Mental Health Bill [HL]

My Lords, the amendment seeks to reduce from three months to 28 days the period for which a second-opinion appointed doctor must authorise the administering of medication when the patient does not consent or is incapable of consenting. We discussed the amendment in Committee. I said then that we believed the three-month period contained in Section 58 remains appropriate, and we have not been persuaded otherwise. Where treatment is provided for under compulsion, it is essential that there are patient safeguards in place. We have those. The Act provides for some treatments where safeguards come into play immediately the treatment is proposed. ECT is one such treatment. Amendments Nos. 30 and 31 provide that consent will in future be required of any patient capable of giving it before ECT can be administered. It is also the case that a person cannot receive compulsory medication for their mental disorder unless their detention is supported by two doctors and an application made by, in the vast majority of cases, an approved mental health practitioner. It is best if the certification for continuing with compulsory treatment be undertaken at a time when the efficacy of the proposed plan of treatments is understood. We do not depart from the argument I used in Committee. We should also consider the right time for the patient to be effectively involved in the process. The noble Earl, Lord Howe, referred to the recent report of the Joint Committee on Human Rights, which might be described as rather tentatively expressing or questioning whether the Government are meeting their obligations under Article 8. Obviously we will consider that report, but it is our view that the ECHR does not require us to have second opinions at all. In our view, when the courts have addressed these matters, they have not taken the view that the provision breaches Article 8 or that three months is too long a period. We have talked about Scotland a lot. The mental health legislation in force in Scotland prior to the current Scottish Act was essentially the same as our 1983 Act. In 2002, the Court of Session held it to provide adequate procedural safeguards in relation to the compulsory medication of patients within an initial three-month period and that it was not in contravention of Article 8. In addition, the High Court recently refused leave for a judicial review of the ECHR compatibility of Section 63 of the Act on the grounds that, inter alia, the three-month period is too long. Bringing forward from three months to 28 days the time allowed for the involvement of a SOAD in cases where a patient refuses or is incapable of consent is not a simple act. It is not a matter of providing the same service but earlier, as I said in Committee. I understand what noble Lords have said about medication, but I think a three-month period provides an opportunity for the treating psychiatrist to reflect on the medications he proposes to continue to administer to the patient. Of course there are medications whose particular efficacy with an individual patient can be determined within 28 days—there is no doubt about that—but that will not always be the case. It is already the case that when the SOAD is asked to certify a relatively recent prescribed treatment, the efficacy of such treatment may not yet be known. The situation can arise because the current medication is a change from earlier but less effective medication, or because a patient is to be treated with a different type of medication addressing a different aspect of the patient’s condition. The shorter the period for involving a SOAD, the more likely it is that those circumstances will apply. That is likely to be a regular aspect of providing certificates at 28 days. It could be routine that there would be insufficient evidence for the SOAD to certify with confidence that the proposed medication is the correct plan of treatment for the longer term, either because 28 days is not a long enough period for treatment with that particular medication or because the proposed medication has only recently been prescribed. The amendment would see many more instances where SOADs would set shorter periods for their certificate, requiring earlier review periods and follow-up SOAD visits. I do not see any value to patients in having a follow-up visit from a SOAD simply because the first visit took place too early in their treatment plan. Not all patients will welcome the visit of the SOAD. I want to cover the issue raised by the noble Lord, Lord Patel, about our debate in Committee on the implications of this change for demands for SOADs and therefore on the psychiatric profession. It also concerns a point raised by the noble Lord, Lord Ramsbotham, in our earlier debate about the cost of this legislation. This is very relevant to that debate. Current practice is that the second-opinion doctor appointed by the MHAC has at least five years’ experience as a consultant psychiatrist. In 2005-06, 251 consultant psychiatrists were approved by the MHAC and made themselves available to be appointed to give second opinions as required by the Act. Obviously, that role is ancillary to their usual role as consultant psychiatrists, often with very busy caseloads of their own. I gave an initial estimate to the noble Baroness, Lady Murphy, on this, that a reduction to 28 days would result in further increases on consultant psychiatric time to the tune of approximately 20,000 hours in any one-year period. I say to the noble Lord, Lord Patel, that it is not as much about the cost as the opportunity cost, in the sense of the time spent by psychiatrists and whether it is better spent acting as SOADs or providing direct psychiatric care. Clearly, that is a matter of judgment, but I ask the noble Lord to accept that my doubts about reducing the period from three months to 28 days are not based on a crude worry about the cost. However, I refer the noble Lord to the debates when I read the Statement about our first efforts to introduce legislation a long time ago. One of the great criticisms made of the original proposals was that many practitioners would be tied up in the statutory safeguards that were to be put in place. One cannot simply ignore the consequences of reducing the period from three months to 28 days. It is also worth pointing out to noble Lords that we already have the power in the legislation; there is a regulating power to change the period of days. Given that this is amending legislation, that seems to be a perfectly satisfactory position for primary care legislation to have. It says it is three months, and there is the opportunity, if the time comes and if it is felt appropriate, to reduce that period. The Government strongly resist the amendment.