Mental Health Bill [HL]

My Lords, like the noble Baroness I very much welcome the government amendments, so it will seem rather churlish of me to complain that they do not go far enough—but I am afraid I do. On the issue of urgent treatment, in Committee I raised some questions of interpretation over Section 62, which sets out the circumstances under which urgent treatment may be administered. This is defined as treatment which is, "““immediately necessary to save the patient's life; or.. which (not being irreversible) is immediately necessary to prevent a serious deterioration of his condition; or… which (not being irreversible or hazardous) is immediately necessary to alleviate serious suffering by the patient; or… which (not being irreversible or hazardous) is immediately necessary and represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to himself or to others””." With regard to ECT, I ask the Minister to clarify the way in which this section should be read, bearing in mind that it is known that for some patients ECT is not only hazardous but can also result in irreversible side effects. I put it to him that the legal uncertainty over whether ECT is permissible as urgent treatment when the patient’s life was not at risk was most unsatisfactory. It is perhaps helpful to put part of the Minister’s reply to me on record. He wrote to me to say: "““Whilst I accept that there is some research that concludes that, for some people, their treatment with ECT has resulted in irreversible physical, cognitive and/or psychological side effects, there is no established consensus in psychiatry that this will happen—or is even likely to happen—with all patients or in all the circumstances that ECT is provided. For any given patient, a clinician could conclude that the patient’s treatment with ECT was not likely to have unfavourable irreversible physical or psychological consequences, and would not entail a significant physical hazard to the patient. Therefore the Government is of the view that it is possible if the right clinical conditions apply for the approved clinician in charge of the treatment of a patient subject to detention to treat that patient with ECT under the circumstances described at Section 62(1)(a), (b), (c) or (d)””." While I was most grateful for that reply, I really do not understand it. Certainly the Minister is right to say that some patients benefit from ECT and do not suffer unacceptable adverse side effects as a result of it, but he will know that there is now a widely held consensus of views within the medical community about ECT that it is per se potentially hazardous and capable of having irreversible side effects. The point is that you cannot tell in advance which patient is likely to suffer unacceptable damage. You can make that assessment only ex post facto—at least, in most cases. Therefore, if it is true that as a general proposition ECT is now regarded as an inherently hazardous form of treatment, I do not see how it is possible for the Government to be comfortable in asserting the view that they have about the interpretation of Section 62. It is in any event a worrying interpretation. Urgent treatment is authorised under Section 62 without the need for a second medical opinion, if a patient has refused consent, or when he lacks capacity to consent. I believe that this is one clear instance in which we in Parliament have to listen hard to what the clinicians are telling us. The noble Baroness, Lady Murphy, is one, and she has repeated what she said in Committee, that she, "““cannot envisage a scenario where a fully capacitated patient who was able to consent would fall into the need for urgent treatment””.—[Official Report, 15/1/07; col. 475.]" That view reflects the consensus of medical opinion to which I referred. We need to remember, too, that ECT will hardly ever be the only emergency treatment available for a patient. In comparison with other treatment options and knowing what we do about it, it is really very difficult to imagine how it could ever be the emergency treatment of choice, especially in circumstances in which a patient’s life was not actually at risk. Therefore, I urge the Minister to look at this issue again. In Amendments Nos. 30 and 31, the Government have implicitly accepted the case made in Committee about ECT—that it represents a uniquely invasive and distressing form of treatment. That acceptance now needs to be carried over into the provisions relating to urgent treatment. I should like to add a couple of points of emphasis to what the noble Baroness said about ECT and children. I fully support Amendment No. 15. I believe that a unanimous view was expressed in Committee on this issue. Although ECT is rarely used on those under 18, it represents a particularly hazardous form of treatment for that age group. We now know that the adolescent brain is still changing and developing in its structure. Synaptic pruning, which is believed to be essential for fine tuning of the functional networks of the brain, takes place throughout adolescence, as do changes to the frontal cortex, which are essential for such functions as response inhibition, emotional regulation, analysing problems and planning. NICE’s guidance on ECT almost certainly had these findings in mind in stating that the risks associated with ECT may be enhanced in children and young people. It is worth pointing out that the amendment does not say that ECT should never be used on children or young persons. It allows for the kind of exceptional situation which many speakers in Committee acknowledged needed to be allowed for, when ECT may be deemed appropriate. But it would put in place what I and others believe are appropriate safeguards for this particularly vulnerable group of mental health patients, whether or not they are detained formally. I hope that the Minister will agree to think again about this.