Clause 31
Mental Health Bill [Lords]
1:30 pm
Sandra Gidley (Shadow Minister, Health; Romsey, Liberal Democrat)
Before lunch I was outlining the ways in which advance directives could be used. In the case of conditions such as Alzheimer’s disease or other degenerative illnesses, a decision is often made not to have treatment. However, in the mental health arena there is a good case to be made that people who are feeling well should be able to state a preference for the treatment that they feel has most benefited them in the past. That decision can and I suggest should be made in consultation with the clinician, and it is helpful to the clinicians themselves in providing something for them to fall back on.
Patients who currently fall within the scope of mental health legislation are not afforded the same rights as those who are dealt with under the Mental Capacity Act 2005, which seems somewhat discriminatory. The nature of a mental condition means that there is frequently a lack of trust between patients and clinicians, so anything we can do to help build bonds and bridges is to be welcomed. That would also allow patients to feel much more in control of their lives and their health.
The system that we are advocating already works in some European countries. Even in the UK, a research-based review found that people with severe and enduring mental health problems who were subject to compulsory treatment were able to draw up realistic and logical advance directives, and did not use them as a means of refusing all possible future treatment, as some mental health professionals had feared. It is important to bear that in mind. Interestingly, the study also said that there is no evidence that improved outcomes result from advance decision making, although the issue is not one of outcomes; it is about the ability of the patient to feel confident and secure in any future treatment.
Similar legislation exists in some European countries. The Scottish legislation, which we have discussed extensively in this Committee, specifies that patients can refuse treatment or specify a treatment that they have found helpful in the past. In another place, Lord Carlile expressed disappointment that so many recommendations of the joint scrutiny Committee had been dismissed by the Government. He noted that that Committee had recommended that the Government introduce legislation that would enable people to make advance statements and to record advance decisions—particularly if there was a treatment that they would not wish to receive. So there is a strong drive for the Bill to include something along those lines.
New clause 4 has three aims. First, it defines the nature and function of advance decisions and advance statements. Secondly, it outlines the procedure to be followed if decisions are taken that are inconsistent with an individual’s wishes as expressed in an advance directive. Thirdly, it defines how a person’s wishes and feelings about their care treatment should be taken into account. Considering the Government’s correct and laudable desire for patients to be more involved in their health care, I am struggling to see what the problem is.
Advance directives are documents usually drawn up by individuals when they are well. They are generally binding under common law, but they can be overridden if the person is subject to compulsory treatment under the Mental Health Act 1983. That seems a strange anomaly. Advance statements give people the opportunity to state positively their wishes on care and treatment in case they lose the ability to make decisions for themselves at some time in the future. As I have pointed out, that is helpful to the clinicians themselves and provides opportunities for patients and physicians to discuss treatment in more detail.
It has been said that such provisions could be included in the code of practice, but they are on such a fundamental underlying principle that they should be in the Bill. Codes of practice are subject to change and the weight given to them is not always as great as it should be. It would be helpful if the Minister could consider the matter in more detail.
I have mentioned new clause 16, which we generally support, and to save time—we are under a little pressure now—I will not go into detail on it.