Stephen Kinnock
MP for Aberafan Maesteg · Labour · United Kingdom
“I thank the shadow Secretary of State for her kind words and look forward to our exchanges across the Dispatch Box. I am ready to engage with her on getting the maximum benefits for the people of Wales.”
“I thank the right hon. Lady and look forward to working with her. My understanding is that there were challenges around the helicopter capability. Decisions were taken by Natural Resources Wales some time ago to change the way that the tendering for helicopter capability works. We certainly need to look at that.”
“I thank my right hon. Friend for his question. Like him, I pay tribute to all those involved in the collective and heroic response to the wildfires.”
“I thank the right hon. Lady for her question. Many of the ideas coming forward for devolving power right across our United Kingdom, beyond Cardiff Bay and Holyrood, are very exciting, and I look forward to exploring them with her.”
“Just to be clear, this is not about staying out of the issue; it is about respecting the devolution settlement, but being prepared to work constructively where we can in partnership with the Welsh Government. The hon.”
“I know about and welcome the right hon. Gentleman’s strong connections to Wales. I recognise the connectivity benefits that WSMR’s proposal could deliver, particularly for passengers in Wales and the west midlands.”
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“I will start by commenting on amendment 12, which was tabled by the hon. Member for Winchester. We do not consider the amendment necessary, as section 13(2) of the Mental Health Act 1983 already requires an “approved mental health professional” to consider all the “circumstances of the case” before making an application for admission, which could include the appropriateness of the setting. Clause 8 embeds the principle of therapeutic benefit into the Bill by providing a new definition of “appropriate medical treatment”. That requires that there must be “a reasonable prospect” of therapeutic benefit to justify detention for treatment, and that medical must be “appropriate in a person’s case”. We would expect a setting in which someone is going to be detained to be considered as a part of those considerations.”
“Sections 50 to 53 of the 1983 Act provide for the remission of prisoners or other detainees with severe mental health needs back to their prison or other place of detention; or, where relevant, direct their release where no effective treatment for the mental disorder can be given. Those provisions differ slightly from the detention criteria in the Bill, because in practice this cohort of patients may refuse to engage with treatment or behave in a disruptive manner such that treatment cannot practically be given. Clause 9 standardises the type of treatment to “appropriate medical treatment” for consistency with the rest of the Act, which will allow the therapeutic benefit changes in clause 8 to flow through to transfer decisions. This change has no other practical or legal effect and is technical in nature.”
“I was intending to come to the questions that the hon. Gentleman and others asked, but as he has asked that now, I can tell him that the revised detention criteria and definition of appropriate medical treatment do not exclude patients with uncertain treatment outcomes, as long as they have a psychiatric disorder. Treatment must offer a reasonable prospect of benefit, considering both its purpose and likely outcome. The introduction of the principle of therapeutic benefit is aimed at ensuring that care and treatment provided under the Act will promote recovery and facilitate patients to get better so that they can be discharged as soon as possible. That applies right across the board on the basis of the psychiatric disorder. I will now turn to clause 9.”
“Friend may also be interested to look at the quality transformation programme, which seeks to address some of the challenges that she mentioned. In the light of those comments, I hope that hon. Members will not press their amendments. I commend clauses 8 and 9 to the Committee.”
“Section 131A of the Mental Health Act 1983 places a duty on hospital managers to ensure that the hospital environment suits the patient’s age and needs. Current efforts, including NHS England’s quality transformation programme, aim to address the root causes of poor in-patient care by working with patients, families and professionals. That is a roundabout way of answering the question, but fundamentally, the hospital manager has a duty to ensure that the environment suits the patient’s needs. Those needs will range from the most complex and challenging 1.5% of cases that my hon. Friend the Member for Thurrock mentioned through to the cases of others who may have milder disorders or challenges. Needs must be met across that landscape, and the duty is on the hospital manager to ensure that they are. My hon.”
“Friend the Member for Thurrock raised several important points. She wisely said that the clause is about not just the principle of therapeutic benefit, but seeing the person as an individual and the principle of doing least harm. I thank her for those points, which are important for the Committee to take on board. My hon. Friend asked about the impact of the therapeutic benefit provisions on the 1.5% of people with particularly complex needs. That is an important question, and to some extent touches on the intervention by the hon. Member for Hinckley and Bosworth about what we do in those really challenging situations. Where hospital admission is needed, the fundamental principle is that we believe it must be therapeutic, the least restrictive option and for the shortest time possible.”
“In many ways, that is a question for clinicians, because they always have to make judgments in individual cases. In tragic cases such as eating disorders, at times it gets to the point where a person cannot be saved. If a patient is refusing to eat, it is notoriously challenging for clinicians to try to get that position reversed through talking therapies or other forms of treatment. Is about how we put in place legislation and a code of practice that give the system the best possible steer while recognising that clinicians make decisions on a daily basis in reacting to the circumstances that they face. I will take the hon. Gentleman’s point away and think about it, but I wonder whether there is a definitive answer to his question because of that interplay between the macro system and the micro challenges within that system. My hon.”
“It is intended to make clear the distinction between the definition and role of the “responsible clinician” and the new definition of a “community clinician”, who will have an increased role in managing patients on community treatment orders. The responsible clinician would retain overall responsibility for the patient’s care, including in hospital, while the community clinician would be responsible for the patient in the community. The community clinician is involved in decision making around community treatment orders, which we will discuss in greater detail in relation to clause 22, alongside the responsible clinician. It is therefore important to explain how a responsible clinician is nominated. I commend clause 10 to the Committee.”
“Under clause 10, a responsible clinician is an “approved clinician”, which refers to a mental health professional, usually a consultant psychiatrist, who is approved by or on behalf of the Secretary of State for the purposes of the Mental Health Act and has statutory roles and responsibilities. The responsible clinician has overall responsibility for a patient’s care under the Act. Only they can make certain decisions, such as renewing a patient’s detention or placing them on supervised community treatment. The clause seeks simply to clarify the current position on how a responsible clinician is assigned overall responsibility for a patient’s care, and makes no practical change to the role of a responsible clinician or to how they are appointed.”
“Clause 10 accordingly ordered to stand part of the Bill. Clause 11 Making treatment decisions Question proposed, That the clause stand part of the Bill.”
“If a patient wishes to challenge any aspect of his or her treatment, that would be the role of the IMHA, once they are in place. The issue of unintended consequences brings us back to the code of practice. I emphasise the two tiers—or three tiers, really—of consultation that will happen. First, there will be consultation with a wide range of stakeholders, including approved mental health practitioners, psychiatrists, clinicians and all the representative bodies. That will bring us a very well-developed draft of the code of practice. We will then go to public consultation, which will be open to input from anyone who has a view, and then to Parliament. That will give us a fairly high degree of assurance that the code of practice will address any area where there is a risk of unintended consequences. Question put and agreed to.”
“I thank the Opposition spokesman. The role and nomination of the responsible clinician are well established and represent current practice, and the clause seeks merely to clarify the current position in legislation in order to avoid confusion regarding the roles of the existing responsible clinician and the community clinician, who will have new roles under the reforms to community treatment orders. I therefore think that the answer to his question—whether the clause will somehow change the clinical role of hospital managers, or whether hospital managers will be able to move the goalposts in how the nomination process happens—is no. The measure is simply a continuation of a well-established practice. I think that challenging the nominated clinician would be a role for the independent mental health advocate.”
“We consider the checklist fundamental to delivering the guiding principle of patient choice and autonomy. We therefore consider it necessary to put the checklist on the face of the Bill. That was the approach taken with the best interests checklist under the Mental Capacity Act 2005, which in many ways is analogous. That checklist has come to be widely recognised and highly regarded by practitioners. I commend the clause to the Committee.”
“Where the patient is too unwell and lacks the capacity or competence to make decisions concerning their treatment, the checklist will require the clinician to consider any wishes, feelings, views and beliefs that they think the patient might have had if they had had capacity. They might establish this by consulting with those close to the individual or looking at their advance choice document. The checklist represents best practice, but sadly it does not represent standard practice. The independent review identified multiple incidents of patients feeling disempowered and unsupported to share their wishes and feelings, and unfairly ignored when they did. That can undermine the patient’s sense of self-worth, their recovery and their trust in mental health services.”
“Clause 11 will introduce a new clinical checklist that the patient’s responsible clinician must follow when making decisions about a patient’s treatment. This seeks to put the patient at the heart of clinical decision making. Specifically, the checklist will require that the clinician supports the patient to engage in decision making concerning their treatment. That could include nursing, psychological interventions, specialist care and medication. They must also consult with those close to the patient to consider the patient’s wishes, feelings, beliefs and values, including those expressed in advance, and avoid making decisions based solely on factors such as the patient’s age or condition.”
“It is important that we do not say that family consultation and engagement with the patient are opposed to public protection—in fact, they are two sides of the same coin.”
“We recognise that compulsory treatment is sometimes necessary to get a person well again, including by managing the potential risk that they might pose to themselves or others. My other point is that there is not a binary choice between consulting and engaging with the patient, and enhancing and consolidating public safety; very often, the two go together. One of the learning points from the tragic Nottingham incident is that there was not enough consultation with Mr Calocane’s family. If there had been, there might have been opportunities to note his episodic behaviour and the fact that he was not always taking his medication. Had the family been better consulted, it would have enhanced public protection and safety.”
“I will make a number of points on that. First, the clinical checklist does not bind clinicians to following the wishes of patients; it requires that clinicians consider them when deciding on the patient’s treatment, but, by definition, a checklist is not binding. If a preferred treatment is not clinically appropriate or feasible, clinicians must explain why and, where possible, discuss alternatives with the patient or their loved ones. The purpose of the checklist is to ensure that the patient’s wishes play a more central role in clinical decision making, as we are aware that that is not always the case. However, the checklist does not bind the clinician to the patient’s wishes, nor does it prevent the use of compulsory treatment.”
“May I say what a pleasure it is to follow my hon. Friend the Member for Thurrock? I found her contribution incredibly insightful. She is a tremendous asset to the Committee and indeed to the parliamentary Labour party, we are fortunate to have her with us on the Committee. The Opposition spokesman mentioned a number of cases, including Nicola Edgington and Valdo Calocane, so I will take the opportunity to express my condolences to those who were so terribly affected by those tragic events. We are in ongoing engagement with the families of Barnaby Webber, Grace O’Malley-Kumar and Ian Coates, and it is appropriate that we take a moment as a Committee to reflect on the terrible tragedy they have gone through and to express our condolences to them. The Opposition spokesman’s question was, broadly speaking, about risk and public safety.”
“Gentleman asked whether the second opinion doctor would confirm that the checklist had been complied with by the approved clinician: yes, and that must be documented in the second opinion doctor’s certificate. He also asked whether we will support clinicians with statutory guidance. Yes, we will provide guidance on the delivery of the checklist in the code of practice. Question put and agreed to . Clause 11 accordingly ordered to stand part of the Bill .”
“I can absolutely confirm that the Government’s understanding of the way in which the system must function is that, if any risk at all to public safety is perceived, that must be documented. The risk to others and self must be assessed and documented, and that then informs the care and treatment plan. It is a basic expectation of the professional management of a particular patient that any risk identified to public safety and protection must be in there. However, I take the hon. Gentleman’s point on whether or not it should be in the Bill. I will come back to him on that, because I would be rather surprised if it were not made very clear somewhere that that is a basic expectation; if it were not, that would obviously need to be looked at, but I am reasonably confident that it is. The hon.”
“The clause will simply clarify existing legislation concerning the second opinion appointed doctor so that it more closely reflects current practice and terminology. It sets out the role of the regulatory authority in appointing a second opinion appointed doctor and the criteria that the second opinion appointed doctor must meet, and it updates terminology so that it is more in keeping with that used by practitioners. I therefore commend clause 12 to the Committee.”
“We are greatly encouraged by the reforms it has made so far, and we particularly welcome the appointment of Dr Arun Chopra as the CQC’s first chief inspector of mental health, which will improve the voice of mental health patients and help to better uphold their rights. We are confident that those changes will ensure that the CQC is better placed to regulate mental services. Question put and agreed to. Clause 12 accordingly ordered to stand part of the Bill. Clause 13 Medicine etc: treatment conflicting with a decision by or on behalf of a patient Question proposed, That the clause stand part of the Bill.”
“On the Opposition spokesman’s question about a specific timeframe, the wording of the clause— “as soon as reasonably practicable”— is a sufficient and fairly strong steer to the system that avoids the need to tie our hands with a specific timeframe. Consistency, training and monitoring are going to be important elements of the code of practice. We need to ensure that those questions are answered and that those are put in place. On the hon. Gentleman’s question about the CQC, we are grateful to Dr Penny Dash and Professor Mike Richards for their recommendations, which the CQC has accepted in full.”
“For those reasons, I commend clauses 13 and 14 to the Committee.”
“Currently, if a patient lacks capacity or competence to consent, a second opinion appointed doctor is to assess whether their treatment is appropriate, three months after the treatment course began. Although that is an important safeguard, it happens too late in a patient’s treatment course. Clause 14 will shorten the timeframe for that safeguard so that it occurs after two months, rather than three. The timeframe within which the patient’s responsible clinician must review and provide a certificate indicating that the patient is consenting to medication is also being shifted from three months to two months. By introducing scrutiny at an earlier point in the process, we will better protect those patient groups who may be very unwell and highly vulnerable. That is particularly true for patients who lack capacity to consent.”
“Many clinicians already care for patients in this way, but others do not. Where the clinician thinks that there is a compelling reason to treat compulsorily, a second opinion doctor, appointed by the regulator, must confirm this, as well as other matters, before treatment can go ahead. This marks a significant shift away from the current system, in which compulsory treatment can last three months before a review by a second opinion doctor is required. We believe that the measure will help to cement the desired cultural change that we all aim to achieve. The clause is critical to making the patient’s voice more central to their treatment. Clause 14 will ensure that where a person does not or cannot agree to their treatment under the Mental Health Act, they receive the safeguard of a second opinion doctor appointed by the regulator.”
“Clause 13 seeks to shift the culture around administering compulsory medication to patients under the Mental Health Act, while maintaining the power to do so. Under the clause, a “compelling reason” will be required to overrule a patient’s refusal of a medication, whether that refusal is made with capacity at the time, in advance or by a representative, for example through a lasting power of attorney. A clinician will be able to overrule a decision to refuse medication only if they cannot identify a clinically viable alternative or one that is acceptable to the patient. The aim is to encourage clinicians to take the time to consider alternative medications, for example by speaking with the patient or those close to them, or consulting their advance choice document. That will potentially avoid the need for non-consensual medication.”
“The power to give compulsory treatment is sometimes necessary to get a person well again, but unfortunately some clinicians can too easily resort to this course of action without considering alternatives. Compulsory, and sometimes forced, treatment can cause distress and trauma to the patient, and some say that this has caused them to lose trust in mental health services. One individual told us that she was forcibly treated with a medication, despite its having caused serious side effects in the past. Sadly, her appeal to staff to offer her an alternative that had previously proven effective was ignored, and she was forcibly treated without any explanation as to why. That situation might have been avoidable if staff had only stopped to listen to the individual and consider other options.”
“That will be a really important part of the enforcement process. The hon. Member for Farnham and Bordon asked about legal recourse. The independent mental health advocate will be an important part of having recourse—for want of a better phrase, they will be somebody to really give back-up to the patient. There is then the legal process, if there is a tribunal or court. Ultimately, someone can go through the court system if there is a dispute about a particular issue. However, one would want to ensure that there had been an objective assessment, through routes such as the independent mental health advocate or through professionals in the system really looking at the issue. Of course, the second opinion appointed doctor plays a crucial role in that.”
“Defining “compelling” will be an important part of the code of practice. We will include case studies and examples to help to put flesh on the bones of that and to illustrate it. But it is important to emphasise that a clinician would only be able to overrule a decision to refuse medication if they cannot identify a clinically viable alternative or one that is acceptable to the patient. On training and the capacity in the system, it is important to note that we plan to switch on the new safeguards impacting the second opinion appointed doctor service only when we are confident that there is sufficient capacity in the system to deliver those safeguards. On the point that my hon. Friend the Member for Southend West and Leigh made, we absolutely must ensure that the reviews are happening.”
“The content of the Bill, in this context, has been produced on the basis of engagement with the second opinion appointed doctor service and clinical experts. That was partly around the decision to shorten the period to two months, as that allows time for medication to take effect, so that the appropriateness of the medication for the individual can be properly assessed. Is that what the hon. Member is talking about—that there might be confusion about whether or not medication should continue to be administered?”
“I will do that. Question put and agreed to. Clause 13 accordingly ordered to stand part of the Bill. Clause 14 ordered to stand part of the Bill. Clause 15 Electro-convulsive therapy etc Question proposed, That the clause stand part of the Bill.”
“In recognition of the seriousness of the situation, the clause requires that those exceptional cases be monitored and reported on by the regulator. This clause is another important shift towards increasing the power of the patient over their care and treatment, within parameters that still enable the use of compulsory treatment where that is absolutely necessary.”
“If feasible, they must also consult a nurse and the patient’s nominated person, drawing on the valuable perspectives that each brings. It is important that this new protocol occurs within a tight timeframe, to ensure the patient’s safety and to prevent unnecessary suffering. That is why there is the power to impose, by way of regulations, duties on specific bodies and professionals to ensure that treatment is certified by the second opinion doctor within a particular period. Where exceptional circumstances result in a delay in appointing the second opinion doctor, the clause permits the patient’s approved clinician to certify the use of life-sustaining electroconvulsive therapy. The hospital must inform the regulator each time that happens, and efforts should continue to appoint a second opinion doctor as soon as possible.”
“This process was included in the Bill following a recommendation made by the Delegated Powers and Regulatory Reform Committee, and an amendment was tabled in the other place. For those reasons, I ask the hon. Member for Winchester not to press the amendment. I turn to clause 18. Currently, a patient’s approved clinician can overrule a refusal of electroconvulsive therapy and administer it compulsorily, so long as that is considered urgent under the 1983 Act. The clause introduces the need for a second opinion doctor, appointed by the regulator, to certify electroconvulsive therapy before it can go ahead. The second opinion doctor must examine the patient to establish whether the circumstances are truly urgent.”
“Its intention is largely already met by the Bill—that is, a second opinion doctor’s certificate can be dispensed with only in the following limited circumstances: first, the regulator determines that there will be a delay in appointing a second opinion doctor due to exceptional circumstances; and secondly, urgent electroconvulsive therapy is immediately necessary to save the patient’s life. The Bill also requires that those exceptional cases are monitored and reported on by the regulator. This process prevents the treating hospital retrospectively requesting a second opinion doctor after treatment has commenced. Although those policies are not achieved by the amendment, they appear to meet objectives outlined in the explanatory notes.”
“The act of forcibly treating an individual can be a highly traumatising and distressing experience. The clause recognises that, where someone is well enough to make a capacitous or competent refusal to treatment, they are also well enough to decide the level of suffering that they are willing to undergo. The clause is critical to improving the patient’s autonomy over their care and treatment. It does not affect the clinician’s ability to administer compulsory treatment where it is immediately necessary to prevent the patient from behaving violently or being a danger to themselves or others, to prevent their serious deterioration or to save their life. I am grateful to the hon. Member for Winchester for tabling amendment 13.”
“Therefore, the clause makes it the role of the responsible clinician to ascertain if treatment is in conflict with an advance refusal or the decision of an attorney or deputy before they secure the second opinion appointed doctor. I commend the clause to the Committee. It improves the patient’s right to self-determination by minimising the circumstances under which urgent treatment can be given compulsorily under section 62 of the 1983 Act. I turn to clause 17. Currently, section 62 of the 1983 Act sets out four main scenarios under which the normal treatment safeguards do not apply, allowing urgent compulsory treatment to be given without such safeguards. The clause removes from section 62 the power to give medication compulsorily where its purpose is to alleviate the patient’s serious suffering.”
“I will discuss a number of issues concerning the topic of urgent electroconvulsive treatment. Clause 15 makes a small practical change to the current protocol around administering electroconvulsive therapy. Currently, where the responsible clinician wishes to administer electroconvulsive therapy and the patient lacks capacity or competence to consent, the second opinion appointed doctor must certify, among other things, that it does not conflict with an advance refusal or the decision of an attorney or deputy. We have heard from stakeholders that it would make much more practical sense and save the second opinion appointed doctor time if that was established before they were invited to assess the patient.”
“Clause 15 accordingly ordered to stand part of the Bill . Clause 16 Review of treatment Question proposed, That the clause stand part of the Bill.”
“Member for Farnham and Bordon asked what happens when a decision conflicts with advance choice. There will be an important process of arbitration around that. The advance choice, as articulated by the patient, is vital and should in principle take primacy, but there are certain circumstances in which a compulsory treatment is necessary. Nothing in the Bill removes the ability to carry out those compulsory treatments, albeit subject to the safeguards that we have debated. Ensuring that the urgent treatment exemption is understood by everyone will be an important part of drafting the code of practice, as will ensuring that the code of practice addresses that important point about maximising and universalising awareness and understanding of the urgent treatment exemption. Question put and agreed to .”
“While an approved clinician can approve treatment in those limited circumstances, there is still a duty on the regulator to appoint a second opinion doctor. Once that occurs, the approved clinician certificate ceases to apply. My hon. Friend the Member for Hertford and Stortford made an important point about how these provisions highlight choice and autonomy, and I thank him for putting that front and centre. On additional safeguards, with particular reference to nasogastric interventions, there are already regulation-making powers in the Mental Health Act to subject treatments such as the one he mentions to new safeguards. We have always intended to engage with stakeholders to determine which treatments should be subject to which safeguards. That is an ongoing and important piece of work. The hon.”
“On the point about situations in which just the approved clinician provides certification, because of potential delays in appointment of the SOAD, such certification by the approved clinician can only occur in a very narrow set of circumstances, when the regulator has determined “that there will be a delay in appointing a second opinion doctor,” and the treating clinician considers urgent and compulsory electroconvulsive therapy to be life-sustaining. Our intention is that certification will be documented in a statutory form, to be set out in regulations, to ensure that there is an administrative record of the decision. Each time ECT is administered under an approved clinician’s certificate, it must be reported to the regulator so that such instances can be closely monitored and reported on publicly.”
“Secondly, the clause will give the regulatory authority the power to request a report on a patient’s treatment and their condition, where they are consenting to treatment. That will expand an important safeguard to individuals who are potentially vulnerable and may benefit from additional oversight. I therefore commend the clause to the Committee.”
“The purpose of clause 16 is twofold. First, it seeks to maintain the status quo around when the responsible clinician must report to the regulatory authority on the patient’s treatment and their condition. Currently, the Mental Health Act requires that the responsible clinician give a treatment report to the regulatory authority when they renew the patient’s detention. However, changes to clause 28 that increase the frequency at which the clinician must renew a patient’s detention would have unintentionally increased the frequency of treatment reports for patients under certain sections. Clause 16 will prevent that, thereby avoiding unnecessarily placing additional burden on clinicians or the regulator.”
“We are not really injecting a new reporting rhythm; it is about maintaining the current frequency, but having that clarity around the classification of patients, as I outlined. Question put and agreed to . Clause 16 accordingly ordered to stand part of the Bill . Clause s 17 and 18 ordered to stand part of the Bill . Clause 19 Remote assessment for treatment Question proposed, That the clause stand part of the Bill.”
“The classification of which part III patients the clause applies to is at the heart of the shadow Minister’s question about ensuring that everything is co-ordinated and we do not have conflicting reports and timeframes. I think that that classification is clear, but to recap, the changes will apply to the following patients detained under part III of the Act: patients who have been transferred from guardianship to hospital, and patients whose community treatment order has been revoked and more than six months has passed since their original hospital order was made. That classification is important. It is also important to bear in mind that the clause is all about maintaining the current frequency.”
“In turn, patients will have access to a greater diversity of second opinion doctors, as opposed to only those in the local area. We understand that remote interview or examination may not always be appropriate, compared with the in- person option. That is why the clause only permits the use of remote where it is considered appropriate by the second opinion appointed doctor, taking into account the patient’s preferences and other factors. We will provide specific guidance on the circumstances under which remote may be appropriate, and where we discourage its use, in the Mental Health Act code of practice. I commend the clause to the Committee.”
“I will discuss the clause and review of treatment. Under the Act, the regulator, the CQC, is responsible for appointing individuals to provide independent second opinions on the administration of certain treatments. As part of that, the appointed person may visit, interview or examine the patient to make their determination of whether treatment is appropriate. The clause permits the use of remote interview and examination for the purpose of any second opinion functions, which relate to treatment under part IV or 4A of the Mental Health Act. Allowing interviews or examinations to occur in person or remotely is expected to result in more timely involvement of second opinion appointed doctors, an important safeguard.”