Mental Health Bill [HL]

– in the House of Lords at 8:07 pm on 10th January 2007.

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House again in Committee.

On Question, Whether Clause 4 shall stand part of the Bill?

Photo of Earl Howe Earl Howe Shadow Minister, Health 8:22 pm, 10th January 2007

In opposing the Question that this and the other clauses in the group stand part of the Bill, I have one main purpose: to retain the treatability test in the 1983 Act and remove the new test of appropriate treatment from the Bill.

I start by posing a straightforward challenge. It is for the Government to show why there is any need to move away from the treatability test in the 1983 Act. That test is extremely broad. The term "treatment" covers nursing, care and rehabilitation, but it also extends to such things as education and training. Case law has established that a person may be detained in hospital even if detention was likely to have an impact only on the symptoms of his illness rather than on the actual condition.

Given all that, one really must ask what is wrong with the test as it stands. The Government's answer appears to be that some individuals are dangerous to others because of a personality disorder and should not be excluded from the scope of the Act merely because they are deemed to be untreatable. This is a rather strange dimension of the argument. I am not aware of any evidence that patients are being excluded from care and treatment merely because they do not meet the treatability criterion.

All sorts of new programmes and treatments have been developed in recent years to help many people with personality disorders. To the extent that such people are gaining access to these programmes, it is hard to see what the problem is. If such people are being denied access to those programmes, that surely is not a fault of the law or of definitions; it is either because of resources or because clinicians have misunderstood the law. The remedy for either of those things does not lie in amending the legislation. One high-profile example is the inquiry into the Michael Stone case, which did not recommend that the law needed to be changed. It criticised a number of things, but criticised in particular the lack of hospital beds in medium secure units. The amount and the intensity of care that Stone received were, in fact, considerable.

The Government also believe that introducing a test of appropriate treatment will somehow make a positive difference to the number of people receiving care and treatment who need it. This is absolute nonsense. Not only is it nonsense, it is dangerous nonsense. To start with, the treatment does not have to be given; it simply has to be available. "Appropriate", as I am afraid I have said before, is a classic weasel word. What does it mean? In whose opinion is it appropriate, and to what end? It is so vague as to be capable of almost any interpretation. As such, it in effect gives clinicians unfettered powers, because if clinicians do not have to show that the treatment available will do the patient any good, you are in effect saying that they may detain anyone who is ill and who they think may pose a risk, even if the person does not actually receive any treatment. The only condition is that treatment must be available and that the environment must in some way be therapeutic. There is nothing in the Bill to say that detention must be necessary in the circumstances, nothing about a patient's health needs being significant, and nothing about the effects of the mental disorder being serious.

I question whether the detention under those terms of someone who has committed no crime is consistent with human rights law. It is for other noble Lords who are versed in that field, such as the noble Lord, Lord Carlile, to advise us on that point, but the ethical basis of forcibly detaining someone when he obtains no benefit from it, merely because he is mentally ill, is unacceptable. It could bring into the reach of compulsion not only a small additional group who may benefit, but a large number of people who should never be subject to it. The Mental Health Alliance provided some of the examples in my briefing notes. The depressed woman who is being given vocational training would, in theory, be subject to this, as would the young person recovering from an eating disorder who is on a regime of nutrition and exercise, and the man on an anger-management course. We need to ask the Minister why he is comfortable with that thought.

Several things must follow if the Government genuinely want to ensure that everyone who needs mental health treatment receives it, although I do not accuse them of disingenuousness on that point. They must recognise that the Bill as worded will not do. We must restore the notion of therapeutic benefit if mental health professionals are to continue to practise ethically, which is an extremely important consideration. We must tighten the wording to reassure service users that the changes to the Act are not a ploy to use mental health law as a backdoor means of achieving social control. Once people get that idea, we will do the very thing that we least want to do; we will drive those people away from mental health services. If patients start to avoid the service, effective intervention will prove much more difficult, and public safety will not be improved one iota.

If there is one issue in the Bill that has generated more suspicion and hostility than any other, it is this. The Government need to do two things: to convince us, which they have not done yet, that the current law needs to be changed; and to persuade us that what is substituted for the current law is an improvement that will command the confidence of patients and the professions. As it is, I am afraid that we are looking at the worst of all worlds.

Photo of Lord Soley Lord Soley Labour 8:30 pm, 10th January 2007

Perhaps I ought to start with the phrase "as I was saying", but I shall start instead with a short apology for intervening on the wrong amendment. It is a classic example of using the first Marshalled List instead of the second, which is absolute proof, if any were needed, that sparing the Earth's resources by using one set of papers does not spare one's blushes when one gets it wrong.

I shall not repeat what I said earlier. I had made a point about the civil liberties of patients and the individuals who are affected by them, as well as about the rights of the community. It is a balance of rights. I had made a point about the difficulty of definition and I had just started, before my noble friend drew my attention to the different amendment involved, to speak about the 1959 Act and the way in which the hospitals were changing from that time onwards. I was embarked on a grand scheme of describing a situation—I remember it all too well—where the hospitals were providing a care and safety role for large numbers of people who did not need to be there. At the same time, they were providing a place of safety for people who later on fell under the definition of not being treatable. That problem has to be addressed. Over the years, all parties have ducked it because it is so difficult. It is about personality disorder, but we have to recognise that it goes wider than that.

In the 1960s and 1970s, the problems resulting from the failure of psychiatrists in particular—but not just psychiatrists—to offer treatment for personality disorders had a dramatic effect. By that time, there were many people out on the streets who would not have been there previously. Additional problems were brought on by drug abuse. In the early 1970s, I was working as a probation officer in the King's Cross area. The problem which we faced at that stage was that one would come across people who, whether or not they had a personality disorder—there was an area of difficulty around that—clearly needed help and treatment and who were very often asking for it. They were often asking for help in secure circumstances, but you could not offer it. That is a major problem. The Front Bench opposite referred to the Stone case. Michael Stone had had previous psychiatric treatment, but when he went back to another hospital and asked to be readmitted because he would do something very damaging or dangerous otherwise, he was refused. This was a common experience for probation officers and other people who were working in this area in the 1970s. It has remained so since then. Although I have left the profession, plenty of contacts tell me of instances—although there are fewer of them—of people who are refused admission or treatment because their condition is regarded as not treatable. This is a major problem.

The situation now is slightly different, but almost any Member of Parliament from an inner-city area will be able to tell you what sort of people are affected. Members of the House of Lords need to be very aware of this. Your heart sinks as a Member of Parliament when people contact you and describe the behaviour of someone who is clearly unwell and whose behaviour is deeply disturbed. The people immediately around them are scared for good reason. The person will not have done anything against the law, although they will have done some things which might be profoundly dangerous. Shortly before I left the House of Commons, I came across the example a man who would throw very heavy objects over the garden wall without looking over the other side first. He was very disturbed; he had all the signs of disturbance. One could not have arrested him. The police came round to warn him, but nothing was done and the hospital trust said that he was not treatable. The police were saying, "He has not done anything wrong. We've warned him, but we can't do anything about it". Members of the community would say to me, "What's the guy got to do? Has he got to kill one of us first before you take any action?" It is a very real issue.

Another case which came to me was that of a woman who had plenty of money and was not unintelligent, but her house was getting into ever-worse repair. I would have classed her without any hesitation as having a personality disorder, although she was very well presented. Her house went downhill. She set fire to parts of it and began to use the garden as a toilet. You can do things about a garden being used as a toilet if you can show that it is a danger to others in terms of environmental health, but you cannot always do that, particularly if they bury it. Eventually, after five years of the neighbours putting up with this, I got a compulsory purchase order on the house. That is the difficulty of dealing with cases such as that. It is why it is bad to say that that person did not need treatment. That certainly does not help them.

When we talk about patients' rights, we need to understand that for some people whose behaviour is disturbed and shows signs sometimes, but not all the time, of mental illness, we might need to exercise some control and restraint. If you do not, you are behaving like the bad parent. If you say, "Well, it's all right for her to go to the toilet in the garden and it is not harming anyone else", you are being a bad parent. In cases such as this—as I have said, many inner-city MPs will have them—we need to be able to intervene.

The Front Bench of the Conservative Party asked whether being able to do so will make any difference. It will make a difference, although, as I indicated in my earlier, inappropriate intervention, it might not make enough difference for us not to have to return to this at a future date. It will make a difference because it toughens up the system. It will make it more difficult for a health authority to say that it will not intervene. Faced as an MP with a number of such cases, I would have felt able to go to a health authority and say, "You cannot say that appropriate treatment is not available here".

Moreover, as some of the psychiatrists said in our meeting with them a few days ago, it will help to change the culture and practice in psychiatry, making it less likely that arguments will be put forward that treatment cannot be given and the person should be left alone. It is to a large extent a culture-and-practice matter. During my days in the Probation Service in the 1970s, it was very common for a psychiatrist to say, "I am not going to deal with them; they're dangerous", yet probation officers, social workers and a whole variety of other people had to deal with them. You cannot just walk away from this. Psychiatrists have got better and you hear that said far less often, but you still hear it. When a psychiatrist would say that they were not going to admit the person in question, you then had to look around for a hostel. What would the hostel say? "They're too dangerous". Alternatively, they would throw them out on to the street again when they became aggressive.

My final point is, again, well understood by elected Members of Parliament, who constantly face a battering from constituents about it. I deplore it when the press come up with gross headlines that actually create fear and whip up hysteria about "mad" or "bad" people. I have had plenty of occasions to have a go at the press about that and I have a record for doing so.

The real warning for anybody who deals with this politically is that, however inappropriate the headline, underneath it there is very real anger and fear in the community. Legislators have to take into account not just the rights of the individual concerned, and not just the rights of the community, but fear levels in certain areas of the community on certain issues, of which this is a prime example. You ignore that at your peril. It is like sentencing policy. The reason it is so difficult to get sentencing policy right is that people always want longer and longer, and tougher and tougher, sentences. It is easy to say that that does not necessarily work, but we know what people want on it—they tell us very clearly.

My basic message to the Government is: by all means keep the Bill as it is. I certainly approve of the measure. I think it will make things better, helping to change culture and practice, and enabling people to say, "Look, this wording is tougher than the previous wording, so you cannot duck out of it". It will enable people to get a bit more confidence in the system, which to some extent has been lost. It does not get in the way of patients' rights, but it recognises that these rights, as I indicated before, are very much part of a package of rights, which relate to individuals in the community as well.

At the end of the day, if we still get problems of the type that I have described, then the Government may well have to return to this issue with rather tougher wording. The key issue—which goes back to what I said in an intervention on Monday—is to get away from this terrible fear that we are somehow going down the road of the Soviet Union, or whatever. It is not the wording of a particular clause, about a particular mental health problem, that safeguards liberty; it is the rule of law and all the extra bits you put in, such as the mental health tribunals. That is what protects you. The idea that this could only happen in an authoritarian regime is nonsense.

That is why I again ask people to think about what was happening in the 1950s when we did lock people up. Actually, they were not always locked up; they could often go out and get jobs and work from the hospital—it was like a big hostel in some ways. Some were locked up, however, and it was inappropriate. Some were kept in there for years and years and they should not have been. At the same time, we provided a structure for them, as that was the best form of treatment—a lot of this was before modern drug therapy was around.

Therefore, I say to the Minister, go ahead with this and see how it works, but do not be afraid to return to it. We will never get it exactly right. There will always be a problem of definition around essentially behavioural issues—psychopathy, personality disorder or whatever you want to call it—which we know are also about grossly disturbed behaviour. In King's Cross, I worked mainly with people who were labelled personality disordered and with alcoholics—the two were often combined, which made it even more difficult. However, it is abundantly true that you know when you are dealing with one of them for a long time. It is the old story: you cannot define an elephant, but you know if there is one in the kitchen. The issue here is not that we lock them all up, but that we have some way of containing them for periods of time, such that it is constantly open to review by non-medical and non-social work specialists—hence the importance of the health tribunals and the law, and so on.

Let us not kid ourselves, however, that this is not a serious problem. The numbers are admittedly small, but the impact is great. If I took you to the neighbours of the lady whom I described right now, they would express far stronger feelings than I am expressing about the inability of the health services and the law to help.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Liberal Democrat

The noble Lord, Lord Soley, knows that I hold him in very high regard. I regard it as a privilege to follow him in debate. I hope he will take it as no more than an affectionate reproach when I say that I find it much easier to follow his speech than his argument on this occasion.

I suggest that he has completely failed to explain to the Committee why a therapeutic benefit test would be less effective than the appropriate treatment test contained in the Bill. The report of the scrutiny committee, of which I was chairman, contains a list of the evidence it received from page 279 to page 293—a huge list it is. A very large proportion of that list consisted of evidence on precisely that issue and the whole question of dangerousness.

It is very important that nobody should get the idea that the noble Lord, Lord Soley, wants to protect the wider community, who have the right to be protected from dangerous people, while the rest of us are simply trying to protect the rights of a small number of seriously mentally ill people. That would be to traduce our argument. I completely share with the noble Lord and the Minister the aim that as many people as possible who appropriately fall within the provisions for compulsory treatment, within the ambit of the Mental Health Act 1983 as it will be amended, should be brought within that scope.

I agree with the noble Lord, Lord Soley, that the public deserve, and are entitled to, protection so far as possible from dangerous people. Just as I have said repeatedly in the terrorism context that national security is a civil liberty of every citizen, equally protection from dangerous people is something that every citizen is entitled to expect. The question here is much narrower. Agreeing as we do on the principles, we must ask whether these clauses provide greater protection than a therapeutic benefit test. I think almost everybody—I suspect, even Ministers—agrees that the language of the appropriate treatment test is less certain than the therapeutic benefit test. I am strongly of the view that a court would find it easier to test the term "therapeutic benefit" than "appropriate treatment". Appropriate treatment is defined in every case by the psychiatrist or the lead professional providing the treatment, and that in itself introduces substantial difficulty for the courts.

I agree with the Government, as did the committee, that the old treatability test in the Mental Health Act 1983 presented problems. It is absolutely right that it be replaced, and I would applaud the Government for replacing it. I am sure that the Committee shares that view. The question is whether the Government propose to replace it with the right kind of measure. We must ensure that the balance between the civil liberties of the patient and those of the majority of the community falls within a certain area that can properly be interpreted by the courts.

It is hoped that the Bill will achieve the retention of more people who are already known to the services within those mental health services, so that those who have come within their ambit are less likely to commit serious crime—as was pointed out to me the other day, we are not just talking about homicide—than under the old law. The committee's view was that a therapeutic benefit test would achieve that. I have seen absolutely no evidence that the vaguer test proposed by the Government would achieve more than a therapeutic benefit test.

The other question is: how far will this new law bring people who are not already within the ambit of the services within their scope? It is a truism that a very small proportion of seriously mentally ill people commit serious crimes. It is accepted that between one in 10,000 and one in 20,000 people who suffer schizophrenia commits a homicide. How many of those 10,000 to 20,000 people will be brought within the scope of the very acute mental health services as a result of the Bill? Will it be more, less or the same number? I suggest to the Government—and in this I have the support of the Mental Health Alliance, including the Royal College of Psychiatrists, to which I will return in a moment—that the appropriate treatment test is likely to diminish the number of people coming within the scope of the mental health services. Mentally ill people often go to services voluntarily but only when they have a sense that they will be safer in the hands of the mental health services than out on their own. If they are aware that a very vague test is being applied so that they run a far greater risk of long-term, compulsory detained treatment, they are significantly less likely to go to the mental health services. That must surely be a matter of common sense. The prospect, therefore, under the vaguer test of more potential homicides being brought within the system is very small.

Furthermore, if one looks at the inquiries to which the noble Lord, Lord Soley, referred both in his trailer and in the feature film, one finds a clear pattern in every single case that has been inquired into, of which I am aware, right up to the present. The finger has not been pointed at a deficit in the definition of mental disorder. The finger has not even been pointed at the treatability test. In every single case it has been pointed at a failure in resources—at a failure in services and occasionally at failures of judgment. Nothing in this Bill repairs those problems.

I mentioned that I would say more about the Royal College of Psychiatrists. It is simply to answer a question that was raised much earlier today. There has been a good deal of discussion about the role of the Royal College of Psychiatrists in the debate we are having on this Bill. As a lay person, I am satisfied that it is sensible to obtain the views of the professional body that represents the clinicians involved in the territory. I could add a whole list of other bodies, some of which have been mentioned earlier—the noble Baroness, Lady Meacher, mentioned one or two—which agree with the Royal College of Psychiatrists.

The question raised was: how many psychiatrists are on the side of the Government on these issues? I was invited to meet a few. Indeed, the noble Baroness, Lady Royall, very kindly arranged a meeting at which Members of this House were to meet psychiatrists in favour of the Government's proposals. I did not take the trouble to count them at the time because I was too interested in the issues, but I do not think I got beyond eight or nine. Ten, I am told from across the Chamber. So that is 10 against the Royal College of Psychiatrists as far as I am aware. Of those 10, I was left with the view that some of the senior members of that group had very fixed preconceptions and were not at all open to argument.

What is the point of introducing an appropriate treatment test which is going to drive people away from the service and which flies in the face of the evidence called before an all-party scrutiny committee which reported consistently with the previous inquiry of the expert committee chaired by Professor Richardson? I do not believe that one can do better than citing what was said to the committee by Professor Eastman. Professor Nigel Eastman is Professor of Law and Ethics in Psychiatry at the University of London and he is Head of Forensic and Personal Disorder Psychiatry at St George's Medical School. I would invite the Minister to attend very carefully to what he said because, in my view, it encapsulates the argument in a short paragraph. It is at paragraph 139 on page 50 of the first volume of the Joint Committee's report. Professor Eastman, who is of the highest standing, said:

"Therapeutic benefit to the individual is of crucial importance in terms of protecting the boundary of what is the business of mental health professionals. I am not at all against protecting the public, of course not, but it must be in conjunction with some benefit to the individual that goes beyond simply stopping them offending. If you adopt a definition of treatability which is simply the reduction of risk or the avoidance of offending, that means that locking somebody up is treating them".

I agree with Professor Eastman: locking somebody up is not treating them.

I know that the noble Lord, Lord Soley, has rigorous intellectual honesty. He and I were at another place together and I have heard him speak on many subjects and that comment is based upon my experience. I completely share with the noble Lord the view that there may be a case for locking up people who are untreatable and who have been found to be very dangerous. But let us not pretend that the right way to do it is under a mental health Bill. I do not join those who accuse the Government of trying to create a kind of Soviet-style psychiatric regime; that is an unfair criticism. But I do criticise the Government for failing to grasp the nettle on the whole question of therapeutic benefit and dangerousness. A responsible Government should be intellectually honest enough to grasp that nettle. If it is the case that this Government believe that certain people should be locked up as a result of certain criteria, a sort of control order regime for dangerous people—and there is a precedent to start with—let them bring forward a Bill to this House and the other place and it will be considered on its merits. Parliament will then be able to adjudge whether it is necessary, and if so in what terms, to place restrictions on dangerous people who cannot be treated. But in terms of a mental health Bill, if this really is a Bill on mental health and not, as has been suggested by another Member of your Lordships' House, merely a Home Office Bill in disguise—a way of securing, as Professor Eastman put it, "locking somebody up"—the Government really need to accept that their appropriate treatment test simply does not add up to anything involving improvement to health.

The Scottish Mental Health (Care and Treatment) (Scotland) Act includes the therapeutic benefit criterion in that compulsory powers can be used only where medical treatment is available which would be likely to,

"prevent the medical disorder worsening, or ... alleviate any of the symptoms, or effects, of the disorder".

That is not a high demand for a therapeutic benefit, but at least it retains a concept. The purpose of mental health legislation, as the committee said, must not be to detain people for whom no beneficial treatment can be found. In my view, this Bill has been infected by these clauses. It has the infection of a custody Bill rather than a health Bill. I would ask the Minister to take on board criticisms of this part of the Bill which he knows come from within and outwith Parliament, and to say to the House that the Government will consider these matters further and return at a later stage hopefully with acceptable amendments.

Photo of Baroness Murphy Baroness Murphy Crossbench 9:00 pm, 10th January 2007

Follow that. For me, this is simply the most important amendment to the Bill. However, the noble Earl, Lord Howe, and the noble Lord, Lord Carlile, have been so eloquent and clear in outlining the issue that I shall be brief. I feared that the noble Lord, Lord Carlile, would use my best quote from Professor Nigel Eastman, but he did not. I cannot remember whether he said this in the Joint Committee or on another occasion, but at one point he observed that if you have so-called hospitals where people can be locked up without the need to have therapeutic benefit,

"you are creating snake pits".

I acknowledge the difficulties of the word "treatability" and how it has been misinterpreted or used as an excuse over the years. I should say to the noble Lord, Lord Soley, that I recognise the scenario he described, and certainly as a young trainee psychiatrist I had a great deal of sympathy with the desperate plight of people who seek—or perhaps ought to seek—help but do not get it. We know that excuses are made because of resources and inappropriate attitudes, but I can also remember the mental hospitals and the containment they provided. I would not wish to go back to that era because many of them were simply snake pits and would not do any more. So I acknowledge the difficulties of the word.

However, the concept of therapeutic benefit must not be jettisoned. We have to go right back and ask: what is the purpose of a mental health service? The same as any health service, it is to relieve suffering. People who go into mental health care do so because they have a passionate commitment to alleviating the suffering of those who suffer from mental disorder. If we change what healthcare professionals aspire to do and to be, we change the very basis on which medicine, nursing, psychological therapies and so on are based. Even with someone who is dying and in receipt of palliative care services—the Alzheimer patient at the very end—we still aspire to give therapeutic benefit. We provide care. We do not give up. That is the whole point. It is utterly fundamental that we should retain that idea somehow within what we are trying to do for people, including those whom the noble Lord, Lord Solely, has so eloquently described. However difficult they may be, they need to be accepted and welcomed within our services.

Case law has established that a person can be detained if hospital treatment would prevent deterioration in his condition, make him more co-operative and insightful or impact on his symptoms, even if it would not change the underlying illness. In fact, most medical treatments do not cure the underlying illness; they relieve symptoms or reverse the effects of symptoms. But the courts have been clear until now that mental health law should not permit indefinite preventive detention of a person for whom no benefit could be shown; simple containment is going too far. So, given the breadth of the existing test, it is hard to see what the Government seek to achieve by the new test, except to allow ongoing detention beyond that currently permitted by the law—and that is where I stick.

When I first read the appropriate treatment test I thought, "Oh, that will do. That might be it". But the more I see how broad is the reach of the legislation and the concept of appropriate treatment—it is extremely difficult to define—the way in which it is described in the draft code of practice becomes almost meaningless. There is no requirement that the patient should receive any benefit beyond that of confinement in a therapeutic environment. In other words, there does not have to be an aspiration to improve and rehabilitate, and that is simply not acceptable in mental health services. It is inherently unethical to permit people to be detained in hospital or to have their lives controlled when they do not obtain any benefit from it. All members of the Mental Health Alliance consider this a fundamental principle of mental health law which must not be jettisoned. Others have spoken so eloquently that I will not go on about that.

We have mentioned repeatedly the fears of black and ethnic minority communities and how they are disproportionately affected by this provision. We need to provide people with services that are not only utterly welcoming but also genuinely trying to assist their mental state.

If clinicians have misunderstood the law—I do not think they have; it was used rather as an excuse—the situation should be remedied through training and the provision of an understanding about what services are supposed to be about and the kinds of people we are willing to treat. But changing the law will not provide extra beds or facilities and it will not make people easier to treat in ordinary psychiatric facilities. I do not think that clinicians will be bullied into incarcerating the inconvenient, but Clause 4 must go.

Photo of Lord Warner Lord Warner Minister of State (NHS Reform), Department of Health

I want to speak against this group of amendments, and to discuss the unsatisfactory nature, in my view, of the treatability test and what I regard as the associated therapeutic benefit test. I shall emphasise what I regard can be seen as the benefits of the Bill's approach to appropriate treatment. I have the greatest regard for the views of the noble Lord, Lord Carlile, and the noble Baroness, Lady Murphy, but I fear that on this issue I disagree with them. I will try to set out the reasons why. I will certainly not try to compete with my noble friend Lord Soley's practical experience in this area, although much of what I will say reflects many of the views he was expressing in terms of that experience.

It is worth reflecting on the fact that there is a growing body of opinion that recognises the drawbacks of the treatability test. It is simply not true that everyone in the psychiatric profession accepts that it is a reasonable way forward. Indeed, one distinguished forensic psychiatrist has said that it has been a disaster and must be abolished. Those are his words, not mine. One of the many drawbacks of the test has been that certain groups of patients have been labelled untreatable and have thereby been denied services. This is not just about locking people up; it is about denying them access to services. That is bad for patients, for the commissioners and providers of services and for the wider public, who may well consider that services are washing their hands of certain patients who represent a risk to public safety.

It is too easy just to dismiss as populism the public view on this issue. Mental health services, including many of the eminent psychiatrists the noble Lord, Lord Carlile, drew our attention to, sometimes need to stand back and see how the wider public may see them and the way they are providing their services. The public think that the services are washing their hands of difficult people who require services but are regarded as untreatable, and therefore as a group the professions do not wish to engage with. That may be unfair, and professionals may say so, but that is often a strong public perception. We as legislators have to take account of some of those perceptions, because some of them may be based on reality.

It is very difficult, as someone who has spent a good deal of the past 10 years working, both in the Home Office in government and as a health Minister, simply to brush those arguments aside. They come up time and again, not just through constituency cases but as part of a wider public debate that encompasses this subject area. We have to listen to some of those concerns. We cannot get away from the fact that the treatability test has been used by some professionals to avoid engaging with difficult individuals whose conditions, I have no problem accepting, are undoubtedly difficult to deal with and to treat. However, a failure of professionals to engage with those individuals—and, frankly, trying to pretend there has not been a failure to engage defies reality—is undoubtedly equally an issue that concerns the public and puts individuals and the public at greater risk.

Labelling people with personality disorder as untreatable has, in my view, produced a culture that has held back the development of services for them, even though there is growing evidence of effective treatments. No one is claiming that there are cures around the corner, but this is about whether we can make things a little better and protect some of those individuals, improve the quality of their lives and protect the wider public. That is what this is about. It is not about absolute cures. No one is arguing that there will be absolute cures. Because the treatability test requires clinicians to predict the outcome of treatment, it can lead to patients not co-operating in the hope of engineering discharge and tribunals and courts being asked to discharge potentially dangerous people on the basis of arguments about whether a patient is benefiting. We are in that territory. That is the day-to-day reality of the territory that we are in. That can lead to release, even though more treatment is needed, and thereby lead to greater risk to the public.

As we heard this evening, there are those who argue that if the treatability test is to go, it should be replaced by a therapeutic benefit test. In other words, a person should not be detained under mental health legislation unless there is a treatment available for the condition that the clinician can be pretty certain will deliver therapeutic benefit to the patient. That is as I understand the arguments. This seems to me a line of argument that is remarkably like the treatability test and could be argued to be an even more demanding test than treatability. It does not surprise me that some professional opinion is in favour of that. Some professional opinion is in favour of keeping the treatability test, so why should it be against a more rigorous test in terms of therapeutic benefit? Moving along this path seems to me just another way of collectively washing our hands of a group of individuals with particularly difficult disorders and denying them access to services. I emphasise again this issue of denying them access to services, which others have raised. If you create a culture in which you accept professionally that some people are too difficult to deal with, you inhibit the development of treatment services that will help you deal with them. That is the effect. Trying to pretend that is not the effect is frankly disingenuous.

At the same time the public would also continue to be put at risk. Mental health services are placed in a position where they seem almost to be saying, "We prefer to wait until an offence is committed by such individuals and then allow the criminal justice system to be invoked. At that point we will be glad to offer our professional services". That is what the position seems to be to many lay people. That is the appearance of the service response. I am not a clinician, but if I were I am not sure that I would be very comfortable with the ethical position in which I would be placed with such an approach. Some in the profession need to reflect a little more on how this comes across to other people in the wider public arena.

The fundamental flaw with both the treatability test and the therapeutic benefit test is that they seem to require clinicians to have a degree of certainty about the outcome of a course of treatment that is never likely to be achievable with some of the complex so-called psychopathic disorders that we are dealing with here. You cannot have that level of certainty inherent in the treatability test and the therapeutic benefit test. The disorders that we are dealing with require mental health professionals to have a much higher degree of certainty about outcome than I suggest we require of a clinician treating complex physical conditions at a similar point in their assessment and treatment process. We are asking one group of doctors to have more certainty about the outcome of the treatment. The noble Baroness shakes her head but if we follow the logic of that, it is what we are doing. We are asking for a higher level of certainty regarding the outcome before you begin the treatment than is often the case with physical conditions. That is the logic of where we shall end up. In my view, by continuing down this path we shall put psychiatrists in a different position from that of physicians.

It is for those reasons that I believe the Government's approach of "appropriate treatment" is right in the difficult circumstances that many mental health professionals face.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Liberal Democrat 9:15 pm, 10th January 2007

I am grateful to the noble Lord for giving way. He has made an assertion, which I understand to be that there is less certainty of opinion when a psychiatrist makes judgment than with all other clinicians' judgments. I want to challenge that. Does the noble Lord really believe that a neurosurgeon has any more certainty when he judges the effect that an operation will have on a large brain tumour, or that an oncologist has any more certainty in prescribing chemotherapy for certain types of cancer, than a psychiatrist has when giving his medical consultant's opinion in relation to mental illness? If so, I would welcome him citing some evidence to support that.

Photo of Lord Warner Lord Warner Minister of State (NHS Reform), Department of Health

I was not exactly saying that. I was trying to explain—no doubt inadequately, so I will have another go before I continue my arguments—that the inherent nature of treatability tests and the therapeutic benefit test is that they presume a knowledge of outcome that is actually a higher test. Noble Lords may shake their heads, but as a person with a reasonably logical frame of mind who, on the whole, understands the Queen's English, I think that they are asking to raise a higher test than we ask some physicians to apply in how they respond to physical conditions. Your Lordships may disagree with it, but I happen to have that view and believe that I will be sustained in it when people reflect a little more on it.

I will continue with the arguments that I want to develop. As I have explained, I believe that the Government's approach of appropriate treatment is right in these difficult circumstances and I say to the noble Earl, Lord Howe, that "appropriate" is neither a weasel word nor a cop-out professionally. It means what it says, in that the clinician should be sure that the treatment is right or suitable or fitting—those are the kind of dictionary words that "appropriate" actually means and any of them can be chosen as preferred. It assumes that the clinician will make those judgments based on the particular circumstances or individual or purpose on which he is required to act.

Inevitably, professional judgment has to be used in particular circumstances, but if it is wrongly used—if the person makes a gross error of judgment about whether treatment was appropriate—then it can still be challenged. But I would suggest that the Government's approach of an appropriate test is more realistic, being more in line with what we expect of doctors treating physical conditions. We do not expect them always to be sure of the outcome before beginning treatment, but we expect their actions to be appropriate for the circumstances that confront them with a particular patient. Simply because deprivation of liberty may be involved in some cases of complex personality disorders, it does not seem to me that mental health clinicians should be expected to have a greater gift of foresight, or should see greater beneficial clinical outcomes, than their physical disease counterparts.

I have a good deal of sympathy with the difficult circumstances that psychiatrists may find themselves in as they attempt to make judgments about some of the complex personality disorders facing them, where deprivation of liberty is involved. However, I do not consider that we make their lives any easier by giving them either an unrealistic test—like "treatability" or therapeutic benefit—or no test at all, which effectively enables them to disengage from difficult cases where patients are serious risks to themselves or to others. That is the situation that we are in danger of getting into.

The appropriate treatment approach places a professional clinical requirement on clinicians, but also allows professional judgment to be exercised. It is not a deterrent to the development of services for people with personality disorders in the way that the treatability test has been. It is, however, still a test against which allegations of poor professional practice can be assessed, so it provides safeguards for patients. It also provides greater public protection, by ensuring that clinical services are provided to those who need them if their disorder is to be tackled, rather than allowed free rein in the public arena. It is a better way of ensuring services are provided than we have now, and we should support this approach and not pursue the route proposed by the amendments. They are retrograde steps that would damage service development to patients and the wider public.

I say very firmly to the noble Earl, Lord Howe, who raised the issue of human rights, that I do not believe that the present provisions on replacing the treatability test with appropriate treatment run counter to the European Convention on Human Rights. I took the best legal advice that was available to me as a Minister on this issue before I signed the statement on the Bill's compatibility with the convention. All Ministers have to make that judgment, as a result of the Human Rights Act. We take those decisions very seriously. The Bill is compliant with convention rights, and I do not believe that the appropriate treatment test is a challenge to those rights. On those grounds, we should not go in for what is tantamount, if I may say so, to a wrecking amendment of a major part of this Bill by going down the path of this group of amendments.

Photo of Lord Alderdice Lord Alderdice Liberal Democrat

It is rather important to be clear about what we are discussing. We are speaking about legislation the purpose of which is to legally facilitate compulsion. When comparisons are loosely drawn with the question of physical treatments, one should ask oneself what precisely are the contexts in which patients are forced to accept physical treatments? When a patient has a brain tumour, the surgeon is required to receive the patient's informed, written consent, for without it, it is a gross assault. Over the past few years, we have all been made very aware of the absolute requirement for full, informed, written consent. We are talking about legislation the whole purpose of which is to go in precisely the opposite direction and to ensure that, against the patient's wishes, they are compelled to accept treatment.

I feel, very much like my colleague the noble Baroness, that this clause is actually the key to it all. In many ways, it sets psychiatry right back 150 years. What do I mean by that? Some 150 or 200 years ago, people who were unacceptable because of their behaviour were locked up in jails or put into asylums of various kinds; and that was the progressive step. A few courageous doctors—and in many of these places there were not doctors at all—went out to work. They were called alienists because they were prepared to go out to places where there were no treatments of any kind. It was a question of containing a bunch of people who were very difficult to cope with and manage, who had a whole assortment of problems. What sort of problems were they? Some were organic problems; tertiary syphilis and other infections that left people in a physical and mental mess. Some were psychotic disorders, manic disorders, and a range of what we now know as schizophrenic disorders. Those diagnoses were not even available then.

Why? Because it was all just a bunch of people who were disordered in their heads because of alcoholism, drug addiction—of a very different kind to that talked about now—and criminality. Then there were all the young women with moral imbecility: the ones who had had children out of wedlock. I well remember seeing an 85 year-old when I was a junior doctor who had been in a mental hospital since her early 20s because she had had a child out of wedlock. I was seeing her because she was demented, having been there all her life.

Mental disorder, undifferentiated, meant that they were all put away when they were causing trouble. As time went on, some alienists began to try to differentiate. Were there any differences between all these people with mental disorder? It became clear that there were. Some had infections; some had psychotic disorders; some suffered from the effects of chemicals, including drugs, alcohol and so on. Some should not have been there at all. Some were petty criminals. Over many decades of careful and painstaking work, spending huge amounts of time with these people—often raising their families in the context of these mental hospitals as a way of spending enough time with these patients to find out what was going on—it gradually became apparent that they were dealing with whole different kinds of things, requiring different kinds of treatment.

Why did the changes mentioned by the noble Lord, Lord Soley, happen in the late 1950s and early 1960s? They happened because of the discovery of such drugs as chlorpromazine and amitriptyline. The discovery of anti-depressants and mood-stabilising substances meant that people with bipolar disorders, as they came to be known, could get out. Patients with the range of schizophrenia and paranoid psychoses could have their symptoms dampened down. They were not cured, but their symptoms could be dampened down in order that they could be managed in the community. Most of them did not have personality disorders, in the terms that we are describing now, at all. Psychopaths ended up in prisons, in the Army and in various other places. They were not in hospitals. There were some alcoholics and people at the end of their tether from that point of view, and there was a lot of tertiary syphilis still around. The antibiotics, phenothiazines, anti-depressants and mood stabilisers enabled people to get out into the community. It was not that people with personality disorders were better.

What are we doing in this Bill? We are going right back to lumping everybody together under mental disorder—except for alcohol and drug addiction, because even the Government know that if you put that lot in, the whole thing will collapse completely in practical terms. The rest are lumped together under mental disorder, as though it were all the same thing. When it comes to treating these people the first thing you do, as a responsible doctor, is to try to make an assessment to discover what you are dealing with.

I am a psychotherapist by conviction and practice. If I am dealing with a psychotic disorder I will nearly always use some medication to try to help contain the disorder and protect the healthy part of the personality, in order that I can work with that. However, if I am dealing with somebody who has a personality disorder, I will almost never give them medication. It is rare to try to treat them in that way because it does not help and creates further difficulties down the line. That is different from how you would deal with a person suffering from alcoholism per se, as distinct from alcoholism in the context of a personality disorder. That, in its turn, is different from dealing with a neurotic disorder, an organic psychosis, or some other kind of deterioration. You try to see the differences in these things and treat them in different ways.

I am very familiar with the kind of problem mentioned by the noble Lord, Lord Soley. East Belfast is not a notoriously peaceful part of the world where everybody gets along perfectly. I was a Belfast city councillor and an elected representative for the Assembly; I am more than aware of all the complaints about neighbours from hell and difficult people. I am also aware that sometimes wrong diagnoses are made; a personality disorder is described when it is not that at all, but a psychotic disorder that should be treated as such. However, bad psychiatry does not justify bad legislation. I find myself trying to deal with young people with alcohol and drug addiction problems. We are going to have to try to create a service that is not about medication, but quite the opposite. Let us try to establish degrees and other forms of training in psychotherapy, which did not exist in Northern Ireland. When you set these things up, can you get the resources to make them happen? No.

My mailbox at the moment does not contain letters about the enormous growth of services for people with personality disorders. People write to me because the Henderson Hospital is being closed down, along with other facilities where people are being trained and have been working on these things for 30 or 40 years. They cannot get the resources to continue. When I look at my own facility on trying to admit somebody, what do I find? Is it possible to provide the appropriate treatment? Increasingly, mental hospitals provide only custodial care.

You cannot even keep the trained staff that you have got, because they are falling ill, taking leave or taking early retirement. They are getting out, because they are dealing only with incredibly disturbed people of various kinds and cannot manage to keep their own heads together, never mind the heads of people like the young psychotic patient, who, from the one, sane bit of her head, said to me, "Look doctor, please don't have me go in—I know that I am really disturbed at the moment, but if I go in there, I am going to be worse". I had to say to her, "I know that you're right". It was actually true, and we tried to find another way of managing her. That is the reality of trying to work in such circumstances.

I know that the kinds of problems that the noble Lord, Lord Soley, has described exist; but the question is: what are they about? Are they about individual mental illness? Most of the cases that he spoke of are not mental illness. Disturbances of personality will not be dealt with by the prescription of medication, for example. If you were going to provide some kind of approach that the noble Lord would understand, where would that come from? You could not simply say that it was all for psychiatrists to deal with. Psychiatrists are running away; they are avoiding these difficult people. Maybe part of the reason for that is because, when they have analysed the situation, they say, "I know perfectly well that I can't resolve this problem. Not because I don't want to, or I am not interested, or I want a comfortable life". This is not fundamentally that kind of problem.

I have an interest in terrorism and in dealing with conflict. Lots of people say, "These terrorists are mad, crazy and bad. They are psychologically distorted". I have applied my energies to thinking about how psychology and social psychology apply to these people. It does, but not on an individual basis. What disturbs me about this whole approach is that the work of psychiatrists over decades, in trying to clarify the appropriate diagnosis—where does this come from, what is it about, what is the ideology, what is the prognosis of the disorder, what is the appropriate treatment, what is the package of treatment that we must give to this patient that is different from that for another patient?—is being destroyed by trying to deal with a social problem that is not necessarily susceptible to such an approach; it involves bunging them all back into a big bag that says, "Keep them out of there because my House of Commons mailbag is too full of complaints".

That is understandable—it is a frustration and a real problem—but if we try to make psychiatry bear the burden of it, you will not solve it; you will wreck psychiatry and you will not do any justice to the benefit of healthcare. It is not a question of denying people services. These services do not exist in most cases. What you can do is to ensure that there is support for people in the health service who are already massively overburdened in providing the care that they already provide, and who find that they cannot continue to cope at all, rather than moving things forward to some kind of utopia that tries to deal with all of these problems.

Photo of Baroness Meacher Baroness Meacher Crossbench 9:30 pm, 10th January 2007

Noble Lords will be relieved to know that I shall be brief, but I must register my considerable concerns about Clause 4. The Bill, as drafted, would provide for doctors to become involved in the detention of people who are seen to pose a risk to others, who have not been convicted of a serious offence and for whom no treatment that would provide therapeutic benefit is necessarily available. The GMC argues persuasively that that would conflict with doctors' professional obligations to put as their first concern the care of the patient and their responsibility to provide treatment and care, based on clinical need and the likely effectiveness of that treatment.

That is the central ethical issue arising from the Bill. I speak as someone who chairs a clinical ethics committee in a mental health trust, which, I believe, is the only one in the country—although I am not sure about that. The Bill proposes an extraordinary definition of treatment that could involve in some cases only education and training in work, for example. Since when has education or training for work been a medical treatment? All this would dramatically increase the scope for the exercise of compulsion. Crucially, it would be possible to confine people under the Act when no health benefit would result. The legislation could thus be used as a means of coercion and doctors would be enlisted to undertake the jailer function.

If the Government wish to lock up people who have committed no crime and for whom no treatment with a therapeutic benefit can be provided, they should not ask doctors to be involved. To do so threatens to undermine the doctors' commitment to ethical principles and to the hippocratic oath. It also threatens to increase the stigma attached to mental health problems and to psychiatry itself—the precise opposite of the Government's declared intentions with which I am familiar. I have no distrust in general in the Government's intentions around stigma; they have been good on that issue. It could thus seriously undermine the trust that is conferred on the medical profession by members of the public.

The Government are in danger of undermining their own good policies, never mind their intentions. In particular, the Bill will threaten the work of assertive outreach teams which were established to manage difficult mental health problems in the community. The raison d'être is to avoid compulsion wherever possible and thus to reduce the stigma for users of mental health services and, in particular, the stigma associated with people who present a risk. Many of them are dangerous. But even these people are worked with effectively day by day, week by week, by those assertive outreach teams. It is one of the great things that the Government have done. In my experience, the quality of service in mental health is changing for the better as a result of these teams. Psychiatrists are spending much more time seeing people away from the hospital. More and more psychiatrists are training in evidence-based psychological therapies. Of course, there is a long way to go.

I believe that the Bill would be an incredibly retrograde step. The emphasis in the Bill is on compulsion, whether in hospital or in the community. If the Bill remains unchanged, the inevitable increase in the stigma attached to mental illness is one of the main reasons for my personal objection to the proposed appropriate treatment test. It is a massive objection to the Bill. I know that the Government do not want that effect.

The Royal College of Psychiatrists makes the point that if the Bill became law unamended it would probably not even be effective. It could indeed increase the risks to the public. The very small number of really dangerous people along with many others would steer clear of mental health services. Safety can best be improved by making services accessible and effective. That is what assertive outreach teams are working so hard to achieve. Their remit is to make and maintain a therapeutic relationship with patients in the community who are most resistant to contact with the psychiatric services, most resistant to treatment and most at risk of harming others. The job of any legislation must surely be to support rather than hinder that precious work.

From the standpoint of international conventions, it would appear that the absence of a therapeutic benefit test would breach the UN principles for the protection of persons with mental illness which requires that,

"an independent authority is satisfied that the proposed plan of treatment is in the best interest of the patients health needs", prior to any compulsory treatment. I believe—the noble Lord, Lord Warner, says differently—that the Bill as drafted would breach the European Convention on Human Rights. A form of preventive detention could not be justified in the absence of evidence of imminent danger to members of the public. The noble Lord, Lord Soley, made an eloquent speech about real problems which we all recognise and with which we are all familiar. Perhaps ways could be found within internationally agreed principles to detain potentially dangerous individuals although I doubt it. My point, along with no less a person than the noble Lord, Lord Carlile, is that such a policy simply does not belong in mental health legislation.

We seem to have mixed messages coming from the Government. The code of practice makes clear that the Government's proposed test falls short of the therapeutic benefit test. The code states that,

"medical treatment can only be considered appropriate if it is intended to address the mental disorders from which the patient is suffering".

We are told that "intended to address" means that the purpose of the medical treatment is to alleviate, prevent deterioration in, or otherwise manage the disorder itself, its symptoms or manifestations or the behaviours arising from it. If a secure environment controls behaviour, it seems that this would satisfy the test. And yet government representatives in meetings have said in my presence that appropriate treatment would benefit the patient. Of course it would. But that is clearly not the case.

In conclusion, it is not an accident that both the expert committee and the Joint Scrutiny Committee concluded that a proper test of therapeutic benefit was an essential component of the law. I understand that these committees reflect the views of the vast majority of psychiatrists in this country. The truth is that if psychiatrists and psychiatry are to have the confidence of service users and society at large, the fundamental objective of medicine to benefit the patient's health must be recognised as a central tenet in our mental health legislation.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

The hour is late. However, I should like to quote very briefly from the United Kingdom's Disabled People's Council's brief on this part of the Bill. It feels strongly about the provision. It is the only umbrella organisation run and controlled by disabled people, representing more than 100 organisations of that type dealing with different impairments and health conditions including mental health. It describes its view as follows:

"we would see appropriate treatment as an open door for the inappropriate use of drugs for people with learning difficulties. This is because there is no need to consider what is 'best' or what would be of therapeutic benefit to them. If the circumstances are, for example, that staff or family members are at risk of being hurt by someone with learning difficulties behaviour then this may well be considered as relevant circumstances which should be taken into account when deciding to prescribe drugs. And further, drugs may be inappropriately prescribed ... if other forms of appropriate treatment like establishing alternative communication methods are not currently available".

It goes on to point out—it seems glaringly obvious—that,

"compulsory treatment should only be given when other (voluntary) treatment options can not provide the desired benefit".

The council is focused on the benefit. It is the lack of benefit within the Bill that it fears so much.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department for Work and Pensions, Minister of State (Department of Health) (NHS Reform)

This has been a long but very interesting debate. It has gone to the core of what the Bill is about; there is no question about that. That is why it has been such an emotional debate. Though it is emotional, I hope that we can none the less try and dispassionately go through the issues and why the Government believe the arguments they have put forward are right.

I want to place something on record because of the fears that have been expressed by some noble Lords. The idea that this provision is going to be used to bung people into a bin is quite the obverse. I am not a mental health expert but I joined the National Health Service a long time ago, in 1972. One of my first jobs was as a works study officer. At that time works study schemes were being introduced into many mental health hospitals, so I had an opportunity to see how mental hospitals worked. The last thing that I would ever want to do is to go back to some of the bad old days and practices. Whatever one's view about this Bill, we are all committed to high-quality and improved mental health services.

I also want to say that this is not about fingering psychiatrists. Part of the reason we are bringing forward this part of the Bill is to respond to a concern about how the issue of treatability has been addressed. It is not about putting psychiatrists into the dock—far from it. We want to support psychiatrists. We admire psychiatrists, and we understand the pressures they work under.

A number of noble Lords mentioned the development in the quality of the services and suggested that if only everything were perfect we would not need this legislation. Of course we need to improve clinical services, but the Bill is a genuine approach to improving the framework in which high-quality services can be given. That is our intent.

To go through the arguments and reasons for our proposals, Clause 4 formally removes the so-called treatability test from the criteria for detention for treatment under Section 3 of the Act; for those under hospital orders and hospital and limitation directions made by the courts under Sections 37 and 45A respectively; and from those under directions by the Home Secretary transferring sentenced prisoners to hospital under Section 47. It also removes the treatability test from the criteria for renewal and discharge of such detention as well as discharge of unsentenced prisoners transferred to hospital by the Home Secretary under Section 48. It then inserts into all those provisions a wholly new test of whether appropriate medical treatment is available.

Clause 5 inserts the same appropriate treatment test into the criteria for remanding patients to hospital for treatment under Section 36 while in custody awaiting trial or sentence; for the transfer of unsentenced prisoners to hospital under Section 48; and for giving a hospital order under Section 51 of the Act in a patient's absence—sometimes without convicting the patient in rare cases where a court thinks that that is the proper thing to do. In those circumstances, the treatability test has never been part of the criteria.

The result is that no one may be detained under the sections in question unless, in addition to the other relevant criteria being met—I stress that, because the test is not just the appropriate treatment test—the other stringent tests and safeguards in the legislation must be met. They remain; we have perhaps passed over that in our discussion. By contrast, Amendment No. 13 would retain the treatability test. The noble Earl, Lord Howe, fairly asked me what is wrong with the test. My noble friends Lord Soley and Lord Warner have very effectively answered that.

We believe that there are several things wrong with the treatability test. The fact that it has become known as the treatability test has encouraged the idea that there are whole classes of patients who are inherently untreatable. The fact that the test is especially associated with what the Act terms "psychopathic disorder" has meant that the tendency to a blanket assumption of untreatability has especially affected people with personality disorders. That has meant not only that the Act is not always used when it should be but it has held back the development of personality disorder services generally. The noble Lord, Lord Alderdice, and I may disagree about why those services have been held back, but I think that we agree that there is a problem about how they have developed.

That has left too many clinicians feeling reluctant, ill-prepared or ill-resourced to intervene to offer help to people with personality disorders. As noble Lords have said, such people often experience significant distress and suffering.

Photo of Lord Alderdice Lord Alderdice Liberal Democrat 9:45 pm, 10th January 2007

I am grateful to the Minister for giving way. Does he accept that in medicine generally, enormous caution is urged on physicians, surgeons and others not to take a treatment approach with which they are not familiar, comfortable and well versed? If they have any doubt whatever about their ability to be successful in the treatment, they are urged ethically by their professional bodies and by the Government not to proceed. That has meant super-specialisation in a whole range of areas—beyond what may even be sensible at times, but that is definitely the pressure. What is stated here is that psychiatrists who do not believe that their particular approach to treatment has something to offer a particular group of patients or individual patient are pressed into treating people they do not believe they have the skills or resources to deal with. There is a problem there. Professionally, the pressure is all one way but, in this specific area, it appears to be in the other direction.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department for Work and Pensions, Minister of State (Department of Health) (NHS Reform)

I understand the noble Lord's point. He is certainly right that the degree of specialisation in the health service generally has given rise to concerns about quality where clinicians do not have the specialist expertise. One of the problems of the treatability test is that it may have lessened that expertise, for the very reason that I gave and to which he referred. One of the negative impacts of the treatability test has been that it has held back the development of the personality disorder services generally. We think that the changes that the Bill makes will start to turn that around. There is no doubt that it has often left too many clinicians feeling reluctant, ill prepared or ill resourced to intervene to help people with personality disorders. We believe that changing the legal framework will provide a much sounder footing in order to put this right in the future.

Photo of Lord Soley Lord Soley Labour

This is a very important point. One of the reasons why it is beneficial, as the noble Lord's speech indicated a few moments ago, is that many psychiatrists think of treatability as meaning conventional psychiatry. Appropriate treatment, however, opens up into cognitive psychology, group therapy and a whole range of other treatments that are not the classical psychiatric models.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department for Work and Pensions, Minister of State (Department of Health) (NHS Reform)

That is a very helpful point. I do not want to argue for too long about how many psychiatrists are in favour of what. I simply wanted to say to the noble Lord, Lord Carlile, that he was a little unfair. Ten psychiatrists very kindly came to the meeting on Monday. As he will know, they had a predisposition to support the Government's proposals. We were asked to hold that meeting. It would not be fair for him to say that only 10 psychiatrists in the country support this. I am tempted to say that we will accept the challenge to find more, but I do not think that we should do that. What I will say is that there are some genuine disagreements.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Liberal Democrat

The Minister knows that those of us who are opposed to the clause cited the support of the Royal College of Psychiatrists. We all know perfectly well that if the college supported the Government, they would be holding up the flag of that college at every turn, saying, "We have the Royal College of Psychiatrists—the representative body—behind us". So we ask the Government to tell us who the psychiatrists are who support them. We really would like to know. We know of 10, but we have not been told of any others, so please will the Minister rise to the challenge? We would welcome him doing so.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department for Work and Pensions, Minister of State (Department of Health) (NHS Reform)

I will see what I can do. I genuinely do not know whether noble Lords would find it helpful if the Government arranged more such meetings, perhaps between Committee and Report. Some noble Lords are nodding, and I am very happy to try to arrange them.

We do have serious concerns about the treatability test, even when properly applied. In particular—again, there is disagreement here—our concern about the wording of the current Act, and about the aim of the therapeutic benefit test of the noble Lords opposite, is that it requires clinicians to predict that a particular outcome of a patient's treatment is likely. In fact, as has been said by other noble Lords, it is a feature of much healthcare, physical as well as mental, that clinicians often cannot say that a particular treatment is likely to work for a particular patient, even when following the best clinical practice. A clinician may not always truly be able to predict that a particular treatment is likely to work for a particular patient.

A perverse effect of the requirement to predict what is likely to happen will be that some patients—often those who pose the greatest danger to other people—will be encouraged to think that they can engineer their discharge by refusing to engage with treatment, especially psychological treatments. I understand the arguments for a therapeutic benefit test, but this is the genuine problem that we see with it. It does not have the culture problem of the treatability test, but, in whatever way such a test is phrased, it has an element of prediction. In contrast, the appropriate treatment test lets clinicians decide whether they have appropriate treatment to offer patients subject to the Mental Health Act, in the same way as they would for any other patients.

There has been a lot of discussion about appropriateness. It is as well to bear in mind that clinicians are already used to applying a test of appropriateness under the Act. Before they get to the new test, they will already have had to decide, as now, that a patient's mental disorder is of a nature or degree that makes medical treatment in a hospital appropriate. The word "appropriate" is used now, as it is in the new test, because that is precisely what needs to be tested. Whether what is proposed is appropriate given all the relevant factors is the kind of question which professionals need to ask all the time. It is not a subjective question; it does not invite a mere opinion; it calls for a professional judgment by people with the expertise to make it.

It is superior to what is currently in force, because it explicitly demands that the appropriateness of treatment be considered in the round—not just what might be termed narrow clinical factors. All the patient's circumstances must be looked at, including their age and gender, where they live, where their family and social contacts are, and their cultural background. Importantly, if appropriate treatment cannot be offered, detention cannot be used. Unlike the treatability test, that applies regardless of the label attached to their mental disorder.

Photo of Baroness Barker Baroness Barker Spokesperson in the Lords, Health

Will the Minister address two questions which arise from what he has just stated? He spoke about patients seeking to evade treatment by claiming that their conditions were not treatable. The noble Lord, Lord Warner, too, mentioned that in his speech. Can noble Lords opposite give evidence of the nature and extent of that problem within mental health services? I would like to know how big a problem that is in reality, because, if we are going to accept the Government's arguments, it is right to have some evidence.

In addition, given how wide the Minister has begun to draw the definition of "appropriateness", how confident are the Government, and on what basis, that their wide definition of "appropriateness" will not be open to just as extensive an amount of challenge? Although I am a lay person, I can well picture lawyers and representatives pitching up to mental health review tribunals to argue till the cows come home about what exactly "appropriateness" is and whether it can be determined by their age, race and where they live.

The noble Lord, Lord Soley, referred on Monday and again today to mental health review tribunals as a great safeguard within the mental health system. My understanding—I ask noble Lords to correct me if I am wrong—is that it is the job of mental health review tribunals to interpret the implementation of the law, whatever the law happens to be. They are not in themselves a safeguard; they are a safeguard for the law. Therefore, in future, were these provisions to be accepted, tribunals would extensively have to interpret what the word "appropriate" meant.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Department for Work and Pensions, Minister of State (Department of Health) (NHS Reform) 10:00 pm, 10th January 2007

On the first point, I will write to the noble Baroness with the information that I have available on the kind of example that I have quoted. I guess that, of course, the detention of patients is subject to legislation. Therefore, there are always potential challenges for how the Act operates. I certainly would not want to run away from that. The test of appropriateness is already contained in the 1983 Act, and the noble Baroness will have seen the draft code on which we welcome evidence as to how appropriateness will be judged. Obviously, clinicians will need to use their own professional judgment within that.

None the less, we believe that the test of appropriateness, which is contained in the Bill, will be a more satisfactory test. It will provide a better foundation, and it will avoid the situation where patients—members of the public—are not getting the treatment that they ought to receive because of the perverse way that the treatability test has operated.

Time moves on and I should probably stop there. I just want to finish by saying that I do want to come back to my original comments. This clearly goes to the heart of this Bill—no question about that. I hope that the noble Lords will not be in any doubt that it is my and the Government's intention to use this Bill as a foundation for ensuring public/patient safety, and a better foundation for improving services in future. I really do think that the fears raised tonight about the appropriate treatment test are unfounded. It is not about social control and it is not about pushing far more people into detention—it is about actually ensuring that we do provide more appropriate services.

Photo of Earl Howe Earl Howe Shadow Minister, Health

I hope that it is in order if I reply very briefly before we move on. This has been an extremely useful debate—we have heard powerfully expressed views on both sides of the argument. However, I have to say to the Minister that I remain unpersuaded that the Government's case is proven.

Perhaps I may comment briefly on one or two of the contributions. I listened with close attention to the noble Lord, Lord Soley, and he cited a number of examples to support his views. There is one remedy currently available to anti-social conduct, such as throwing bricks over a wall, and that is the anti-social behaviour order. It may be that the police in those circumstances do not want to use their powers, but that is rather a different matter. In fact, the decision not to use legal powers to detain patients is not so dissimilar to any decision not to use the powers to use an ASBO.

I am not sure that some of the other examples that the noble Lord gave were wholly relevant. This is because there was no treatability criterion in the 1960s and 1970s, nor for the cases he was quoting—that is, before the Mental Health Act 1983. Under the 1959 Act, if my memory serves me right, psychopathic disorders were relevant only up to the age of 19 years. They were good stories, but I believe that they were based on the wrong law.

We heard from a number of noble Lords in support of the Government—particularly from the noble Lord, Lord Warner—that doctors are apparently holding back from applying compulsory detention because of the treatability test, which is a barrier. The belief that people are denied treatment because they are alleged or are considered to be untreatable ignores the fact that in this Bill the Government are doing a lot of things that could well address that issue—not the least of which is the fact that psychologists are being brought within the scope of the Act. That will be accompanied by considerable changes of practice in the professions. We should not belittle that point. I therefore wonder why the Government believe that a change in the law will make psychiatrists engage better in the decision-making process. Is it not more a matter of training? In many ways the objections raised to the amendment reflect yesterday's rather than today's problems.

The noble Lord, Lord Carlile, was absolutely right; there have unfortunately been a large number of homicide inquiries in recent years, but not one has suggested that the treatability test was an issue or that it should be amended. The noble Baroness, Lady Murphy, spoke passionately in favour of retaining the concept of therapeutic benefit, with which I fully agree. The mental hospitals used to be, and sometimes still are, referred to as bins because people were locked up without benefit. To this day, one of the reasons for having to use the Mental Health Act is that patients do not want to go to those places; they have a reputation. That is why we keep coming back to the fear, which many of us share, that because patients want to avoid treatment, they will continue to want to avoid it, and that will enhance risk.

One has to ask whether, if there is no therapeutic benefit, where the driver is to develop therapeutic programmes and services. On what basis do you give a treatment that is unlikely to benefit a patient? The noble Baroness, Lady Meacher, took us to the heart of medical ethics on that issue. This is not to do with denying people services; we want to shed that illusion. It is to do with locking people up under the care of a doctor when they do not want to go there and furthermore the doctor cannot do anything to help them other than perhaps experiment on them by administering drugs. No physician is permitted to lock up a person with a physical illness against that person's wish.

The noble Lord, Lord Hunt, said that the treatability test involved an element of prediction. That point was also made by the noble Lord, Lord Warner. I think that they were wrong, in law at least, to say that. In my view, the treatability test does not require any level of certainty about outcomes; it simply requires containment under supervision by a trained professional in a therapeutic environment. I refer the Minister particularly to a relatively recent case, from 1999, Reid v Secretary of State for Scotland, which concerned a restricted psychopathic patient whose anger management was improved by the supervision he received in the structured setting of a state hospital, but where the judges were clear that that did not go further to permit indefinite preventive detention of a person for whom no benefit could be shown. There is no high level of certainty of outcome, simply a likelihood that there is a clinical basis for prescribing the treatment.

We come back all the time to patient autonomy, which we debated earlier. With a physical illness, the physician discusses with the patient the likelihood of benefit from the treatment; it is then the patient's decision whether to take the treatment. Nothing is forced on the patient in those circumstances. I have a worry about human rights here. I say to the noble Lord, Lord Warner, that the Joint Committee on Human Rights criticised the 2002 Bill in this area. It said:

"Whatever the Government's intention, the wide definition of medical treatment in the draft Bill would allow people to be detained where the only treatment that could be offered was care under the supervision of an approved clinician".

The Government would do well to reflect on the Joint Committee's report.

I come back to my fundamental worry here, which is the vagueness of the wording of the Bill, the likelihood of this leading to many groups of people becoming subject to compulsion who should not be, and the consequent profound ethical problems for clinicians, to which the noble Baroness, Lady Meacher, referred. These remain serious concerns.

As noble Lords have said, this is one of the key issues in the Bill. It is clear that views are polarised and, regrettably, I do not think we are likely to achieve a meeting of minds on it in the short term. I hope that some positive purpose will be served by a period of reflection between now and the next stage of the Bill.

Clause 4 agreed to.

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon Government Whip

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at 10.11 pm.