My Lords, in moving Amendment 12, I will speak also to four other amendments in my name included in this group: Amendments 13, 15, 37 and 41.
To set the scene, there is a theme running through all the amendments in this group—not only mine—which is patient empowerment. All of us, I am sure, welcome the fact that patient empowerment is already writ large in the substance of this Bill, and as the changes that it makes are taken forward, as they will be, I am certain that they will be hugely beneficial to patients. However, as we heard in Committee, there remain features of mental health law and practice that give cause for real concern. My contention, which I am sure is shared, is that we should try to do all we can to make sure that the procedures, clinical practice and, if possible, cultures are made as good as they can possibly be in the way that this legislation is drafted.
My Amendments 12 and 13 are identical to amendments that I tabled in Committee. The point of them is to signal something important about the culture of mental health care. Many of us may take for granted that the aim and purpose of treatment in a mental health unit is to promote psychological well-being and recovery and to minimise distress, but we know that there are many patients undergoing treatment for whom distress and psychological trauma are ever-present features of in-patient care, particularly children and young people. The noble Lord, Lord Crisp, reminded us of that earlier. My Amendment 58, which we will debate in a later group, is designed to tackle this problem in a practical way.
The same applies to my Amendment 41, which brings us back to an issue that I am glad to say received strong support from noble Lords in Committee: the need to beef up the provisions in this Bill around advanced choice documents. ACDs are a great idea and I am delighted that the Government have recognised their potential for enhancing patient well-being, because that is what they will certainly do. We know from research that they have the potential to reduce compulsory detention rates appreciably, as well as reducing time spent in hospital. However, as the Bill is now expressed, patients will not be guaranteed an opportunity to create an advanced choice document, if that is their wish. All that we have in Clause 42 is a provision to allow commissioners to make information on ACDs available to people for whom they are responsible. I do not think that that is good enough.
I turn to my Amendment 15 and, in doing so, focus on an issue that has been brought to my attention by the Law Society relating to nasogastric tube feeding of patients in mental hospitals. The central concern here is that the Mental Health Act 1983 contains no specific safeguards for situations where nasogastric tube feeding of a patient is being proposed. That is because it is considered to fall under Section 63 of the Act, which does not require a second opinion appointed doctor. I suggest that this is unsatisfactory.
In January of this year alone, according to the most recent data, there were 1,975 uses of restraint to facilitate nasogastric feeding in England. Furthermore, a recent comprehensive audit of in-patient mental health units in England reported that the duration of nasogastric tube feeding under physical restraint ranged from a single feed to 312 weeks, with a mean duration of 29.1 weeks. In other words, this is an invasive procedure and the degree of invasiveness can be measured not just by the amount of force used but by the length of time for which the treatment lasts.
Professor Phil Fennell outlined the significant gaps in patient protection in the use of nasogastric tube feeding in his 2019 article, The Regulation of Tube Feeding: a Critical Analysis, and this highlighted the need for regulations.to govern the use of nasogastric tube feeding to achieve a more patient-centred approach to what is quite a drastic medical intervention. The same issue was previously raised in 2007 by the Joint Committee on Human Rights, which pointed out that forcible feeding is potentially a breach of Articles 3 and 8 of the convention, and it, too, questioned why it was not subject to regulation in the same way as ECT is under Section 58 of the Act. The response at that time was that the provisions were compliant with the ECHR.
However, this was before the decision in X v Finland, and in this case, the European Court of Human Rights found that Finland violated X’s rights under Articles 5, 8 and 13 of the convention. X was involuntarily admitted to a mental institution and forcibly medicated with nasogastric tube feeding, which the court deemed unjustified and a breach of her rights to liberty and privacy. Additionally, X lacked an effective remedy to challenge the forcible medication. However, the court did not find a violation of her right to a fair trial under Article 6.
The Law Society has put it to me that this highlights the wider need for safeguards, as patient X did not have sufficient avenues for challenging forcible nasogastric tube feeding. It strongly contends—and I agree—that the Bill represents a real opportunity for making a change to the law in a way that creates a direct safeguard for patients consistent with the safeguards applicable to electro-convulsive therapy, and that is what my amendment seeks to achieve.
Finally, I direct the House’s attention to Amendment 37. This returns us to a Committee debate we had on 22 January. The patient voice in mental health care is, I would argue, inherently weaker than it is in other fields of healthcare, and the patient experience that much more determinative of outcomes. That really matters because, as we know from evidence provided by the CQC and many patient-representative groups, the care of patients in mental health settings is frequently underresourced. It therefore carries with it a heightened degree of risk that acceptable standards of care are not always maintained.
In this amendment, which replicates the amendment I tabled in Committee, I am putting forward the idea that, if every patient discharged from a mental healthcare setting were to be given the opportunity to rate, comment on and provide constructive feedback on the treatment they had received while in hospital, the value to the system and the potential value to the patient could be very significant.
I know that the Minister does not take issue with this. Indeed, I am sure she is sympathetic to what I have said. What I must question, though, is the premise of her response to me in Committee. In that response, she sought to argue that the visits and interviews with patients carried out by the CQC fulfil a function that, in terms of transparency and empowerment of patients, is identical to the kind of debriefing that I am arguing for.
Having heard what I have heard from well-informed patient groups, I must beg to disagree. The reality of the CQC’s encounters and interviews with patients is an evidence-gathering process that is all too often skewed. Here are some of the comments from patients that have been relayed to me. “I know when we had a CQC visit, the nursing staff would steer CQC in the direction of patients who would reflect positively about the ward.” Someone else said: “A lot of the time, if you speak to the CQC, they will have staff present at the same time, so you can’t be honest”.
Patients have also expressed doubts about the effectiveness of the CQC’s monitoring process in general. I will share a couple of typical comments. “There’s been examples of where it took three to four years of the same consistent reports”—of a mental health unit—“for the CQC to eventually do something about it”. And again, “If this process”—of the CQC—“was working, young people would be having a much better experience”.
It has been put to me that one of the differences between the process adopted by the CQC and the debriefing process that my amendment proposes is that the CQC does not take an individualised approach to its monitoring. I am sure that the CQC is sincere in wanting to speak to people about their poor experience of hospital care, but, in practice, people say they have often felt dismissed when speaking about what they have experienced.
There is a wider point here as well. In the words of another patient: “De-briefing isn’t just complaining. It’s discussing and reflecting on events during admission and the patient’s experience in order to learn from it. A complaint is given and then dealt with behind the scenes, whereas a de-brief is a reflective discussion between multiple people where the young person is an active participant in discussing their own experience”. Another said: “It gives people the room to process things”.
In practice, the independent mental health advocate would take responsibility for the debriefing process. The Minister expressed concern about that and about the risk of overburdening those individuals. I appreciate that concern, but suggest that a conversation with a patient, or former patient, taking the form of a debriefing is squarely in line with the existing role of an independent mental health advocate. It would not be asking him or her to do appreciably more than they do already. As one patient put it:
“The IMHAs doing the de-briefing is already technically what they do, there just isn’t a formal name to the process … They don’t need any specific training to be able to manage the process as they already know what to do. They are there to advocate”
for them.