or others. Of course we believe in the importance of taking account of a patient’s wishes as fully as possible, including those expressed in advance. I assure the House that we will give guidance to practitioners in the code of practice on giving those views due consideration whenever decisions about the care and treatment of the patient are made. I have noted the comments of the noble Baroness, Lady Barker, about the code of practice. I will look into those matters and come back to her. It is in the nature of this legislation that compulsion is provided for, precisely because the patient may not wish to have the treatment that he needs. Clearly, compulsion is no light matter. We have many safeguards in place. Good clinical practice demands, wherever possible, that treatment is provided under this Act with the consent of and in accordance with the wishes of the patient. Clearly, the more that a patient is engaged with and contributes to the process by which decisions are made, the better are the outcomes for him. Briefly, I shall outline a number of scenarios in which we do not think that the amendment would work, but where we believe that professionals should consider past expressed wishes. A past wish is not always relevant only where the patient has lost capacity, but it is not clear in the amendment that it is intended that an advance decision is only ever applicable where the patient lacks capacity. A patient may choose not to discuss a matter with a mental health professional for a variety of reasons, or it may not be appropriate to have a discussion when it is needed. For example, the patient may be particularly agitated and discussing the type of treatment that they urgently need may only increase their agitation in a way that the professional judges unacceptable. In managing that situation, we would want professionals to consider what they know about the patient’s views and any relevant past discussions that they have had. That is good practice. We think that that is best addressed in guidance. We do not want professionals to consider that they need only take patient’s past views into account where they now lack capacity. Even when professionals are having contemporaneous discussions with a patient, we would expect them also to consider what the patient had said or written in the past and raise that in their consultation as appropriate. A patient may appreciate being reminded of what they have said in the past—or indeed what had happened in the past, such as a particular response to a treatment—when considering what they want to happen in future. Where a decision is made that is contrary to the wishes of the patient, we would expect it to be recorded—whether it was not in accordance with the patient’s wishes as expressed at the time or, where no such consultation could take place, if it went against the patient’s past expressed views. We consider that good practice We all agree that advance wishes are important in determining the best treatment for a patient, stressing that importance in guidance, but the amendment is not the right way to do that. There are legitimate reasons why the advance decisions in the Mental Capacity Act do not apply where the person is subject to Part 4 of the Mental Health Act. The circumstances under the Mental Health Act in which a patient with a mental disorder can be treated without consent to protect them or others form a very distinct set of circumstances.