Tim Loughton (Shadow Minister (Children), Health; East Worthing & Shoreham, Conservative)

I beg to move amendment No. 10, page 20, line 1, at end insert—

‘(c) after subsection (3) insert—

“(4) Subsection (1)(b), (c) and (d) above shall not apply if the treatment is electro-convulsive therapy.’.

The amendment is another probing one in relation to ECT. Its purpose is to amend the 1983 Act to restrict the right to give emergency ECT without the normal safeguards to patients lacking capacity, and instead to limit treatment to situations in which it is given to save the patient’s life. We agreed earlier that, although we might not like the use of ECT—some hon. Members have questioned whether it ever has any efficacy, and I share that concern—in emergency life or death cases, we must rely on the opinions of clinicians at the coal face.

Section 62 of the 1983 Act covers urgent treatment. It severely limits the emergency provision of treatments that are hazardous or irreversible. It is generally accepted, and I think that there is general agreement in the Committee, that ECT is hazardous, although the risk to individuals will vary depending on general health and other factors. Indeed, as the hon. Member for Norwich, North has said, there is a question mark over the issue of its effect, and its possible side effects. It is therefore possible, under section 62, that it should not be available except under section 62(1)(a), as immediately necessary to save the patient’s life.

It is not clear, however, that section 62 can be interpreted in that way. The form of wording implies a relevant treatment not being irreversible or hazardous  of itself, although it might be either irreversible or hazardous in an individual case. I know that the Mental Health Alliance believes that a treatment that is potentially hazardous and irreversible should not be given without a second opinion, except in the most compelling circumstances, such as when it is immediately necessary to save life. I agree with that view. It is, also, extremely unlikely that ECT would ever be the only alternative for a patient. We have heard in an earlier debate the Minister’s reassurance about how little ECT is used for children. There have been a couple of handfuls of cases in the past few years, so the practice is not widespread, but it is important that safeguards should exist for the relevant people; they should be protected.

In the debate on this subject in the House of Lords, Baroness Murphy said:

“The only circumstance where one is justified in giving emergency ECT—in other words, to give it without a second opinion in a life-threatening illness—is where someone has stopped eating and drinking. Under those circumstances they have nearly always stopped speaking as well.—[Official Report, House of Lords, 15 January 2007; Vol. 688, col. 483-4.]

The amendment is a probing one, to attempt to instil some safeguards into the arrangements. There appears to be some doubt in the wording of the 1983 Act about the potentially hazardous nature of ECT. We want more safeguards on ECT, alongside those for other potentially hazardous treatments covered by the Bill.

Ian Gibson (Norwich North, Labour)

I think that we all welcome the changes that have been made in the Lords, on the administration of ECT to patients with capacity who refuse it. I am still concerned, however, about the possibility of urgent treatment provisions being used to give ECT to a refusing patient, in situations that are clearly not an emergency. For example, violent behaviour, it seems, could in certain instances justify the use of ECT. The Minister and I are both familiar with the case of Rocky Bennett, who showed violent behaviour, was restrained in a certain way, and sadly died. I know that there is no parallel, but it might be possible, in such circumstances, to arrive at an interpretation in which ECT is thought better for someone than having six people sitting on him. I do not know, but the Minister should say something about that type of case. It can never be right to give someone ECT just to control behaviour, and I should not want justification of that to be an aspect of the passage of the Bill.

I can see that there might be some situations, involving for example patients who are catatonic, in which ECT would be used, but in my opinion emergency ECT should never be given simply to control violent behaviour. I hope that nothing in the Bill will be taken as justifying or permitting that.

Tim Boswell (Daventry, Conservative)

I very much agree with the remarks of the hon. Member for Norwich, North. The Committee should bear something else in mind: we are confident in general of the good faith of clinicians, but in circumstances in which the patient is, perhaps I should say, behaving badly, which we as lay people would find difficult to handle, and which may be difficult for some clinicians as well, we may have an underlying fear that something might be presented as an emergency when it was in fact a continuing clinical situation, requiring a more deliberate clinical decision, and that some reversions to ECT for a  patient who was being violent might use the alleged emergency as a pretext for ECT. I think that the Committee’s overall message across all parties this morning is the less ECT the better—certainly not unless it is absolutely necessary or without due consideration and, if at all possible, consent. I concur with the sentiments already expressed.

John Pugh (Shadow Minister, Health; Southport, Liberal Democrat)

I am not sure how I am going to get this clarification; maybe the Minister can help me. We were talking about the possibility of ECT being used to control somebody in an emergency situation who is being violent. My supposition is that the administration of ECT normally involves sedation. If somebody is already sedated, they will not be violent at all, unless it is suggested that ECT be used on people who are not sedated, which I think most would regard as cruelty. The case that we need to worry about is one in which somebody is chronically violent and ECT is seen as a remedy for it, which is different.

Ian Gibson (Norwich North, Labour)

Is it not part of ECT for an anaesthetist to be present in the room as well? The drug is administered and the patient is quieted in that way; then the pads are put on the brain.

John Pugh (Shadow Minister, Health; Southport, Liberal Democrat)

My point is that using it to deal with a particularly violent episode would not be the right strategy, because sedating someone resolves a violent episode.

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

Again, the issue was certainly debated in the other place. My hon. Friend the Member for Norwich, North raised the tragic case of Rocky Bennett. I should like to confirm that it does not appear to me that using ECT to control a violent situation is the right thing to do, as a general anaesthetic is administered before it occurs.

My hon. Friend also made a point about NICE guidance and whether it must be taken into account as part of the process when patients consider ECT. The patient is required to understand treatment, which means of course that best practice is to use information that explains the treatment fully. In such circumstances, I would consider NICE guidance to be included in that.

Amendment No. 10, a probing amendment, quite rightly examines the situation regarding what is considered emergency treatment, and attempts to say that ECT should be used simply for emergency treatment—in other words, only in cases where treatment is immediately necessary to save the patient’s life. During the debate in the other place, Lord Hunt and Baroness Royall agreed that the Government would consider the point, but they felt that to limit the circumstances in which treatment can be given in urgent situations to those in which it is immediately necessary to save life would be too restrictive. I agree, and I will try to explain the sort of conditions where flexibility is needed, although I understand completely the concerns that prompted the amendment.

We do not want our commitment to requiring consent if a patient has the capacity to give it to be overridden by clinicians wanting to use the urgent treatment provisions as a mechanism for providing ECT to patients who object to it. There are strong  arguments that it is inappropriate that all the criteria in section 62(1) should apply when considering whether to give ECT to a patient as an urgent treatment. The criteria include treatments that are given to alleviate serious suffering or to prevent a patient from behaving violently or being a danger to himself or others. However, I am concerned that amendment No. 10 would prevent treatment for a patient who does not yet need to have their life saved, but whose condition risks them suffering irreversible effects if treatment is not urgently provided. ECT can be effective in treating some patients with depression. Sometimes, such patients refuse to take any sustenance—to eat or to drink. If that continues for long enough, they will die.

The problem with the amendment is that it would allow for a patient who continues to refuse ECT to receive it only when they get to a point at which their condition is immediately life threatening. It is true that during that time, clinicians may consider other treatments.—[Interruption.]

Frank Cook (Stockton North, Labour)

My apologies to the Committee.

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

However, it can take weeks for a patient to respond to anti-depressant medications. There may be situations in which that will be too late.

Before such patients would be considered to be in immediate need of treatment to save their life, there will be a time when their continued refusal to take food or water, while not life threatening, puts them at immediate risk of a serious deterioration in their condition. Their internal organs, such as their kidneys, might be irreversibly damaged, which could result in life-long disability or illness. In such a situation, it would be wrong to deny a patient urgent ECT treatment when they have either refused it or are not capable of giving their consent. Also, it would be wrong to ask a clinician with responsibility for a patient who lacks capacity to wait either until their condition deteriorates to the point at which they are on the verge of death, or until the SOAD arrives to certify the treatment. There are therefore instances in which we would not want to see clinicians constrained by the effects of the amendment.

Having said that, I understand the thinking behind the amendment, but we have to be realistic; there may be situations in which ECT will need to be administered.

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

Will the Minister clarify how much ECT would be used in the circumstances she described? Will a clinician recommend ECT to deal with the psychological factors when a patient has unilaterally stopped taking fluid or other sustenance to the extent that it has had a physical effect? I am not knowledgeable enough to know whether that would be the course of treatment in those circumstances—I do not know, and I do not know whether she knows. Withdrawal of fluid from the body over a sustained period can have a dramatic effect. Would ECT be so much as considered in such circumstances?

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

Yes, the example I gave was of someone with serious depression who, as may well  happen, has stopped eating and drinking. Anti-depressants can be used, but they take time to take effect. ECT will be used at some stage, but the amendment, which is in the hon. Lady’s name, would mean that the clinician had to wait until the patient was near death, as opposed to putting their internal organs at risk of damage.

Tim Boswell (Daventry, Conservative)

Does the Minister agree that it would be wise in such circumstances, both in terms of clinical governance and any possible legal challenge, for the clinicians to make a careful note of the circumstances that led up to the situation and informed his or her clinical decision?

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

Of course that is what we would expect. Given that reassurance, I hope that the hon. Member for East Worthing and Shoreham will consider withdrawing the amendment.

Tim Loughton (Shadow Minister (Children), Health; East Worthing & Shoreham, Conservative)

Again, we have had a useful debate, but we are talking about some technical clinical situations that the Minister and myself are probably not capable of analysing in great detail. I did say that this was a probing amendment and that we might want to return to this matter. She signalled that there were points in the amendment that might merit further attention should we return to ECT on Report. We may consider this further, because I think that we are both trying to achieve the same assurances and safeguards for the patient without an early reliance on a highly invasive and potentially damaging treatment.

I look forward to the further work that the Minister said that she was undertaking, and we shall perhaps have a further debate on this on Report. On that basis, I beg to ask leave to withdraw the amendment.

Frank Cook (Stockton North, Labour)

With this it will be convenient to discuss the following new clauses:

New clause 4—Advance decisions and advance statements

‘(1) The 1983 Act is amended as follows.

(2) After section 76 (visiting and examination of patients) insert—

“76A Advance decisions and advance statements

(1) In this Act—

(a) reference to an advance decision is to an advance decision (within the meaning of the Mental Capacity Act 2005(c.9)) made by the patient, and

(b) “valid and applicable” in relation to such a decision means valid and applicable to the treatment in question in accordance with section 25 of that Act.

(2) If an advance decision is found to be valid and applicable to the treatment regulated by Part 4 of the 1983 Act, the person providing the treatment shall have regard to the advance decision.

(3) Where a decision is made which is inconsistent with a valid and applicable advance decision by the person providing treatment, that person must comply with the requirements set out in subsection (4) below.

(4) Those requirements are—

(a) the circumstances in which treatment was provided and the reason for it should be recorded in writing; and

(b) a copy of that record should be supplied to

(i) the patient

(ii) the patient’s nearest relative and another copy placed in the patients medical notes.

(5) A person performing a function under this Act shall consider, so far as reasonably ascertainable the patient’s past and present wishes and feelings (and in particular any relevant written statement made by him when he had capacity.”.

(3) In section 63 (treatment not requiring consent), at the end, insert—

“(2) When deciding what treatment to give, the approved clinician in charge of the treatment shall consider so far as reasonably ascertainable the patient’s past and present wishes and feelings (and in particular any relevant written statement made by him when he had capacity), and shall record any treatments requested by the patient in the patient’s medical record, and if that treatment is not given shall record the reasons for this.”.’.

New clause 16—Treatment requiring consent (administration of medicine)

‘(1) Section 58 of the 1983 Act is amended as follows.

(2) In subsection (1)(b) leave out “three months” and insert “two months”.’.

New clause 25—Advance statements

‘(1) The 1983 Act is amended as follows.

(2) After section 142 insert—

“142A Advance statements

(1) In this section ‘advance statement’ means a written statement made by a patient (‘P’)—

(a) when P has reached the age of 18 and has the capacity to make such a statement, and

(b) deposited with the person (‘N’) who is primarily responsible for P’s care.

(2) An advance statement may contain—

(a) information about P, and

(b) directions as to the persons to whom that information (or specified pieces of information) is to be communicated if P becomes mentally disordered.

(3) N must—

(a) have regard to the advance statement;

(b) ensure that any other person who is concerned with the care of P is aware of the advance statement.

(4) P may—

(a) withdraw an advance statement, or

(b) replace it with an amended advance statement,

at any time when P has the capacity to do so.”.’.

May I advise hon. Members that it is important that when they stand to speak, they stay standing, so that I know that they are going to speak, and that they stand plainly?

Sandra Gidley (Shadow Minister, Health; Romsey, Liberal Democrat)

My apologies, Mr. Cook, for not standing plainly. I was trying not to stand while you, too, were speaking. I had one eye on the clock and realised that I had only a minute or two to make comments, and another eye on the Whip—[Interruption.]

Claire Ward (Government Whip (technically a Lords Commissioner, HM Treasury); Watford, Labour)

I am not your Whip.

Frank Cook (Stockton North, Labour)

Order.

Sandra Gidley (Shadow Minister, Health; Romsey, Liberal Democrat)

Most of my comments relate to new clause 4, which is an attempt to put the Bill, which we are trying to improve, on a par with the Mental Capacity Act 2005. That Act allows a person to make an advance directive on refusing further treatment. Such a directive is most commonly used when people are aware that they have Alzheimer’s or another degenerative disease. In such circumstances, people often reach a decision when they are well that they will reach a stage when they may not want further treatment, so the directives are commonly associated with a refusal of treatment.

It is important in the context of mental health legislation to realise that there is another aspect to this. Patients can make a positive recommendation when they are well of how they would prefer to be treated. They may have received a number of different treatments in the past and have strong ideas as to which is the most effective and useful for them. Being allowed to make such decisions empowers patients.