Clause 35 - Duty to seek advice in connection with serious medical treatment
Mental Capacity Bill
12:00 pm
Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)
I beg to move amendment No. 49, in
clause 35, page 20, line 2, after 'body' insert
'or other registered medical practitioner'.
The amendment follows on rather neatly from the group of the amendments that we have just discussed. My concern when I tabled it was to anticipate circumstances in which the medical treatment sought might be carried out by a private doctor or by a private doctor under some contract or other arrangement with the NHS. The Minister has already explained the need to be able to reach into the private sector to access information. I do not want to open up issues about privatisation or otherwise in the NHS, but I would like her assurance that if it was appropriate for private services to be sought, there would be some means of ensuring that independent consultation could be required, because otherwise the safeguards to the person without capacity would be diminished and might in certain cases lead to people who did not have their best interests at heart actually choosing the private route for no other motive than to avoid the independent consultation or controls.
Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)
Under the clause, the NHS bodies have a duty to consult the independent consultee. The amendment relates to the question of whether the duty to consult the independent consultee should fall on all registered medical practitioners working in the independent sector. There is a duty to consult if the treatment is arranged by, funded by, and provided in the independent sector. In other words, the independent consultee safeguard will be provided if it is provided, arranged and paid for by the NHS. However, it is very difficult for us to fund safeguards for all practitioners in the independent sector.
The situation is also very unlikely to arise because it is difficult to envisage how the independent sector could provide an unbefriended and incapacitated person with serious medical treatment that was then
funded privately without the involvement of a lasting power of attorney, a deputy, friend or relative, or social services.
The amendment is unnecessary, because it is almost impossible to envisage a situation in which such treatment could be provided, bringing in, in an unbefriended situation, the independent consultee, without there being somebody else involved. When we consider possible disputes, I can examine whether that might be an appropriate time to bring in somebody, as the hon. Member for Tiverton and Honiton suggested. At this stage, however, it is extremely unlikely that such a situation would arise.
Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)
I am grateful to the Minister for her explanation. I had not expected that there would be widespread use of the provision, and she has provided some useful assurances on which I will reflect. In the meantime, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)
I beg to move amendment No. 222, in
clause 35, page 20, line 3, after 'provide', insert
', or secure the provision of,'.
Mr Alan Hurst (Braintree, Labour)
With this it will be convenient to discuss Government amendment No. 225.
Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)
These are technical amendments designed to clarify the fact that the independent consultee should be consulted about serious medical treatment where practitioners are working in the independent sector and the treatment is funded and arranged by the NHS. This refers to the discussions that we have just had. The term ''NHS body'' will be defined in regulations and will include commissioning bodies.
The clause currently applies where an NHS body is proposing to provide serious medical treatment, which could be understood to exclude situations where an NHS body proposes to make arrangements for someone else to provide the treatment. If so, a commissioning NHS body would not be caught by the clause in the first place. I hope that that explains why we have tabled the amendments, and that the Committee will support them.
Amendment agreed to.
Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)
I beg to move amendment No. 223, in
clause 35, page 20, line 7, at end insert—
'( ) But this section does not apply if P's treatment is regulated by Part 4 of the Mental Health Act.'.
Mr Alan Hurst (Braintree, Labour)
With this it will be convenient to discuss Government amendments Nos. 226 and 232.
Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)
The amendments deal with the interface between the independent consultee arrangements and the Mental Health Act 1983. The purpose of the independent consultee is to give extra protection to the most vulnerable people who lack capacity. As hon. Members will know, patients who are subject to the 1983 Act rightly already enjoy a range of protections and procedural safeguards—safeguards that will be strengthened by the Mental
Health Bill, which is undergoing pre-legislative scrutiny. Patients can be made subject to the 1983 Act only when strict criteria are met, and there are several ways in which that can take place. Obviously, because people who are subject to the Act already enjoy those safeguards, independent consultee arrangements are best targeted at people whose care is not subject to the Act.
Amendment No. 223 makes it clear that NHS bodies do not need to involve the independent consultee if the serious medical treatment in question is regulated by part IV of the Mental Health Act 1983. As I said, that deals with the treatment of patients detained under that Act for assessment or treatment.
Amendments Nos. 226 and 227 take a similar approach to clause 36. They make clear that an NHS body will not need to involve an independent consultee where accommodation is to be provided because a patient is to be detained in hospital under the Mental Health Act. Nor will NHS bodies have to involve the independent consultee if the patient is required to live in the accommodation in question under another provision of the Act. Amendment No. 227 makes an equivalent change to clause 37, so that local authorities are not required to involve an independent consultee when providing accommodation in which someone is required to live under the Mental Health Act.
So, the amendments will, between them, ensure that there is a clear distinction between procedures under the Mental Health Act and the arrangements for independent consultees. That will avoid unnecessary duplication and will ensure that independent consultees are targeted on people who do not benefit from the safeguards of the Mental Health Act. That will not affect the involvement of independent consultees in relevant decisions about accommodation for patients who are about to be discharged from the requirements of the Mental Health Act. I hope that hon. Members will support the amendments.
Amendment agreed to.
Amendment made: No. 224, in
clause 35, page 20, line 9, after 'interests', insert
'and, in particular, as to the matters mentioned in section 4(5)'.—[Ms Rosie Winterton.]
Mrs Angela Browning (Tiverton and Honiton, Conservative)
I beg to move amendment No. 244, in
clause 35, page 20, line 9, at end insert—
'(2A) Before treatment is provided the NHS body must seek a second expert opinion with respect to whether the treatment proposed is in the best interests of P.'.
In the previous group of clauses, the Minister exempted matters to do with existing mental health legislation. I understand why she did that. In that context, I raise a situation that is all too frequent and which I raised in previous debates in the House in the last two or three years. It relates to the treatment of people with learning disabilities and autistic spectrum disorders, particularly the latter.
Autistic spectrum disorder is outwith the existing mental health legislation, but all too often we find both at primary care level—referrals by GPs and treatment in the community—and at hospital level, that there is not the expertise for people and their carers to feel that the advice of a single practitioner is sufficient. There have been many cases of misdiagnosis because of single practitioners, who do not have expertise in a particular field. I stress that the matter goes beyond ASD.
At such times I feel that, particularly in this part of the legislation, where we are talking about serious medical treatment, it is not sufficient for the Bill to provide for consultation with the independent consultee. It should contain a requirement for a second professional opinion. I think that the medical profession would welcome that. In informal soundings, many people have been able to think of circumstances in which a second opinion would have been very helpful.
That second opinion does not have to be from another doctor with the required expertise who comes to the hospital. In this age, many second opinions are given by phone or webcam. If a decision has to be made about serious medical treatment, the patient and the independent consultee should have the protection of a second medical opinion. We hear of the odd rogue case—those are tragic but few and far between; I am thinking not of a Shipman scenario, but of day-to-day cases—in which someone is misdiagnosed or not referred for a specialist diagnosis.
Independent consultees will have all the training that the Minister outlined, which I welcome, but they may not have the expertise in a particular field of medicine to feel that it was appropriate at a certain point to demand a second medical opinion. That is why this should be incorporated in the Bill—so that it is part of the mechanism by which those serious decisions are taken.
In respect of the Mental Health Bill, I want much more structure in relation to how second opinions are given and the circumstances under which patients can demand them as far as specific mental health cases are concerned. The Minister excluded some of that from this Bill when speaking to a previous group of amendments, which is fine. I do not criticise that, but it leaves a large number of people who will fall through the net and for whom there will be great concern if the independent consultee does not have expertise in the relevant discipline of medicine that affects them. From what I have heard today, it seems unrealistic to think that an independent consultee—however good their training—would know when it was and was not appropriate to ask for a second medical opinion. That is why I want such provision in the Bill.
Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)
I understand the sentiment behind the hon. Lady's amendment, but I stress that it is already best practice to have access to a second medical or clinical opinion where there is reasonable concern from a third party. The independent consultee will be able to request that.
The Bill aims to give people without capacity equal rights to people with capacity, not more rights. The independent consultee will give people who lack capacity and who have no friends or family the same possibility of accessing a second opinion as people with capacity, and people without capacity who have friends or relatives to assist them. Independent consultees will provide an oversight of care and treatment. They will check that the person's views are being properly considered and provide a safeguard that the decision is based on wide and informed discussion.
We certainly agree that a second opinion would be useful in some circumstances, but another medical opinion would provide another medical perspective when what might be needed is an assurance that non-medical considerations, such as social and emotional ones, have been discussed. To provide that a second expert opinion must be provided in all situations seems bureaucratic, given the safeguard of independent consultees. Therefore, I ask the hon. Lady to withdraw her amendment.
Mrs Angela Browning (Tiverton and Honiton, Conservative)
I ask the Minister to reflect further on this matter, because it is unrealistic to think that independent consultees will have the medical expertise to know when to ask for a second opinion. Also, those with autistic spectrum disorders, whom I mentioned, would be outwith the remit of mental health services, but would, if a certain treatment were prescribed, cross the border to being covered by that legislation, unless the independent consultee were sufficiently well versed in matters to do with mental health issues to seek a second opinion at that point.
I give the Committee an example that I have given the House on many occasions. Many times—I emphasise those words—people with autistic spectrum disorders will suddenly present with alarming, challenging behaviour that is triggered not by some malfunction of the brain or because they have a mental health problem, but because a certain situation has traumatised them such that they behave in a certain manner. If they are not with people who know them and who know what triggers such behaviour, they often fall foul of mental health services. That can often lead to their being presented not to a person who knows all about them and who could calm them down and manage the situation, but to mental health practitioners. At that point, they cross the divide from this legislation to mental health legislation. Once that happens—this was relevant to the Bournewood case—they may be misdiagnosed and medicated.
It is quite common for autistic spectrum disorders to be misdiagnosed as schizophrenia, with all the implications of the medication that goes with schizophrenia. Unless someone dealing with the situation on the ground has the expertise to recognise that it might be a good idea to get a second opinion from a doctor who knows the patient and his condition, at that point the patient will cross from this legislation to other legislation. If there were a good reason for that happening, I would have no quarrel with it, but, in practice, we see it happening far too often today. I have asked the Department of Health to
monitor the number of people who cross the border and are misdiagnosed because one single doctor thinks they know best when, if they were obliged to take a second opinion, the course for the patient would be quite different. They would not be on medication for something that they do not have, with all the damage that such drugs do.
I simply ask the Minister to consider the matter. This group of people are on a border. An independent consultee is unlikely to have the necessary expertise unless they have a specialism, which would enable them to know that they should rightly demand a second opinion. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: No. 225, in
clause 35, page 20, line 14, leave out 'treating' and insert
'providing, or securing the provision of, treatment for'.—[Ms Rosie Winterton.]
Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)
I beg to move amendment No. 50, in
clause 35, page 20, line 17, after 'State', insert
'(subject to an affirmative resolution of both Houses of Parliament)'.
Mr Alan Hurst (Braintree, Labour)
With this it will be convenient to take amendment No. 52, in
clause 39, page 21, line 34, at end insert
'subject to an affirmative resolution of both Houses of Parliament'.
Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)
Briefly, these two amendments would provide in clauses 35 and 39 respectively for decisions to be taken by the affirmative resolution procedure. The matters in question are not simply administrative. One relates to the definition of serious medical treatment and the other to any proposals to expand the role of the independent consultee service. Those are substantial matters in which the House and Parliament would properly take an interest, so I hope the Minister reflects on whether the affirmative resolution procedure is appropriate.
Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)
I assure the hon. Gentleman that I understand the reasoning behind his amendments. He wishes to ensure full parliamentary scrutiny of any regulations that are drawn up to specify which serious medical treatments will trigger the involvement of the independent consultee.
We certainly will consult widely on the content of the regulations and the reasons for inclusion of medical treatments in the list will be widely known, discussed and, we hope, agreed among the stakeholders that have worked with us on the Bill. The regulations will be laid before Parliament under the negative resolution procedure, and during that time any hon. Member may call for a debate. That is the appropriate way to develop the regulations, which may be subject to revision as medical treatments change.
Clause 39(1) enables us to extend the role of the independent consultee to other categories of people and situation. That provision is significantly different from all other regulation-making powers in the Bill. It
will permit the extension of the independent consultee function to new situations. It could be argued that that provision was not necessarily contemplated by Parliament during earlier stages, however, and I am certainly prepared to reflect on the hon. Gentleman's amendment and consider finding a way to allow Parliament greater scrutiny of that aspect of the regulations. I therefore hope he will withdraw the amendment.
Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)
On precisely that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause, as amended, stand part of the Bill.
Ms Rosie Winterton (Minister of State, Department of Health; Doncaster Central, Labour)
There are several differences between new clause 23 and clause 35. I have already said why we do not want to change ''consultee'' to ''advocate''. The new clause also focuses on making representations. I understand why my right hon. Friend the Member for Coatbridge and Chryston proposes that; he wants to ensure that the incapacitated person's wishes and feelings, beliefs and values are the key factors when making decisions about serious treatment. Again, I refer my right hon. Friend to our amendments on that question, which clarify the role of the independent consultee.
Another difference between the new clause and the Bill is the review of ongoing treatment. The new clause would require review of ongoing treatment by an independent advocate if, because of its urgency, he had not been involved in the initial decision. We have not included such a provision because we want the Bill to set a clearly defined point at which the statutory duty of the decision maker to consult the independent consultee should apply. However, as part of our consultation on developing regulations linked to clause 39(1), we intend to consider the functions of the independent consultee, which will include considering whether his role should include reviewing ongoing
decisions taken in an emergency without involving the independent consultee. I can give my right hon. Friend that assurance.
The new clause would legislate for the regulations on medical treatment to be split into three categories. We do not want to specify that decisions on certain treatments should always go to the court. It would be needlessly bureaucratic to require decisions to go to court when everyone agrees, and it would not be helpful to create a separate category of treatments for which the independent consultee could request a second opinion. As we have just discussed, there is already the best practice of having access to a second medical opinion.
The new clause includes subsections that are identical to amendment No. 176, which we covered in our debate on clause 34. I hope that the reassurances I gave then indicated some safeguards that we believe are already built into the Bill.
I say again that we will widely consult partners outside government on the development of the independent consultee service. I hope that I have been able to reassure my right hon. Friend on the points that he raised through new clause 23 and that he will not press it to a vote.
Mr Tom Clarke (Coatbridge and Chryston, Labour)
I apologise to my hon. Friend the Minister because I took her by surprise—she was expecting me to begin the debate with a speech. The new clause is rather like a probing amendment in that one seems to get more out of people when one takes them by surprise. In view of her assurances, there is every possibility that this matter will be given an airing on the Floor of the House, so I shall not press new clause 23 to a vote.
Question put and agreed to.
Clause 35, as amended, ordered to stand part of the Bill.
Further consideration adjourned.—[Ms Bridget Prentice.]
Adjourned accordingly at thirteen minutes to Six o'clock till Thursday 4 November at half-past Nine o'clock.