Rosie Winterton (Minister of State (Health Services), Department of Health; Doncaster Central, Labour)

I beg to move amendment No. 42 in clause 14, page 9, line 13, leave out ‘approved clinician’ and insert ‘person’.

Frank Cook (Stockton North, Labour)

With this it will be convenient to discuss Government amendments Nos. 67, 68, 45, 69 and 70.

Rosie Winterton (Minister of State (Health Services), Department of Health; Doncaster Central, Labour)

The amendments make technical changes to part 4 of the Mental Health Act 1983 and correct minor inconsistencies that have crept into the legislation. They are intended to maintain the independence and integrity of the second opinion appointed doctor who, under part 4, has various roles in safeguarding the patient by providing a second, independent opinion on certain issues.

Government amendment No. 42 will ensure the independence of the SOAD, who certifies treatment under section 57 of the 1983 Act, among other things. The section covers psycho-surgery and other treatments referred to in regulations and is used only a few times a year. None the less, it is important to ensure that the legislative framework is robust. At the moment, a person in charge of a section 57 treatment who is not an approved clinician could technically be appointed as the SOAD who certifies the treatment. However neurosurgeons who perform psycho-surgery, for example, are unlikely to be clinicians. In practice, it should not happen, but to put it beyond doubt, the amendment makes it clear that the person in charge of a section 57 treatment cannot also be the SOAD who certifies the treatment.

Government amendments Nos. 67, 68, 69 and 70 deal with the SOAD’s duty to consult two other people who are professionally concerned with a patient’s treatment before deciding whether treatment under sections 57, 58 or 58A should be certified. We want a variety of views to inform the SOAD’s decision. At present, the 1983 Act requires the SOAD to consult one person who is a nurse and one person who is neither a nurse or a doctor. The amendments will ensure that neither of the people consulted can be the patient’s responsible clinician or, where different, the person in charge of the treatment. Of course, the SOAD will discuss the treatment with the person in charge, but by placing a duty on the SOAD to consult other professionals, we will ensure that a broad range of perspectives are taken into account.

Government amendment No. 45 makes it clear that the person in charge of a section 57 treatment can carry out all the statutory functions pertaining to that role, which includes providing a report to the Mental Health Act Commission on the treatment of a patient’s condition, whether or not they are an approved clinician. There is an anomaly at the moment in that such functions can be carried out only by an approved clinician in charge of the treatment, but there is no requirement for the person in charge of a section 57 treatment to be an approved clinician. Of course, the Bill will require an approved clinician to be in charge of any part 4 treatment under powers given by the 1983 Act without having to consult. No professional may be in charge of a treatment that they are not required to deliver.

In summary, the amendments will iron out inconsistencies in part 4 that would otherwise flow from the introduction of the role of approved and responsible clinicians.

Tim Boswell (Daventry, Conservative)

Good morning and welcome to the Chair, Mr. Cook.

I accept the spirit of the Minister’s presentation of the amendments and her wish to have a Bill that is technically well founded. I am not seeking to overturn the substance of the amendments, but I have two questions that perhaps go a little wider than they might seem. They are designed to get her assurance about the equality of position and equality of influence of the two people responsible for the process.

If a person is not a medical practitioner, but is some other person responsible for treatment, will the Minister assure us that their views will be treated in good faith and on an equal basis, and that there will be no question of what may be termed professional brow beating? I am sure that the various professionals will say that neither they nor their representative bodies ever wish to brow beat, but there must be an equality of treatment regarding those two persons, wherever they come from, in relation to the certification process.

My second question relates to amendment No. 45 and the issue of reporting, and what happens if a person is not a clinician but is in charge of the patient and their reporting. Can the Minister explain how such a report will deal adequately with matters of professional judgment relating to the clinical process itself? Presumably, as I think she has sought to explain to the Committee, a person with care of the patient will  know them as well as anybody could, and they have a perfectly legitimate judgment to form and to pass on about the nature and progress of the treatment. Again, I do not think that we want a situation in which there is any inequity in treatment. I am referring here to my first comment about whether or not the person who is responsible for signing is or is not qualified in a particular discipline and also to whether they are producing a report that is not informed by the professional stamp of a registered clinician in that field. Those are minor comments, but it might be useful to have the Minister’s reassurances on them—or reflections on them if that is easier.

Rosie Winterton (Minister of State (Health Services), Department of Health; Doncaster Central, Labour)

I certainly hope that there would not be professional brow beating in those circumstances. As I have said, the amendments are largely technical and aim to preserve the independence of the second opinion appointed doctor. Perhaps it will help if I clarify the fact that the legislation has never required an approved clinician to be in charge of section 57 treatments. To answer the hon. Gentleman’s question, those treatments can be given only with the patient’s consent. It is the patient’s consent that gives the authority to deliver the treatment, and not the powers of the Mental Health Act 1983. Therefore, we think that it is unnecessary for the treatment to be in the charge of a clinician approved to apply the Act. I hope that that answers the hon. Gentleman’s question.

Angela Browning (Deputy Chairman (Organising and Campaigning), Conservative Party; Tiverton & Honiton, Conservative)

I, too, have a question. I think that I know the answer, but I just want reassurance from the Minister.Section 57(1)(a) of the 1983 Act involves

“any surgical operation for destroying brain tissue or for destroying the functioning of brain tissue.”

Will the Minister confirm that other legislation in respect of the removal of tissues from the body would apply to that particular process in that part of the Act?

Rosie Winterton (Minister of State (Health Services), Department of Health; Doncaster Central, Labour)

As I said, section 57 treatments can be given only with consent. Is the hon. Lady making a cross-reference to the Human Tissue Act 2004 and some the capacity issues regarding decisions that can be made on behalf on an individual? Section 57 treatments cannot be given to somebody without capacity. The issue of removal of tissue for use in research would not apply in the way that she is talking about. If an individual does not have capacity,section 57 treatments cannot be applied.