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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
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.