Mental Health Bill [HL]

My Lords, Amendments Nos. 56A and 58A relate to the authority for treating patients who are made subject to community treatment orders or returned to hospital under such an order. They would replace Clauses 28 and 29, which establish the Government’s proposals on these matters. My main concern about those proposals is illustrated by the professional slang that has started to be used to refer to second-opinion appointed doctors—commonly known as SOADs—in the context of their proposed role in relation to community patients. The new term is ““super-SOADs””, from which we can infer that we are talking about a SOAD with special powers. The special powers in question are indeed remarkable, and include the ability to see into the future. Under the Bill, at some point during an initial period of at least one month, a community patient will receive a visit from a SOAD. The SOAD will examine the patient and authorise whatever treatment he or she thinks is appropriate at the time according to criteria set out in the Act, but he will also be able to anticipate and authorise the treatments to be imposed on the patient should he or she be recalled to hospital. This, I suggest, is where the Bill requires a SOAD to be not only a psychiatrist but also a person with paranormal powers. In short, it anticipates that a SOAD, whose role should be to safeguard against unnecessary or unsafe compulsory treatment, will authorise the forced application of medication in circumstances that he or she cannot foresee at some unpredictable point in the future. The SOAD can have no way of anticipating the circumstances whereby a community patient might be recalled to hospital or what physical or indeed mental condition that patient would be in upon such a recall. A patient who has developed dangerous and possibly irreversible side-effects might have them worsened by the further imposition of medication on the authority of the SOAD. A patient with a heart condition might be killed by the imposition of medication authorised in good faith by the SOAD. Alternatively, the patient may have become pregnant, in which case some medications might be dangerous to her or her unborn child. The Minister may argue that I am ignoring the obvious fact that the responsible clinician or whoever is involved in actually giving the treatment to the recalled patient will of course have a duty of care and will not endanger their health or life recklessly in these ways. But if the only safeguard against a SOAD’s authorisation being used recklessly in a context other than that in which it was given is the professional judgment of the treating doctor, or even nurse, we have negated the point of the SOAD role. It is important to preserve the role of the SOAD in considering what treatment should be given on the basis of the actual presentation of the patient at the time of their examination. This is the protection that SOADs can offer patients. The Minister may also argue that SOADs already authorise some treatments in advance of their being given, which of course is true, particularly with medication that is authorised on a ‘prn’ or as-required basis; but they do so on the basis of the patient’s presentation and situation at the time of their visit, having examined the patient and consulted two other members of staff who have professional involvement with the patient’s care. The SOAD is not acting as if he or she can predict the future. I should make it clear that I have an interest as chairman of the Mental Health Act Commission, which is responsible for the administration of second opinions. One of the commission’s roles is to appoint and train SOADs, and this means that it must provide advice on second-opinion procedure. The Mental Health Act Commission will be likely to advise SOADs to be extremely cautious when considering whether or not to authorise treatments to be given in an unforeseeable situation at an unidentified point in the future. Indeed, even putting the issue in this way makes me wonder whether the discretion that the Bill allows SOADs in this respect will actually be taken up by this body of responsible psychiatrists. I have to say that I hope it will not. The Bill’s proposals for SOADs raise another ethical issue. According to the Bill and the draft code of practice, a SOAD who certifies that a community patient consents to treatment would also be enabled to certify what treatments can be imposed on the patient if he or she withdraws consent and is recalled to hospital. I realise that the possibility of coercion hangs over the heads of many psychiatric patients, but this truly is a sword of Damocles. At the very least it would appear to breach the principle underlying true consent as set out in the Mental Health Act code of practice, which at paragraph 15.13 states: "““Permission given under any unfair or undue pressure is not ‘consent’””." This brings me to my alternative model, set out in these amendments. The key difference between my model and the Bill is that any certification of the treatment of a community patient cannot authorise treatment upon recall. This means that the forcible imposition of treatment to a recalled community patient would find authority only in the urgent treatment provisions set out in Section 62 unless and until a further second opinion is requested to consider treatment in the new context of detention. The amendment would not extend the three-month rule. Under the Bill, the requirement for a certificate authorising treatment takes effect only after the CTO has been in place for at least one month, and may be longer. A patient discharged to a CTO during his three-month period as an in-patient would have to wait until all of the unspent part of the three months had run its course before having the safeguard of a second opinion. Indeed, when an in-patient’s three-month period is but a distant memory, if that patient is discharged on to a CTO he or she will be subject to a new one-month period where the safeguards over his or her treatment as an in-patient will be suspended. I think patients will perceive that to be simply unjust. My alternative proposal, where the three-month period still has some time left to run when the CTO is made, is to require certification no later than one month from the start of that order. Therefore, if the three-month period had expired within the first month, it would not be extended at all. If it were extended for more than one month from the start of the CTO, it would expire exactly one month from the start of that order. For in-patients whose three-month period has expired at the point when a community treatment order is made, I would require certification from the start of the order. Let us remember that drug treatment in the community is inherently less safe than such treatment under 24-hour medical care in hospital. We should be increasing the safeguards for community patients, not lessening them. To enable the certification from the start of CTOs, part of the preparation for discharging a patient on to a CTO would be for incapable patients to be visited by a SOAD, and for a capable patient to have a consent discussion with a clinician responsible for the treatment. It would be permissible to complete certificates prior to the patient’s discharge that would only take effect once they become a community patient. There is a precedent for that in the fact that all detained patients who are currently coming to the end of their three-month period will have Section 58 certificates completed for them, with such certificates taking effect only when the period has actually expired. Such an approach seems to be both more of a safeguard for patients and more practical for the administration of the SOAD system. One of the great unknowns in the Government’s proposals is how the second-opinion system might work with community-based patients. My proposals would allow for many SOAD visits in relation to the new powers to be undertaken before the patient ceases to be resident in hospital. At the very least, such a system would ensure that we knew where the patients were at the time when they were due to be examined by a SOAD. I have some concerns that under the Government’s proposals a great many clinicians would be faced with the dilemma of whether to recall a patient to hospital simply because they do not attend appointments to meet a SOAD. Nothing in my proposed arrangements contradicts my objections to SOADs anticipating patients recalling their authorisations. Certification, as a part of the discharge package, would of course take place where a patient’s situation and mental or physical state were quite apparent to the certifying doctor. My amendment would reduce the complexity of the Bill; it uses the existing framework of Section 58 as its basis. We have heard from the Minister many times during our debates about the limitations of an amending Bill, and that we are not writing new mental health legislation from scratch. In that spirit, I offer this amendment on the basis that it makes only the most necessary changes to the current statute to set out the effects of community treatment orders under Part 4 of the 1983 Act. My amendments, in contrast to the Bill’s provisions, would result in simpler and more practical arrangements for authorising treatment in these circumstances. Moreover, they would preserve the role of the SOAD, they would be safer for patients and more acceptable in ethical terms for the professionals who operate the Act. I hope the Minister will give them full consideration.