Clause 5
Mental Health Bill [Lords]
2:45 pm
Rosie Winterton (Minister of State (Health Services), Department of Health; Doncaster Central, Labour)
The purpose of amendment No. 17 is again, I am afraid, to change what was put into the Bill by the other place. It will restore the appropriate medical treatment test to its original form and once again remove the so-called treatability test that was reinstated in another way in the other place. While the amendment will change the position of the House of Lords, amendment No. 59 is an attempt to compromise between the two. Amendments Nos. 19 and 20 restore the changes that we wish to make to the test that second opinion appointed doctors must apply when deciding whether to authorise certain treatments.
The so-called treatability test is one of the criteria for detaining people for medical treatment, if their medical disorder is categorised as either psychopathic or mental impairment. It requires the doctor recommending detention to state that treatment is likely to alleviate or prevent deterioration in the patient’s condition. The treatability test is not one of the criteria for detaining patients categorised as having a mental illness or severe mental impairment. In other words, it is not one of the criteria for detaining the vast majority of patients, either under the civil system in part 2 of the Bill or the provisions in part 3 relating to offenders.
The current wording derives from the Mental Health (Amendment) Act 1982. The origins of the treatability test go back to the 1959 Act and the Percy commission, which preceded it. At the time, it was based largely on the notion that society owes a greater duty to protect people with mental illness or more serious learning disabilities than it does to those suffering from psychopathic disorders or less serious learning disabilities. The idea was that those in the former groups might deserve to be protected by being housed in a hospital even if their disorder could not be expected to improve as a result of treatment.
Over time, attitudes have changed, and we no longer judge the value of the treatability test by those criteria. The debate now is about whether we should persist in talking about the concept of treatability at all, given what we know now about the options for treating people, and about whether it is right to have a test that requires clinicians to predict whether treatment is likely to have a beneficial effect before they can detain someone. For the Government, the salient questions are: does the test help people to get treatment, whether voluntary or compulsory? Does it help clinicians to treat people? Does it provide the necessary safeguards for patients that cannot be provided any other way? Those are the questions that we are addressing at the moment.
Treatability is not the sole bulwark against non-therapeutic detention; there are other criteria. In fact, the treatability test in the Bill does not even apply to those detained for assessment—nearly half of all detentions under the Mental Health Act—and it does not apply to the large majority of the rest until after they have been detained. The test cannot guarantee therapeutic benefits. No one can guarantee that treatment will work. Appropriate medical treatment, which we want to introduce, does not mean that people can be locked up without treatment. That is precisely why the Bill states that appropriate medical treatment must be available. Of course, it would be wrong to detain people for treatment without actually offering them any, but the Bill does not require or allow that.
The problem with the treatability test is that it has stood in the way of a number of people in need of treatment. It has had quite a pervasive effect in mental health services. Leading forensic psychiatrist Professor Tony Maden summed it up when he wrote in a letter to The Guardian recently that the treatability test
“was included in the 1983 Act for the best of intentions, but proved a disaster in practice.”
The key to that disaster is the way in which the test has contributed to a culture in which certain groups of patients, particularly those with personality disorders, are too often simply written off as untreatable without regard to whether potentially effective treatment is available. Such treatment is increasingly available but its development is being impeded by a culture, fostered by the treatability test, of dismissing people as untreatable when their needs cannot be met by general psychiatric services.
Curiously enough, two committees of the British Medical Association wrote to me recently suggesting that personality disorders be excluded from the scope of the Bill because they are untreatable. That is the kind of myth that has pervaded services and service delivery because there is a treatability test. It has led to people being turned away from services or discharged after a period of crisis intervention without proper follow-up. It is important to recognise that because of the changes that have been made in the treatments that are available, we need to ensure that nothing stands in the way of getting treatment to people who can benefit from it.
A sad result of people being turned away from services was highlighted by Baroness Corston in her recent report about the prison system. She found that many women with personality disorders end up in the prison system rather than being diverted into a hospital to get treatment. She welcomed the changes that weare introducing in the Bill because they mean that services can be developed and people can be more appropriately placed.