Mental Health Bill [HL]

Baroness Blake of Leeds Excerpts

Report stage
Monday 31st March 2025 Lords Chamber

Moved by

[Baroness Blake of Leeds]

16: Clause 18, page 24, line 31, leave out from beginning to end of line 2 on page 25 and insert—
“(2) The treatment may be given to a patient who has capacity to consent to the treatment only if—(a) the patient has consented to it, or(b) the patient has not consented but a certificate has been given by a second opinion appointed doctor under subsection (4).(3) The treatment may be given to a patient who lacks capacity to consent to the treatment only if—(a) the giving of the treatment would not conflict with any of the following—(i) a valid and applicable advance decision, or(ii) a decision of a donee or deputy or the Court of Protection, or (b) the giving of the treatment would conflict with such a decision but a certificate has been given by a second opinion appointed doctor under subsection (5).”Member's explanatory statement
This amendment clarifies that the requirement for a certificate by a second opinion appointed doctor does not apply to urgent electro-convulsive therapy if: (1) the patient consents, or (2) the patient lacks capacity but the treatment does not conflict with an advance decision etc.

[Baroness in Waiting/Government Whip (Baroness Blake of Leeds) (Lab)]

My Lords, I will move Amendment 16 and speak to all the amendments in this group in the name of my noble friend the Minister. I speak first to Amendments 17, 18, 19, 21, 36, 39, 45, 64, 65, 66 and 67, which follow recommendations made by the Delegated Powers and Regulatory Reform Committee and the amendments tabled by the noble Lord, Lord Scriven, in Committee.

Amendments 17, 18, 19, 21, 36, 39 and 45 remove the Henry VIII power from the Bill that allowed the Government to set out in regulations the exceptional circumstances where a second opinion appointed doctor’s certificate is not necessary to administer urgent and compulsory electroconvulsive therapy, and instead sets out these limited circumstances in the Bill. These situations arise when the regulator determines that there are exceptional circumstances delaying the appointment of a second opinion doctor and the treating clinician deems urgent electroconvulsive therapy necessary to save the patient’s life. In recognition of the seriousness of the situation, the new process will also ensure that these exceptional cases are monitored and reported on by the regulator.

Amendments 64, 65, 66 and 67 ensure that, where regulations are made under the power to make consequential provision to amend or repeal primary legislation set out in Clause 52, they will be subject to the affirmative scrutiny procedure. Amendment 65 extends this to Clause 53, which confers equivalent power on Welsh Ministers in areas of devolved competence.

I turn back to Amendment 16, which addresses concerns from stakeholders that the Bill was not explicit on whether urgent electroconvulsive therapy is permitted when the person is consenting or lacks capacity but treatment is not in conflict with a decision to refuse it—as is currently the case under the Act. This amendment makes clear that treatment in these scenarios is still permitted, addressing any possible risk of misinter-pretation.

On Amendments 20 and 22, the Bill as introduced expressly permits remote assessment by the second opinion doctor’s service only for urgent compulsory electroconvulsive therapy. These amendments clarify that remote interview and examination are permitted for all second opinions provided by people appointed by the regulator. Remote interview and examination may be used only when deemed appropriate. If not, these functions must be conducted in person. Specific guidance will be provided in the code of practice.

Turning to Amendment 26, approved mental health professionals have raised concerns that the requirement for the nominated person to sign an appointment instrument in the presence of a health or care professional “witness” could result in delays to having a nominated person in place, which could undermine the safeguard and place geographical restrictions on who could take the role. This could mean, for example, that patients who are placed in out-of-area hospitals have greater delays in appointing a nominated person.

--- Later in debate ---

[Earl Howe (Con)]

My Lords, the House will be grateful to the Minister for these government amendments, which, as the noble Baroness made clear, cover two principal policy issues. Accordingly, I have two sets of queries.

On the changes for the rules for authorising electroconvulsive therapy, I am sure it is not the Government’s intention in any way to water down the safeguards surrounding the administering of ECT. However, in relation to Amendments 16 and 17, taken together, can the Minister reassure me? The Bill, as modified by the proposed amendments, will posit that there could be circumstances in which a patient who has the capacity to consent to ECT but who has not consented to it could nevertheless find their refusal to treatment overridden by the decision of a single treating clinician. Even in a situation where the judgment of the clinician was that ECT was necessary to save the patient’s life, it seems to me a significant change from the current rule whereby the decision of a second opinion appointed doctor is required in all cases where it is proposed to administer ECT to a non-consenting patient who has the capacity to consent.

Amendment 17 makes it clear that the regulatory authority—the CQC, in other words—may give permission for ECT to be administered only on the say-so of a single doctor where a SOAD is not available and “exceptional circumstances” apply. I will not ask the Minister to define what “exceptional circumstances” might consist of, but it is to be assumed that a primary example of such circumstances might be when time was of the essence and no SOAD could be located soon enough to avoid exacerbating the risk of harm or death.

So my questions are, firstly, has this proposed change been prompted by a general awareness across the mental health sector that the availability of SOADs can frequently prove a problem in circumstances where urgent decisions are needed? In other words, to put it bluntly, are we being asked to change the law because of habitual shortcomings in NHS communication arrangements? I would be concerned if that were the case.

Secondly, what guidance, if any, will the CQC formulate for itself to ensure that, when its decision is sought to temporarily waive the requirement for a SOAD, it will not do so just on the basis of a SOAD being unavailable? Will it also commit itself to a standard procedure whereby it will seek at least some background detail from the treating clinician of the case before him or her, such as the reasons why they consider that administering ECT to that particular patient carries particular urgency? In other words, can we be reassured that the treating clinician’s opinion will be subject to at least a modicum of testing and cross-questioning before the CQC issues the go-ahead for ECT to be administered? I hope so, because anything short of that could turn into a tick-box exercise.

The other government amendment on which I would appreciate further clarity is Amendment 26, which

“changes the process for appointing a nominated person”.

One of the changes proposed is that the various statements and signatures required for appointing the nominated person no longer have to be contained in the same instrument. The other is that the nominated person’s signature no longer has to be witnessed. I was grateful for the Minister’s explanation, but it implies that the written instrument that appoints the nominated person and is signed by the patient in the presence of a witness can be executed without the nominated person themselves being in the room, or indeed anywhere near. At the moment, the Bill says:

“The instrument appointing the nominated person must … contain a statement, signed by the nominated person in the presence of”


the same person who witnesses the signature of the patient.

I previously assumed that the reason for that provision was the responsibility that the Bill places on the witness—quite a serious responsibility—to ensure, as far as possible, that the nominated person, whoever they are, is a fit and proper person to act in that capacity. It would appear now, with this amendment, that there is no need for the witness even to clap eyes on the individual who is nominated. How can that be right? Without at least meeting the nominated person, how can any self-respecting witness certify, hand on heart, that, in the words of the Bill, they have

“no reason to think that the nominated person lacks capacity or competence to act as a nominated person,”

or that they have

“no reason to think that the nominated person is unsuitable to act as a nominated person”.

Are they simply meant to take the patient’s word for it?

This alteration in the wording raises all sorts of question marks in my mind, given the concerns expressed by noble Lords in Committee about misplaced loyalty towards a particular individual, a naivety on the part of a child or young person, or even some degree of psychological manipulation of a young person—for example, someone who makes it their business to set a child against their own parents.

In Committee, the Minister herself emphasised the need for the law to prevent exploitation and manipulation. While I did not at the time think that her response was completely reassuring, I saw it at least as an acknowledgement that the role of the witness could not be fulfilled properly without some sort of contact with the nominated person. Was I right or wrong on that? It would be helpful if the Minister could explain how my misgivings in this area, about the way in which the nominated person procedure comes to be implemented in practice, might be allayed.

[Baroness Blake of Leeds (Lab)]

My Lords, I thank the noble Lord, Lord Scriven, for his comments and express my thanks also for the many contributions made by noble Lords around the House.

The noble Earl, Lord Howe, asked some searching questions. I think the main thrust of his comments was to look for reassurance that due diligence will be gone into in all of the areas that he raises. I am not sure that I can answer every line in detail, but I want to reassure him in particular about the nominated person question, which I know has caused him enormous concern.

In addition to what I have said, I emphasise that there is no intention at all to water down the safeguard, and that Amendment 26 will make sure that patients get access to a nominated person quicker, along with all the rights and powers that entails, meaning that safeguards provided by the role will not be delayed. That is the crucial point that we have to factor in as to why these amendments are deemed necessary. As he quite rightly says, this is particularly important for patients and those who may be subject to out-of-area placements.

The change that we are bringing in is that the nominated person’s signature does not need to be witnessed in person. None of the safeguarding checks is changed in any way by this. In answer to the noble Lord’s concern, we would expect that, in the majority of cases, the witness will still meet the nominated person face to face. In exceptional circumstances, where this is not possible, we believe that it is better to be able to appoint a nominated person, subject to all the appropriate safeguarding checks, than to have to wait until a person can have their signature witnessed.

A second opinion doctor is not currently required for urgent and compulsory electroconvulsive therapy; this is new under the Bill. I need to emphasise this point. What the amendment does is sets out the exceptional circumstances where a second opinion appointed doctor—sorry, it is a bit of a mouthful—is not required. I hope that gives some clarification.

We have to make sure that these are all taken in the round. I reassure the noble Earl, Lord Howe, and noble Lords across the Chamber, that many of these are regarded to be due to exceptional circumstances, where time is of the essence.

As to whether some of these provisions are based on failure, it is from learned experience and bringing together everyone who has a view to make sure that everything we bring forward is in the best interests of the patient. That is the crucial thing. This is where the detailed work will be done under the code of practice, bringing together all the different parties in a measured way. It will take a few months to do this. That is critical, so that we can all be reassured that the processes are brought into play.

I can understand the concern about making sure that communication is there in situations of stress, but I believe that these amendments are designed to address this issue, with, as I have said, the patient’s interest absolutely in the forefront. There will be opportunities as the code of practice is put together for us to make sure that our endeavours are followed, bringing the best opinion together with the best interest of the patients.

Amendment 16 agreed.

Moved by

[Baroness Blake of Leeds]

17: Clause 18, page 26, line 4, at end insert—
“62ZAA Life-saving section 62ZA treatment: modified procedure in exceptional circumstances(1) Where—(a) a request is made to the regulatory authority under section 56B for the appointment of a second opinion doctor to perform the function of giving a certificate under section 62ZA in relation to any treatment, and(b) the regulatory authority determines that there are exceptional circumstances which mean that there will be a delay in appointing a second opinion doctor,a function of a second opinion appointed doctor under section 62ZA in relation to the giving of a certificate containing a statement under subsection (4)(c)(i) or (5)(c)(i) of that section may be performed, instead, by the approved clinician in charge of that treatment.(2) But no treatment may be given in reliance on a certificate given by the approved clinician by virtue of subsection (1) once the second opinion doctor has been appointed under section 56B.(3) Each time a patient is given treatment in reliance on a certificate given by the approved clinician by virtue of subsection (1), the managers of the hospital or registered establishment in which the treatment is given must notify the regulatory authority of that treatment as soon as reasonably practicable.(4) The regulatory authority’s annual report under section 120D must include—(a) a statement of how many times the regulatory authority has made a determination under subsection (1)(b) in the period to which the report relates and a summary of the reasons why any determinations have been made, and(b) a statement of how many times during that period treatment has been given in reliance on a certificate issued by virtue of subsection (1).”Member’s explanatory statement
Where exceptional circumstances mean that a second opinion appointed doctor is not available to authorise life-saving electro-convulsive therapy, this amendment would allow the approved clinician to do so. The amendment replaces the regulation-making power currently in new section 62ZB(1).

--- Later in debate ---

Moved by

[Baroness Blake of Leeds]

22: After Clause 18, insert the following new Clause—
“Remote assessment for treatment(1) Section 119 (practitioners approved for Part 4 and section 118) is amended as follows.(2) In subsection (2)(a), for the first “and” substitute “or”.(3) After subsection (2) insert—“(2A) A person authorised by subsection (2) to carry out an interview or examination may, to the extent that they consider appropriate, carry it out—(a) by live audio link, or(b) by live video link.”(4) In subsection (3), before the definition of “regulated establishment” insert—““live audio link” , in relation to the carrying out of an interview or examination, means a live telephone link or other arrangement which enables the patient and the person carrying out the interview or examination to hear one another;“live video link” , in relation to the carrying out of an interview or examination, means a live television link or other arrangement which enables the patient and the person carrying out the interview or examination to see and hear one another;”.” Member’s explanatory statement
This new clause would enable remote assessments to be carried out by certain people for the purpose of non-urgent electro-convulsive therapy and certain other treatments. It also replaces clause 18(7) which makes equivalent provision for urgent treatment.