Clause 5
Mental Health Bill [Lords]
10:30 am
John Pugh (Shadow Minister, Health; Southport, Liberal Democrat)
I thought over the weekend that we could perhaps rename the Bill “Mental Health (Fear of Psychiatrists) Bill”, because amendment No. 59 is largely about what we fear psychiatrists might do, and what psychiatrists fear that other psychiatrists might do, which is to incarcerate individuals to vex and/or neglect them under the loosely worded phrase “appropriate treatment”. The question whether the fear of psychiatrists is a diagnosable phobia or a rational suspicion also crossed my mind.
However, the Lords’ proposed amendment to the Mental Health Act 1983 would not strike out “appropriate treatment”, it would define it as treatment that is
“likely to alleviate or prevent a deterioration”
of a condition. “Appropriate treatment” is seen simply as a wider category; the proposed amendment seeks to narrow it down.
From what I have been able to gather, simple “appropriate treatment” and treatment that is
“likely to alleviate or prevent a deterioration in”
a condition are seen as different by those on the two sides of the argument. Most accept that any treatment that alleviates is appropriate, but that the converse does not follow. There are two main reasons for that. First, “appropriate treatment” may fall short of “alleviating treatment” or treatment that prevents the worsening of a condition; secondly, the reservation on the other side of the argument is that “appropriate treatment” cannot always be guaranteed to alleviate. The Mental Health Alliance argues that if appropriate treatment falls short of being alleviating treatment, it will lead to detention without therapy, medical purpose and, therefore, justification. That is a strong and robust argument.
The Department of Health, citing various examples, argues that if guaranteed treatment cannot be offered, no treatment can be offered to those who otherwise meet the criteria for compulsory treatment. I can cite one example myself. There is a lad in my constituency who was knocked down by a police car that was travelling at 70 mph. He would normally have died. He recovered, but with significant brain impairment that left him without any real sense of responsibility. There is effectively no treatment available to him—nothing that anyone can identify as a cure. The manifestations of the impairment in his behaviour so far are that he has endeavoured to set his family home on fire, exposed himself on a train, jumped out of a top floor window and a range of other things.
I have personally written to all of the agencies concerned with his care, including the probation service, to ask what can conceivably be done. They have responded by holding various case conferences, but it is not obvious that anything can be done. I have had to say as much to his father, and to write to everybody concerned to say that if something happens, it will be of a severe nature and that I suspect that the forces of law and order will necessarily and unfortunately be involved. Cases such as that have to be addressed by those on both sides of the debate.
Both sides have made strong and seemingly opposite cases. The Lords’ amendment is effectively in line with the 1983 Act and the treatability test, although I accept that some would like to see that strengthened substantially. On the other hand, the Department of Health argues that untreatable patients are refused treatment not because they are untreatable, but because they are treated as untreatable. That is one of the arguments that the Department gives for its position, but it is a slightly weak argument, because it is not against the test itself; it is an argument against the application and interpretation of the test and for better-trained psychiatrists, and it illustrates once more the general fear of psychiatrists.
The Department of Health also argues that not all appropriate treatments immediately alleviate or prevent the worsening of a condition; that when a person is sectioned, they may deteriorate rather than improve. That is also a weak argument. Many physical treatments have exactly similar effects. Chemotherapy, for example, does not produce immediate improvements—treatments should be judged over the long term.
The supporters of the amendment have suggested that the Government’s definition of appropriate treatment includes things such as nursing care, rehabilitation, symptom mitigation and so on, which apparently fall short of the expected standard. However, in other fields such treatments are all that is available for chronic conditions. In physical medicine, palliative treatment is a defensible medical activity in all circumstances. Fundamentally, do we not all have a difficulty in describing a treatment that is not likely to alleviate or prevent a condition worsening as medical care? What would that sort of medical care look like? It is not obvious that it would be medical care at all and would, therefore, not pass muster as far as the Government are concerned. My guess is that the two sides are not as far apart as it seems, although they differ markedly in how they feel psychiatrists would use the legislation and the alternative wordings.
There are two further considerations that slightly muddy the water. The Mental Health Act 1983, which we have lived with for 24 years, contains different concepts of treatment. For urgent treatment, the standard is reduced to what is acceptable. The Scottish legislation, which is praised by the Royal College of Psychiatrists, allows treatment to deal with the effects of a disorder. That is a very broad categorisation. The narrowness of the gap between the two sides, together with the variations in the discussion of treatment, suggests that one could, and possibly should, believe that an acceptable compromise can be reached.