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Section 54 — Measures that may be authorised

Mental Health (Care and Treatment) (Scotland) Bill: Stage 3 – in the Scottish Parliament at 12:00 pm on 19th March 2003.

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Photo of Mary Scanlon Mary Scanlon Conservative 12:15 pm, 19th March 2003

Amendment 114 would give the tribunal the power to exclude particular treatments from being given to patients who are subject to a compulsory treatment order. The amendment would allow the tribunal to provide a general treatment authority that would be subject to such exclusions or limitations as it may consider appropriate. That would allow the tribunal to have regard to patients' views. The patient could put all the arguments to the tribunal, which could then exercise its discretion in recognition of the patient's views.

Amendment 114 is supported by the Scottish Association for Mental Health and 63 other organisations that support people with mental health problems. Those organisations believe that the tribunal should consider whether a particular treatment should be given only when an individual has expressed strong wishes about the treatment. That brings us back to the need to strike a balance between the views of the patient and the views of the clinician. It also brings us back to the point about advance statements, to which we will return either later today or tomorrow. Amendment 114 is important to users of mental health services.

The experience of being subject to compulsory powers under the mental health acts can be extremely traumatic for many individuals, not only because they may be deprived of their liberty but because they may be compelled, sometimes forcibly, to accept treatments that may be controversial or invasive or that may involve unpleasant and distressing side effects. Service users who have been in receipt of services for a significant period of time often build up considerable expertise about which treatments work for them. Many service users feel that the distressing effects of certain treatments are such that they do not wish to accept them under any circumstances, regardless of any benefits that such treatments may have. Again, we come back to the recognition of the power and autonomy of patients to express their wishes. The bill should reflect that.

The Millan committee proposed a scheme whereby compulsory intervention would be tailored to the needs of the individual patient. The framework for such intervention was to be a plan of care that would be submitted to, and approved by, a tribunal. The plan of care would be a single document that would set out what treatments and care were proposed by the range of agencies and it would identify which of those treatments would require compulsion. The Millan committee envisaged that, if the patient had concerns about particular kinds of treatment, those concerns could be taken into account by the tribunal before it decided whether to approve the plan of care.

The Scottish Association for Mental Health and the other organisations that support amendment 114 believe that the implication of the Millan report was that, if an individual expressed strong wishes not to have a treatment such as electro-convulsive therapy, the tribunal could take those wishes into account when it decided whether to approve the plan of care.

Disappointment has been expressed about the fact that the tribunal will not have the power to exclude specific treatments from being given, regardless of an individual's wishes and feelings. The effect of section 54(1)(b) as currently drafted would be that the tribunal would be faced with a blunt choice: it would have to decide whether to grant or refuse a general authority for treatment that was given in accordance with part 13.

During stages 1 and 2, I often spoke about advance statements, which are all about patient power. However, I am sympathetic to the arguments that were made by Professor David Owens of the University of Edinburgh to the effect that an advance statement could in fact inhibit the level of care and the treatment that could be given to patients. Again, we need a balance between the wishes of patients and the duty of clinicians. As I said, many patients have long-standing experience of the service, which should be taken into account. We also need to take cognisance of the clinician's duty of care against the rights of the patient.

A similar amendment at stage 2 caused a vote in the committee. It is not often that I quote John McAllion—I do not think that I am qualified to do so—but he argued that the amendment

"would increase the tribunal's flexibility and improve its ability to put the patient's interests first."—[Official Report, Health and Community Care Committee, 21 January 2003; c 3672.]

That is an important factor for all members to consider and I ask them to support amendment 114.

I move amendment 114.

Photo of Adam Ingram Adam Ingram Scottish National Party

It is with pleasure that I speak to amendment 114, given that I lodged a similar amendment at stage 2. My amendment was defeated only by the convener's casting vote.

As Mary Scanlon said, amendment 114 has widespread support in the mental health community. It would allow tribunals to exclude particular treatments from being given to patients who are subject to CTOs, while allowing the tribunal to make a general treatment authority subject to such exclusions or limitations as it might consider to be appropriate.

Such powers would be in line with the Millan committee's proposal that compulsory intervention should be tailored to the individual patient's needs. If the patient had concerns about a particular type of treatment, the tribunal could take those concerns into account before it decided whether to approve the plan of care. The implication of the proposal is that if an individual has a strong wish not to have a particular treatment, such as ECT, the tribunal could take that into account. That would allow the tribunal to exclude such treatments from being given.

Through experience over time, service users become knowledgeable about treatments that work for them and others that are so distressing that they would not wish to accept them under any circumstances regardless of any benefit that professionals might claim they will have. Too often, professionals dismiss those wishes in what is often regarded by recipients as an arrogant and patronising way on the grounds that the recipient lacks insight into their condition. The bill will reinforce that approach.

As Mary Scanlon said, the effect of section 54(1)(b) as drafted would give the tribunal a blunt choice. It would have to decide whether to grant or refuse a general authority for treatment in accordance with part 13. I suspect that few, if any, CTOs will be refused and that many people will thus be forced to endure unnecessary ordeals during treatment. A more humane, sophisticated and flexible regime is called for and I call on members to support amendment 114.

I also refer to the minister's earlier arguments calling for the tribunal to have flexibility. I suggest that this is a clear case for consistency.

Photo of Mary Mulligan Mary Mulligan Labour

We do not support amendment 114, the effect of which would be to allow the tribunal to exclude certain treatments, or to impose limitations on their use, when granting authority for a compulsory treatment order. A similar amendment was considered by the Health and Community Care Committee at stage 2 and was not accepted.

The Millan committee also rejected the suggestion. The Millan report recommended that, in approving a plan of care, the tribunal should be entitled to satisfy itself that the necessary safeguards will be followed, but not to add additional safeguards. The appropriate safeguards are elsewhere, particularly in part 13.

We agree with the Millan committee's analysis. It is important to be clear about what is reasonably within the remit of the tribunal and what is within the responsibility of the treating clinician.

Photo of Mary Scanlon Mary Scanlon Conservative

Can the minister clarify whether, if an individual had strong wishes against a particular treatment—for example ECT—and that view was contained in an advance statement, the tribunal could overrule that wish?

Photo of Mary Mulligan Mary Mulligan Labour

The position on advance statements is that we would ask that everybody take due cognisance of them. However, we are not intending to legislate so that advance statements are the only way forward. There needs to be flexibility in interpretation, to which Adam Ingram referred. If amendment 114 is agreed to, we will be asking the tribunal to override the position of the responsible medical officer, who has the closest contact with the patient and is most aware of the patient's needs. That is why amendment 114 is wrong. It is the job of the tribunal to consider whether compulsory powers are justified and what those powers should be but, at the end of the day, the responsible medical officer has responsibility for the care of the patient and must choose which treatments are appropriate.

We must remember that the tribunal is primarily a legal, not a medical, body. It will have a medical member, but that member will not have examined the patient and so will not be in a position to overrule the clinical judgment of the responsible medical officer. It is not realistic to expect the tribunal to consider detailed medical evidence and to evaluate which individual treatments might not be appropriate.

Furthermore, amendment 114 does not simply ask the tribunal to consider what treatment is not justified now, but also what treatment might not be justified in the future. The tribunal does not have the RMO's clinical knowledge and cannot predict how the patient's mental state might develop. Do we really want the patient's mental state to have to deteriorate so much that an emergency order can be called for? I do not think that we do.

We recognise that there will be treatments that particular patients dislike, but the bill provides suitable protection. Many of those treatments will be covered by part 13, which will require an independent doctor to certify that the treatment is appropriate and necessary. The RMO and any second-opinion doctor will have a legal duty to apply the principles of part 1 in deciding what treatment to give. That means that they must have regard to the wishes and feelings of the patient—I say to Mary Scanlon that that is essential and is part of the bill—as well as take account of any advance statement that the patient might have made. They must also consider the full range of options that is available in the patient's case and act in a way that involves the minimum restriction on the freedom of the patient, which is the principle to which we keep coming back. If a patient has a strong objection to a particular treatment, and even if that patient is too unwell to make a competent treatment decision and is liable to be treated compulsorily, a doctor cannot lawfully give that treatment without having a compelling reason for doing so.

That is not to say that the issue of the proposed treatment is irrelevant to the tribunal. If the tribunal was persuaded that the patient would accept alternative forms of treatment, it would have to consider whether the CTO was truly necessary, and may decide not to grant it. That is an appropriate role for the tribunal to play.

It is also possible that discussions on the care plan will allow the patient to be reassured about the treatment that might or might not be indicated, although we would hope, of course, that those discussions would happen without the need to go to the tribunal. However, to go further than that would not be appropriate to the role of the tribunal and could throw up a host of practical problems. I hope, therefore, that Mary Scanlon will choose not to press her amendment.

Photo of Murray Tosh Murray Tosh Conservative

I call Mary Scanlon to wind up the debate and to indicate whether she will press or seek to withdraw amendment 114.

Photo of Mary Scanlon Mary Scanlon Conservative

I will certainly press amendment 114.

The point that I made is that if we are to reduce stigma, which is one of the principles of the bill, we must treat the users of mental health services with the respect and dignity that their experience accords them. Their views about their treatment should be taken into account fully. As I said, service users build up considerable expertise about the treatments that work and do not work for them.

I accept what the minister says about the fact that, under section 171, urgent medical treatment can be given to a patient but I noticed that she said that the matter was not about having additional safeguards but about the need to "have regard to" the patient's wishes. There is an awful lot of talk about having regard to things. To be honest, having regard to something could mean taking on board the patient's every wish or reading the patient's wishes then throwing them in the bin. I am not a lawyer, but I do not think that the phrase "have regard to" means much. If I were a service user, I would have to ask why I should bother writing an advance statement.

Photo of Mary Scanlon Mary Scanlon Conservative

In a moment.

People are fearful of ECT because of the potential side effects, such as memory loss. If a patient writes in an advance statement that they do not wish to have ECT, will the fact that the tribunal has only to have regard to the wishes and feelings of patients but retains flexibility in the interpretation of those wishes mean that the advance statement can be totally ignored?

Photo of Mary Mulligan Mary Mulligan Labour

When I tried to intervene earlier, I was going to talk about patient deterioration and my concern that the ability to take action, even if that action is contrary to the wishes that were expressed previously, is important. Mary Scanlon is suggesting that we should wait until a person is so ill that they need emergency treatment before we do anything.

In relation to the question that Mary Scanlon asked before she gave way, I wonder whether she is aware that Executive amendments that we will come to later in stage 3 deal with additional safeguards around ECT that provide that a patient will not be given ECT without consent and which strengthen the safeguards for patients.

Photo of Mary Scanlon Mary Scanlon Conservative

In that case, I do not see why the minister has any problems with my amendment, which I intend to press.

Photo of Mary Scanlon Mary Scanlon Conservative

Not at the moment.

This is about treating the users of mental health services with some respect. Many of the people who will be liable to receive compulsory intervention are those who have been in and out of mental health services over many years and have built up an enormous amount of expertise. Amendment 114 asks that their wishes be treated with the respect that is due them because of their experience of the service.

I will take the minister's intervention now.

Photo of Murray Tosh Murray Tosh Conservative

The minister is indicating that she no longer wishes to intervene.

Photo of Mary Scanlon Mary Scanlon Conservative

In that case, I have nothing to add.

Photo of Murray Tosh Murray Tosh Conservative

The question is, that amendment 114 be agreed to. Are we agreed?

Members:

No.

Division number 6

For: Adam, Brian, Campbell, Colin, Canavan, Dennis, Crawford, Bruce, Douglas-Hamilton, Lord James, Ewing, Mrs Margaret, Fergusson, Alex, Fraser, Murdo, Gallie, Phil, Gibson, Mr Kenneth, Goldie, Miss Annabel, Grahame, Christine, Hamilton, Mr Duncan, Harding, Mr Keith, Hyslop, Fiona, Ingram, Mr Adam, Johnstone, Alex, Lochhead, Richard, MacAskill, Mr Kenny, McAllion, Mr John, McLeod, Fiona, Monteith, Mr Brian, Morgan, Alasdair, Mundell, David, Neil, Alex, Paterson, Mr Gil, Quinan, Mr Lloyd, Raffan, Mr Keith, Robison, Shona, Scanlon, Mary, Scott, John, Sturgeon, Nicola, White, Ms Sandra, Wilson, Andrew
Against: Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Ferguson, Patricia, Fitzpatrick, Brian, Gillon, Karen, Godman, Trish, Gorrie, Donald, Grant, Rhoda, Gray, Iain, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Jenkins, Ian, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macintosh, Mr Kenneth, MacKay, Angus, Maclean, Kate, Macmillan, Maureen, Martin, Paul, McAveety, Mr Frank, McCabe, Mr Tom, McLeish, Henry, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Peacock, Peter, Peattie, Cathy, Rumbles, Mr Mike, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Smith, Mrs Margaret, Stephen, Nicol, Stone, Mr Jamie, Thomson, Elaine, Watson, Mike, Whitefield, Karen, Wilson, Allan

Photo of Murray Tosh Murray Tosh Conservative

The result of the division is: For 34, Against 58, Abstentions 0.

Amendment 114 disagreed to.

Amendment 754 moved—[Mrs Mary Mulligan]—and agreed to.

Photo of Murray Tosh Murray Tosh Conservative

I have been asked to advise members that a Consumers Association briefing on dentistry will take place shortly in committee room 1.

Meeting suspended until 14:30.

On resuming—