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Section 54 — Measures that may be authorised

Part of Mental Health (Care and Treatment) (Scotland) Bill: Stage 3 – in the Scottish Parliament at 12:15 pm on 19th March 2003.

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Photo of Mary Mulligan Mary Mulligan Labour 12:15 pm, 19th March 2003

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.