Mental Health Bill [HL]

As I have previously declared, I am chairman of the Mental Health Act Commission and as such I have an interest in all the debates concerning this Bill. I wholeheartedly support the part of the amendment that seeks to ensure more effective safeguards in the use of electro-convulsive therapy for under 18s, and I support the noble Lords who tabled it. However, I have a number of questions, on which the Committee might wish to reflect, about an across-the-board introduction of a mental capacity test, as suggested by the first part of Amendment No.14. I begin by drawing the Committee’s attention to the Mental Health Act Commission's concerns over the Government's previous proposal, in their draft Mental Health Bill of 2004, that ECT should not, except in an emergency, be given to patients deemed capable of refusing consent. The commission's data on second-opinion authorisations of ECT showed that in 2002-03, ECT was authorised by a second-opinion, appointed doctor in the face of a patient's capable refusal of consent on 834 occasions. That amounts to 40 per cent of all the second-opinion doctors' authorisations of ECT in that year. The Mental Health Act Commission asked the Joint Committee that was considering that Bill, and in its biennial report to Parliament: what would be likely to happen to this proportion of patients who receive treatment under the present legal framework if the proposed change to that framework were made? The possibilities seem to be that such patients would simply no longer receive ECT, they would receive it under emergency powers, or the assessment of their capacity would change and they would be found to be incapacitated. The MHAC suggested that the first possibility—that this cohort of patients would simply no longer receive ECT treatment—was the least likely, given that the second-opinion system had already determined that such treatment should be given according to the tests of medical necessity established in case law. It seemed more likely that the second and third possibilities would occur: that we would see a rise in the use of emergency powers or a rise in the proportion of patients deemed to be incapacitated as regards making decisions about ECT. It would be worth exploring how we can address some of those questions more fully and provide the necessary safeguards in respect of an across-the-board introduction of a mental capacity test, as suggested by Amendment No. 14. The indeterminate nature of the concept of mental incapacity could make it an uncertain legal threshold in this important context. Nevertheless, while raising these broad issues, I support without reservation those parts of the amendments that would result in more effective safeguards in the use of ECT for under 18s. Thankfully, I do not believe that ECT is used widely for children and young people. The last government survey of 2001-02 counted only four patients between 16 and 18 to whom ECT was administered. However, although the numbers affected appear to be low, we must not be complacent about the need for effective safeguards when such severe treatment is considered for young people. Over the past three years, the Mental Health Act Commission has been aware of nine patients under the age of 18 for whom ECT has been considered, although our data is unlikely to be complete, as the Mental Health Act Commission becomes aware of such patients only if, first, they are detained under the Act's powers, and, secondly, if they cannot, or will not, consent to ECT so that a second-opinion doctor's certification is required. Of course, this amendment would mean that a second-opinion doctor would have to visit all patients under 18, whether or not they were deemed to consent. I welcome that aspect. I am sure that the Committee will share my concern at the lack of complete data, and I shall be returning to this issue when I speak to my later amendment on notifications to the Mental Health Act Commission. But I am certain, as noble Lords would expect, that the nine young people whom we know about, for whom ECT was reviewed, were suffering from the most distressing conditions and were generally in a very desperate state. In preparation for today's debate, I was able to read the doctors' reports on visits to five of these young people over the past two years. The youngest was aged 15, one was 17 and the other three were 16 year-olds. Four of the five were teenage girls. Their diagnoses all involved severe depressive psychoses, with at least a tentative diagnosis of anorexia nervosa in three of the girls, although all four were being fed by nasogastric tube as a consequence of their refusal of food and fluids. None was deemed to have the mental capacity to give or withhold valid consent to their treatment. Each of them had at least one visit from a second-opinion doctor to consider ECT treatment and some had three or four visits in that time. For two of those five patients, the second-opinion doctors declined to authorise ECT on the grounds that the situation was not yet desperate enough to warrant it, or that other alternative treatments had not yet been exhausted. For example, the fact that one patient was accepting food and drink was cited as a reason why, in this case, ECT should not be administered. In another case, the second-opinion doctor specifically recommended that, if ECT were to be considered again, the advice of a psychiatrist with appropriate expertise should be sought, and that this should take place prior to any request for a further statutory second opinion through the Mental Health Act Commission’s offices. In three cases where ECT was authorised, a single course, which is 12 treatments, was given. In the fourth, which concerned the youngest—and from the records that I have seen, the most desperately ill of all the patients—a total of 20 ECT applications was authorised. This 15 year-old girl was tormented by terrible delusions of becoming contaminated through food, or even through contact with others who had eaten. She frequently needed to be under close supervision to prevent her from severely harming herself and she was extremely withdrawn. I do not doubt the severity of this case and the ECT was reported to have had an initial positive result, but that was short-lived. In fact, the progress she has made since is largely attributed to a combination of psychiatric drugs and family therapy, which have continued throughout her hospitalisation. It seems to me that wherever there is doubt about the long-term benefits of a treatment there must be greater caution in its use. That is never stronger than with respect to children and young people. I hope that the Committee will agree that decisions to use ECT in such cases should be taken only with the greatest care and deliberation. If we can strengthen the safeguards to ensure that, I think we should do so. I sincerely hope that the Minister will agree with this, whether or not he is prepared to accept the exact wording of that part of the amendment dealing with ECT for children and adolescents. I have spoken mostly to that aspect of the amendments because I believe that the safeguarding of children and young people must be considered separately from that of adults. I most strongly urge the Government to accept that. If they cannot accept those aspects of the amendments as they stand, I urge them to come back with a proposal that will have a similar effect.