Mental Health Bill [HL]

moved Amendment No. 17: 17: After Clause 8, insert the following new Clause— ““Patients’ wishes and requests for treatment (1) The 1983 Act is amended as follows. (2) After subsection (4) of section 58 (treatment requiring consent or a second opinion), insert— ““(4B) When deciding what treatment to give, the approved clinician in charge of the treatment shall have regard to the wishes of the patient, whether expressed directly or in an advance statement, and shall record any treatments requested by the patient in the patient’s medical record, and if that treatment is not given shall record the reasons for this.”” (3) In section 63 (treatment not requiring consent), at the end, insert— ““(2) When deciding what treatment to give, the approved clinician in charge of the treatment shall have regard to the wishes of the patient, whether expressed directly or in an advance statement, and shall record any treatments requested by the patient in the patient’s medical record, and if that treatment is not given shall record the reasons for this.”””” The noble Earl said: My Lords, I return, without apology, to an issue that we debated in Committee which I and many others felt was left unresolved—that is, the importance of ensuring that clinicians who prescribe treatment have regard to patients’ wishes. There is nothing in the 1983 Act about this matter but it is terribly important. Putting a duty of this kind into the Act would achieve three main benefits; it would undoubtedly improve a patient’s autonomy and feelings of autonomy; it would increase the chances of consensual treatment and thereby avoid unnecessary compulsion; and it would improve patient safety because it is the patient himself who will often know what has previously harmed or helped him. In the latter context, it could even be life-saving. The Minister rejected a very similar amendment in Committee. He said that he felt this was a matter best dealt with in the code of practice. Perhaps I may say why I believe that he should reconsider that view. A decision to invoke involuntary treatment is a most serious step because of the interference with the patient’s physical integrity that is involved in the process of compulsion. Having regard to the patient’s wishes is not simply one aspect of practice among many; it is a core principle that informs practice. It is precisely because the Act is concerned with the legal processes that allow compulsion that this principle needs to be stated in the legislation. Stating a duty to abide by this principle, with specific reference to decisions about treatment, will focus attention on patient participation at a time in what is a very critical process when the patient’s views can all too easily be disregarded. The current code of practice already states that the whole care programme should be discussed with the patient, and it sets out various duties about seeking consent and providing information to the patient. But we know from the most recent biennial report from the Mental Health Act Commission that there are all sorts of problems with the administration of Part IV of the Act. Discussions with the patient about proposed treatments are not recorded. Patients tell commissioners that they are not happy taking their medication even though there is a form 38 certifying their informed consent. Yes, this is a matter of good practice and better training, but where is the impetus for that to come from? It needs to come, I believe, from a duty in law to have regard to patients’ wishes. The amendment would also require the clinicianto record any treatments requested by the patient and to record the reasons if the treatment is not given. Up to now the Government have rejected this idea as being too bureaucratic. I look at it the other way. A duty of this sort is clearly tied into the decision-making process for what treatment is to be given, and to include in a patient’s notes a reference to the treatments he requests is not burdensome. Indeed, it could be seen as the least that would be expected, especially where the clinician responsible for particular treatments is not the same as the clinician with overall responsibility for the patent’s case. Often when a treatment is requested by the patient there will be good reasons why it cannot be given. It may not be clinically recommended. It may not be possible to provide it. If so, that information ought to be available for future reference whether to the patient or other people authorised to access the patient’s record. Of course, the duty set out in the amendment would not define the limits of the whole process of patient participation, nor would it prevent clinicians from enabling participation in a range of ways appropriate to the patient and the circumstances. However, it would give patients a modest but significant right to assert their wishes in the knowledge that these must be noted, and that any refusal must be a reasoned refusal. In an otherwise powerless position of being compulsorily sectioned, the opportunity for the patient to influence decisions is a very important one. It is that powerlessness at a time of mental health crisis that patients often talk about. The amendment would guarantee a worthwhile degree of patient autonomy, with all the benefits that I mentioned earlier. I hope that the Minister will be prepared to have another look at this issue. I beg to move.