Mental Health Bill [HL]

I congratulate the noble Baroness, Lady Knight, on taking the opportunity to bring before us what are clearly very important matters. She has waited patiently for two days. I am sure that she thought she might be moving the amendment on the first day, but we have all waited with anticipation. I was very concerned about what she had to say. I was also very concerned about some of the other remarks made by noble Lords about vulnerable people fearing to go into hospital for fear of what may happen to them in a number of ways. As a number of noble Lords have anticipated, I do not think that amendments to this Bill or to other Bills are the way forward. I clearly understand the need for us to ensure that the health service is absolutely clear about the principles under which food and drink should be given, and that there should be no doubt whatever by the health service about that. I shall describe later how I think that might best be done. I particularly would like to underpin the comments of the noble Baroness, Lady Finlay. These are often very difficult clinical decisions that have to be made by doctors. I also think that we have to be understanding about some of the issues they have to consider when considering the patient’s best interests. I start by saying quite clearly that I completely agree with the noble Baroness that food and water, however delivered, should never be withheld if it is in the best interests of the person to receive it, and that the offer of food and water by mouth should always be provided. I also say that assessments of an individual’s best interests must be at the centre of decision-making on behalf of people who lack capacity to make decisions. That is true now, and it will be strengthened by the Mental Capacity Act when it comes into force later this year. It is, therefore, the person’s best interests that we have to consider when considering these amendments. A best interest assessment about treatment entails a thorough assessment of someone’s condition, their prospects of recovery, the pain they are suffering and any burdens associated with available treatments, including invasion of bodily integrity and interference with human dignity. Let us be quite clear here: it will not always be in someone’s best interests to have every available medical means of delivering nutrition and hydration imposed on them. I would like to follow up the comments made by the noble Baroness, Lady Finlay, in that regard. Where a patient cannot swallow, water can be provided by intravenous drip, but food can only be delivered by a tube down the nose or surgically inserted into the abdomen. That must surely be a medical intervention. Doctors and families will need to decide whether such treatment is in all the circumstances in the best interests of the patient. In doing so, they must have regard to what they know about the patient’s own wishes. I understand that there are risks associated with artificial nutrition and hydration, as with any significant intervention. My understanding is that there is an infection risk. A fluid balance must be monitored to avoid waterlogging. Regular blood tests are needed to monitor the kidneys. It is common to have to manage diarrhoea and regurgitation. Nausea and vomiting may result in certain clinical risks. There are circumstances where the provision of artificial nutrition and hydration might do more harm than good. For example, if the patient can no longer absorb food and water because their digestive system has broken down, it might be better to refrain from tube-feeding and instead continue to give good mouth care, sips of water and palliative care. My understanding is that the wording of the amendment might mean that artificial nutrition and hydration had to be continued in these situations. These will never be easy decisions to make. The Mental Capacity Act recognises that they depend on what is best for a person; it recognises that proper care and treatment should be given and not wrongly withdrawn. The intention behind the amendments and some of the speeches made today might be to remove choice or flexibility in these sensitive and very personal matters. The noble Baroness, Lady Finlay, gave the example of a patient who desperately wanted a cup of tea, and said that in a risk-averse culture many practitioners might have been reluctant to give that patient a cup of tea. I understand that, but the noble Baroness also illustrated the reason why clinicians must have discretion in dealing with those issues, and why it is very difficult to describe in legislation how you would deal with such a situation. That is why some of the concerns raised today seem to be much more a matter of malpractice and negligence, rather than what is contained in the legislation. As the noble Baroness, Lady Barker, pointed out on Report in the Mental Capacity Bill, there is a world of difference between bad practice—which is inexcusable and in no way permitted by that Act—and the deliberate withdrawal of a patient’s treatment in that patient’s best interest. The noble Baroness, Lady Knight, made some very serious allegations; she referred to patients being starved to death. I have great admiration for the noble Baroness; she was of great help to me when I was director of the National Association of Health Authorities, based in her constituency. I am very concerned to follow up any incidents that she knows of, and am happy to meet her to discuss them. She has raised matters of clear and evident concern. The noble Baroness also talked about problems in feeding patients in the health service more generally. She raised the issue of bedblocking—a term I deplore. The duty of the health service is to give proper care and treatment to patients. It may often be the case that in order to prevent patients becoming institutionalised, and to enable them to go home or into other settings where they could be as independent as possible, various approaches need to be taken to enable people to get up and about as soon as possible. The term ““bedblocking”” and its connotation is something that I cannot accept in any circumstance. I have taken on ministerial responsibility for food, so I fully understand the challenge. In recent years the health service has sought to improve the quality of food and to deal with the issue of how patients are given food on the hospital ward. The concept of modern matrons was partly developed to deal with those issues to ensure that the nurse in charge of a ward had responsibility and authority. I will do everything that I can to ensure that that message is reinforced by the Chief Nursing Officer in regular communications with nurses. Several noble Lords, especially the noble Lord, Lord Carlile, and the noble Baroness, Lady Finlay, asked me: if legislation is not the route, what assurance can I give that the matter is taken seriously? We have asked the health and social care inspectorates, including the Healthcare Commission—the bodies responsible for ensuring that proper standards are provided in NHS facilities and in social care establishments and services—to put older people's dignity at the centre of their investigations. I understand that those regulators plan to take greater account of how older people are treated, including whether they are given the help that they need to eat or drink. However, I accept that in the light of this afternoon's debate, I need to ensure that the messages given today are heard by those regulators loud and clear. I will do just that. Picking up the comment made by the noble Baroness, Lady Finlay, if there is doubt among medical professions about some of those important matters, I am happy to institute discussions with the professions to see whether more guidance is required. A number of other points were raised. I think that it is the first time that the noble Lord, Lord Patten, and I have debated across the floor of a chamber since about 1977, but it was good to hear his intervention. My understanding is that the orange cards would be considered as a statement of the wishes of a patient under Section 4 of the Mental Capacity Act and should be considered as part of a best interests decision, but they do not represent a legal proposition that must be absolutely accorded with. The noble Lord asked me about the UN convention. I answered an Oral Question in your Lordships' House as a DWP Minister a few weeks ago on that. Of course, the UK took a prominent role in developing the convention—both itself and as part of the EU negotiating team. When I answered the Question a few weeks ago, my understanding was that the implications of that for current legislation were being considered across Whitehall. I will send the noble Lord a note telling him where we have got to. There should be no doubt that we as a Government have very much supported the work in the UN to produce such a charter.