Mental Health Bill [HL]

moved Amendment No. 21: 21: Clause 12 , page 9, line 5, at end insert— ““( ) Before section 76 insert— ““75A Advance decisions and advance statements: making and withdrawing (1) An advance decision is a decision, made by a person (““P””) when he has reached the age of 18 and when he has the capacity to do so, that if— (a) at a later time and in such circumstances as he may specify, a specified treatment is proposed to be carried out or continued by a person providing health care for him, and (b) at that time he lacks capacity to consent to the carrying out or continuation of the treatment, the specified treatment is not to be carried out or continued. (2) An advance statement is a written statement made and subscribed by a person when he has capacity to do so setting out the ways he wishes to be treated for mental disorder. (3) An advance decision or an advance statement may be regarded as specifying a treatment or circumstances even though expressed in laymen’s terms. (4) P may alter or withdraw an advance decision or an advance statement at any time when he has capacity to do so. (5) An advance decision need not be in writing. (6) A withdrawal, a partial withdrawal, or an alteration of an advance decision need not be in writing. 75B Validity and applicability of advance decisions and advance statements (1) An advance decision or an advance statement made under section 75A above is not valid if a person (““P””)— (a) has withdrawn the advance decision or advance statement at a time when he had capacity to do so, (b) has, under a lasting power of attorney created after the advance decision or advance statement was made, conferred authority on the donee (or, if more than one, any of them) to give or refuse consent to the treatment to which the advance decision or advance statement relates, or (c) has done anything else clearly inconsistent with the advance decision or advance statement remaining his fixed decision. (2) An advance decision or an advance statement is not applicable if— (a) that treatment is not the treatment specified in the advance decision or advance statement, (b) any circumstances specified in the advance decision or advance statement are absent, or (c) there are reasonable grounds for believing that circumstances exist which P did not anticipate at the time of the advance decision or advance statement which would have affected his decision had he anticipated them. 75C Effect of advance decisions and advance statements (1) If an advance decision or an advance statement made under sections 75A and 75B above is found to be valid and applicable to the treatment, decision or measure at the material time the person making the decision shall have regard to P’s wishes as specified in the advance decision or advance statement. (2) Where a decision is made which conflicts with a valid and applicable advance decision or an advance statement the requirements set out in subsection (3) below must be complied with. (3) Those requirements are— (a) recording in writing the circumstances in which those measures were, or treatment or decision was, authorised, given or made, or, as the case may be, not authorised, given or made, and the reasons why; (b) supplying— (i) the person concerned; and (ii) the person’s nearest relative, with a copy of that record and placing a copy of that record within that person’s medical notes.”””” The noble Baroness said: First of all I must remind the House that the Mental Capacity Act 2005 enables someone who has mental capacity to make a decision that they do not want a particular type of treatment if they should lack capacity in the future. A doctor must respect this decision. My amendment gives the same privilege to a person with full mental capacity to make a decision that they do not wish in the future to receive a particular form of treatment if they become incapacitated through a further episode of mental illness. This is a refusal of treatment, because no one can specify exactly what treatment a doctor will recommend in the future. It is not a demand for treatment, it is a refusal to accept some treatments. However, patients who have experienced treatment often have a good idea about what helped and what did not, and may want to express hopes and wishes about the future as well as to specify what they do not want. The noble Earl, Lord Howe, talked about this in an earlier amendment today. Patients’ wishes should be heard and taken into account when deciding treatment. At the moment we have differential rights between those subject to the Mental Capacity Act and those to the Mental Health Act. Under the Mental Capacity Act a person can make an advance directive on refusing further treatment, for example should they develop advanced Alzheimer’s disease. If having developed the condition that person does not resist medical intervention, they will be subject to the Mental Capacity Act and the advance directive will be honoured. If on the other hand they resist medical care, they may be subject to the Mental Health Act and the advance directive may not be honoured. I can see no good reason why for incapacitous patients there should be any distinction between using force in treatments for physical disorder and treatments for mental disorder. There are a number of reasons for saying that. First, no distinction is made between treatments for physical disorder and those for mental disorder if the patient is incapacitous but compliant. Under the Mental Capacity Act a patient with, for example, Alzheimer’s disease would be able, despite resistance, to receive treatment for dental disease, for example, but not for the Alzheimer’s disease itself. Secondly, the distinction between treatment for mental disorder and for physical disorder is often one of semantics—disease of the thyroid gland, for example, may cause depression or pseudo-dementia. In these circumstances treatment of the depression or pseudo-dementia would also be treatment of the thyroid disease. How are we to make a distinction between those two? Advance directives are a tool to empower patients to become good partners in negotiating individualised treatment and care in the future, when they have a time of crisis. When negotiated in advance as an agreement between patient and clinicians they are even more useful. Advance agreements are widely used in German-speaking countries and they are offered routinely in at least 50 psychiatric hospitals in Austria, Switzerland and Germany, where they are legally binding. There is evidence from a randomised control trial conducted by Dr Claire Henderson and her colleagues at the Institute of Psychiatry, published in 2004, that use of agreed joint crisis plans made during the recovery phase of an episode reduced compulsory admissions and treatment in patients with severe mental illness over the follow-up period. The reduction in overall admission was less but this was the first structured clinical intervention that seemed to reduce compulsory admission and treatment in mental health services. In practice patients sit down with their professional when they are well and agree to carry around a card with them that usually has the name of a relative or advocate to be contacted and an outline of a care plan and acceptable medication. Earlier today we saw the noble Baroness, Lady Knight, with her card for an advance directive on her physical care. It is similar to the cards that patients on the continent, and many patients here, often carry. The card may very well say yea or nay to ECT. Patients have very individual responses, as we have heard. In Illinois these arrangements are encouraged and binding. Participants in such schemes list preferred medications and the medications they would refuse, most often first-generation anti-psychotics regardless of whether they would refuse ECT. Half of them appoint a surrogate decision maker. Most desire a directive that would be irrevocable during periods of incapacity. In Illinois, the advance directive is binding for three years. The recent Scottish Act which we have discussed at length in Committee enables people who are detained to make an advance statement not only to refuse treatment in advance but to specify their wish for a treatment they found helpful. It is extremely helpful for a clinician when faced with a patient who is unable to express their wishes to have a clear indication of the patient’s views on type of treatment. It also means that patients can play as full a part as possible in decisions on care and treatment. That is likely to improve engagement at a later date. In a case where an advance decision or statement is being considered there have to be processes to decide whether the decision is valid and applicable—that is, whether the circumstances are those the person envisaged when expressing their view—in order to protect the patient and the clinician from misunderstanding or error. These amendments would provide a framework for doing so. In summary, I want to introduce a mechanism and support for patients’ participation in their own future care and respect for their autonomous decisions when they are well. I beg to move.