Mental Health Bill [ Lords ] (Fourth sitting)

Debate between David Burton-Sampson and Luke Evans

Committee stage
Thursday 12th June 2025 Public Bill Committees

[Dr Evans]

I am grateful for the opportunity to scrutinise clauses 13 and 14. Clause 13 will make significant amendments to how medical treatment is administered under the Mental Health Act 1983 in circumstances in which a patient refuses, or is deemed to have refused, that treatment. The clause points us to significant questions about autonomy, capacity and compulsion. I hope that we can explore those issues in a way that does justice to the patients affected and to the clinicians working under the framework.

Under current law, in particular section 63 of the Mental Health Act, a patient detained under the Act can be given medical treatment for their mental disorder without their consent, even if they have capacity to refuse. That includes in situations where the patient has made a valid and applicable advance decision, or where a donee under a lasting power of attorney, a court-appointed deputy or indeed the Court of Protection itself has indicated that the treatment should not be given.

That power is curtailed only for certain treatments, such as electroconvulsive therapy, which falls under section 58A, and some surgical procedures under section 57, where either consent or a second opinion is already required. We will be debating those separately. Moreover, in the case of psychotropic medication under section 58, treatment can typically be given for up to three months without any second opinion, even if the patient objects.

The clause will introduce a proposed new section 57A, significantly shifting the landscape. It will extend safeguards to cases in which a patient has capacity but refuses treatment, a valid and applicable advance decision refuses treatment, or a refusal is issued by a donee, a deputy or the Court of Protection. In such cases, treatment could be given only if a second opinion appointed doctor certifies that the treatment is clinically appropriate; there is a “compelling reason” to give it, such as no acceptable alternative; and the process has followed a newly required clinical checklist.

This is a clear move to give greater legal weight to patient choice and prior decision making, echoing the long-standing principles of the Mental Capacity Act 2005. It would also mark a significant tightening of powers under section 63, making it harder to override refusals of treatment, and in effect it would end the practice of giving compulsory medication in the first three months without external oversight, at least where a refusal or conflicting decision exists.

It is worth touching on the interaction between the Bill and the Mental Capacity Act. We have talked about that framework before, but it allows for advance decisions to refuse treatment and recognises the authority of donees under a lasting power of attorney, court-appointed deputies and the Court of Protection to look at best interests. Historically, however, the Mental Health Act 1983 has operated in parallel, and at times in conflict, by allowing compulsory treatment for mental disorder, even in cases where patients have capacity. By inserting proposed new section 57A, the clause attempts to bridge that gap by preventing certain treatments from being administered where they would conflict with an advance refusal or decision.

That represents a welcome shift, but there are some concerns to which we need to turn our attention. For example, the “compelling reason” threshold is undefined in statute and could allow significant variation in interpretation. There is a reference to the checklist in section 56A, but—forgive me—I do not believe that that quite covers the definition. There is also a risk that, in practice, time pressures or institutional cultures may erode the intended safeguards, in particular if urgent treatment provisions under section 62 are overused, so I will discuss those a little further in detail.

I recognise that the intent behind clause 13 is to place the principle of autonomy and choice at the heart of mental health care—that is a welcome and overdue shift—but given that it introduces the concept of compelling reason to override a refusal of treatment, will the Minister clarify how “compelling” will be interpreted in practice? Will statutory guidance define the term to ensure consistency, or will it be left to the discretion of individual clinicians and the second opinion appointed doctor?

Secondly, the clause strengthens the role of the SOAD, requiring not just clinical oversight but legal and ethical judgment, including engagement with advance decisions and decisions of legal proxies. What training and support will be provided to SOADs to equip them for the expanded roles? How will the Government ensure that the system is properly resourced to avoid delays?

Thirdly, will there be a clear right of appeal or review for patients or their legal representatives when an SOAD certifies treatment in the face of an objection? I am conscious that there are real-world examples. For instance, let us take the case of a patient with bipolar disorder who is detained under the Mental Health Act. When they are in a stable state, they might clearly and calmly refuse a particular medication because they have experienced harmful side effects from it in the past—the Minister even used that as an example. At that point, they have capacity and their decision is valid. However, during a later episode of acute illness, they might temporarily lose capacity, and in that window the clinician would potentially override their earlier decision, even if it was made with full understanding.

This amendment aims to protect such refusals, but unless the law is clear about how to treat prior capacitous decisions during periods of incapacity, there is a risk that well-considered patient choice could still be sidestepped. This problem will get only more common, given the number of people with dementia and acquired brain injuries.

Fourthly, the clause enhances safeguards, which is crucial, but it could result in unintended harms. What assessment has been made of the risk that necessary treatment may be delayed or denied in complex cases, especially where SOAD access is limited or where there is disagreement about whether an advance decision is valid or applicable? Although I support greater emphasis on patient autonomy, we must consider those at the greatest risk of harm. Do the Government believe that clause 13 strikes the right balance between protecting liberty and ensuring prompt, effective care for the most acutely unwell? Have they any concerns about what that could mean for public safety? Has an impact assessment been carried out on what that could mean in the real world and the implications, given the recent high-profile cases that we just talked about?

Clause 14 shortens the period before a second opinion is required for certain types of treatment from three to two months. That is a positive step in principle, and ensures that patients who either lack capacity or have not consented are not left too long without independent oversight. It also allows, where clause 13 applies, for a single certificate to be issued by the second opinion appointed doctor, which covers both standard review under section 58 of the Mental Health Act and the more complex safeguards in proposed new section 57A. That may help to reduce duplication and administrative burdens.

The table on page 25 of the explanatory notes gives an overview of how that might work, but I would welcome reassurance on a few points. How will the distinct legal tests, such as assessing a patient’s capacity, rather than determining a compelling reason for overriding an advance decision, be kept clear and robust in one single combined certificate? What safeguards will be in place to ensure that streamlining does not weaken the new protections in clause 13?

Let us imagine that a patient has made an advance decision to refuse a particular antipsychotic medication—let us call it medication A. They are detained under the Mental Health Act, and the clinical team wants to give them medication A anyway. Because the patient lacks capacity and the proposed treatment goes against a valid advance decision, the special safeguards under proposed new section 57A apply, yet at the same time it has been nearly two months since the patient started treatment, so a second opinion under section 58 is also needed to check whether any medication is appropriate more generally. Clause 13 allows for those two approvals—one for the general treatment under section 58 and one for treatment despite the patient’s known refusal under proposed new section 57A—to be combined into one certificate.

The concern is that, in streamlining, the different legal and ethical issues might be collapsed into a broader decision, making it harder to see whether the patient’s advance refusal was properly considered and whether the decision to override has met the compelling reasons test. Can the Minister specify how that might work, given that there will now be one certificate? Clinicians and reviewers might unintentionally treat the refusal as just another case of lack of capacity, rather than the serious, rights-based objections that require extra scrutiny.

On the issue of practicality, with the review period being brought forward by a month, are the Government confident that a second opinion system is resourced to meet the demands without compromising quality? I could go on, but for the sake of the Committee, I will not.

[David Burton-Sampson]

I rise to speak in support of clauses 13 and 14. I have talked briefly today about the ongoing Lampard inquiry. There are two examples that are now public. Patient A was detained under the Mental Health Act for more than five years without a clear therapeutic plan and was subjected to prolonged seclusion and chemical restraint. The inquiry found that, despite the family raising concerns, there was a lack of clinical oversight and a failure to review detention and treatment status regularly. Patient B, a young man detained for over two years, experienced frequent use of rapid tranquillisation and segregation. The patient’s condition deteriorated, and that was documented, but there was no change to his care approach and no treatment review at all.

I welcome the clauses, but I put to the Minister how vital it is that we ensure that these reviews happen. There is a three-month review process at the moment, but in those two cases it did not happen. I also welcome shortening the time to two months. It is vital that the three-pronged approach that is outlined in the Bill happens. We have heard that no one size fits all—individual care is so important. Establishing the capacity and competency of an individual is vital. Every patient is different and they should be treated appropriately.

It is important to have appropriate review mechanisms in mental health care. Shortening the review process to two months for patients ensures that the therapeutic and clinical treatment remains appropriate. Hopefully, it also helps to lead to the desired quicker recovery period for the patient, but if not, it helps to adapt the treatment if a stronger or different type of treatment is required. The key is looking at ways to get people out of care as quickly as possible. Reviewing care regularly is really important. I welcome clauses 13 and 14.