Baroness Murphy:

Moved by Baroness Murphy

37A: Clause 5, page 11, leave out lines 14 to 16 and insert—(b) there is a risk of serious harm to the health or safety of the patient or of another person;”Member's explanatory statementThis Amendment and others in the name of Baroness Murphy remove from the criteria any mention of “likelihood” or “may be caused” and replace them with wording that allows a clinician to evaluate risk in the individual case and give evidence more straightforwardly and comprehensively without making predictions for individuals about risk.

My Lords, in this group, we return to the issue of serious harm and risk. Clause 5, on the grounds for detention, implies that the risk factors for detention under Part 2 are identifiable and that risks are readily assessed. A number of clauses in the Bill are all about the same thing, which is why there are so many amendments in this group. They imply, again, that risks are quantifiable and predictable—if only.

Academic research has often stressed how difficult it is to predict episodes of violent behaviour in individuals, because they are rare. Risk assessments given as likelihoods are of limited use when the base rate for violence in a population, particularly serious violence, is low. The same is true, by the way, for suicide and suicidal thoughts.

It has been calculated, using the average of all the current tests and rating scales that have been carefully assessed in research studies, that if 5% of the patient population were in a high-risk category, the tests would correctly identify eight in 100 people who would go on to commit acts of violence, but misidentify as violent another 92 people. In fact, less than 1% of community patients will commit serious violence over the period of a year, which means the tests would correctly identify only three patients out of 100.

Homicides occur at a rate of one in 10,000 patients suffering from a psychosis per annum, which makes prediction more or less impossible. A number of factors are statistically associated with later violence at a group level. Even the most effective predictive combinations of variables constructed by statisticians perform poorly, except at group level. So making statements about individual risk based on the use of these tools is complex, and some would say unsafe and unethical.

Structured risk-assessment systems can be useful in routine clinical practice; indeed, most people use them in day-to-day team thinking about what these risks are. When employed by staff properly trained in their use, they are useful pointers. They perform better than unaided clinical judgment in predicting future violence, but again, at a group level. On an individual level, these checklists need to be part of a detailed understanding of a patient’s mental state, life circumstances and thinking, which is a major contributor to the prevention of harm. This is best achieved, as always, by well-trained professionals operating in a well-resourced environment where staff know well the patient’s history, response to treatment and life circumstances.

The wording of the Bill encourages pseudo exact probabilities and predictions of individual behaviour, which are not possible. This exerts pressure on psychiatrists, particularly at tribunals, to make predictions that may be seriously wrong. Unreasonable expectations of what can be predicted lead to defensive practice—to detaining people where it is not justified by the unreliable evidence. There are several places in the Bill where the impression is given that risks are reliable and predictable, but it is not so. As I say, the same problem arises with suicide and suicidal behaviours.

I ask the Government to look at whether the wording of these clauses is reasonable, given the evidence, and to substitute these certainties with something more flexible, indicating that a more rounded, holistic and comprehensive assessment is necessary. I beg to move.

My Lords, I rise to speak to Amendments 86 and 67, in my name, in this group. I put them in that order as Amendment 86 more naturally follows on from—

A noble Lord:

Wrong group.

Apologies.

I am awfully sorry, but I should have mentioned that I also have almost all the other amendments in this group. They cover the same question—it is just about the wording of these two phrases. Amendment 45, along with one other, is not mine, but most of the amendments are covered by those brief words.

My Lords, I think that I am speaking in the right group. Amendments 45 and 48 are in my name, and although they are in this group, they are of a rather different nature. They are about the framework and definition of “appropriate medical treatment”.

I will briefly outline the overall context and why I thought it important to bring these two amendments forward. I am particularly concerned that many in-patients in mental health hospitals, particularly autistic people and people with a learning difficulty, continue to face detention in hospital settings which can provide little or no therapeutic benefit. The environment of these hospital settings can be incredibly overstimulating and distressing. We continue to hear stories of restrictive practices, including physical, mechanical and even chemical constraint, as well as the use of solitary confinement.

It is a clear principle of the Bill that any detention in a mental health hospital must have therapeutic benefit—I think we are all agreed on that. Everyone is different, and whether detention has therapeutic benefit for a person must be assessed by seeing them as an individual and understanding them as a whole person. The purpose of Amendment 45 is to clarify that the definition of “appropriate medical treatment” introduced in new Section 1A includes consideration of the setting in which treatment takes place.

Placing this wording in the Bill will ensure that the hospital environment is taken into account when deciding whether appropriate medical treatment can be delivered. Too often, the appropriateness of the hospital environment—as I have said, particularly for autistic people and people with learning disabilities—is not given primacy in decision-making or, frankly, considered at all. Reviews of the use of restrictive practice in hospitals have concluded that many ward environments are chaotic and non-therapeutic, and often trigger behaviour that necessitates the use of segregation and restraint. This can then lead to further behaviours that challenge and cause a decline in mental health, meaning that the person does not get better, which is what we are all looking for, but ends up being hospitalised for what can feel like a very long time indeed.

In-patient wards can be particularly distressing environments for autistic people, and often environmental problems—basic things such as noise, echoes and harsh lighting—can adversely impact on therapeutic benefit. Where that environment is not therapeutic, it may mean that people are less likely or willing to engage with therapies. In some cases, although a particular medication may be considered clinically appropriate, the distress that can be caused by being contained in a mental health hospital may mean that the benefit of that therapeutic Intervention is undermined by the hospital environment, and therefore detention in hospital can easily have a negative impact on a person’s well-being. It is vital that these environmental factors are considered, particularly, as I say, in relation to adults with a learning disability or autism, where even very small changes in everyday routines can be incredibly distressing.

The NHS England guidance for commissioners states:

“For people admitted to an acute mental health unit, a therapeutic environment provides the best opportunity for recovery”.

The guidelines go on to talk about the attention that needs to be paid to specific environmental factors which can increase the risk of challenging behaviour. It is important that all these points are considered when deciding on whether appropriate medical treatment would have a therapeutic beneficial impact. We need to recognise, as I am sure that we do, that everyone is different. The right environment can be based on a person’s own sensory profile, and that sensory profile can change throughout someone’s detention in a mental health hospital.

The report of the independent review, which we have talked about so often, stated that therapeutic benefit

“should not be limited to any treatment they receive but must also cover the social and physical environment of wards”.

This is particularly important given the dilapidated condition of much of the mental health estate, which needs urgent attention and capital investment. When we talk about parity of esteem between physical and mental health, what message does it send that the mental health estate is always at the end of the queue?

Briefly, Amendment 48 would ensure that the definition of “appropriate medical treatment” has regard to the principle of therapeutic benefit established in the Bill, which addresses the effectiveness and appropriateness of treatment. Therapeutic benefit is one of the four principles underlying the Bill, which are all identified in the independent review. Despite the importance of ensuring that therapeutic benefit guides many of the important changes that we are talking about in the Bill, as currently drafted the words “therapeutic benefit” are found only once, to be inserted in Section 118 of the Act to ensure its inclusion in the code of practice, alongside other principles.

At present, the definition of “appropriate medical treatment” includes no specific mention of therapeutic benefit. My contention is that therapeutic benefit should be the fundamental principle upon which appropriate treatment is defined, thus the importance of its insertion in this definition, to bring it in line with the spirit of the Bill. This change would ensure a proper recognition that patients are supported to recover so that they can be discharged from detention at the earliest convenience and not end up stuck in wards where there is little to no therapeutic input, meaning that discharge is continuously delayed due to a lack of progress.

We hear stories about autistic people and people with a learning disability being stuck on wards for an average of nearly five years, where they face being overmedicalised and institutionalised, sometimes to the extent that they can barely get out of bed. These detentions lead to severe lifelong trauma, which can be incredibly difficult to overcome. This leads to an obvious risk of readmission after they are discharged into the community. I feel this is little short of—to use the phrase that the noble Baroness, Lady Browning, used—a human rights scandal, and it has to end. I believe that an explicit focus on therapeutic benefit when delivering treatment is one way that the Bill can help to achieve that. We simply must grab hold of this opportunity.

My Lords, given that all those who have spoken to this group of amendments have been brief, I shall try to be brief. Once again, I thank the noble Baroness, Lady Murphy, for discussing with me in an exchange of emails over the weekend the intent behind the amendments in her name.

The noble Baroness, Lady Murphy, makes a reasonable point about clauses in the Bill that contain the phrase “likelihood of the harm” or “serious harm may be caused”, because it is assumed that such risks are quantifiable and predictable. I was struck by her observation that psychiatrists, psychiatric nurses and academics have warned about the difficulty of being able to predict episodes of violent behaviour in individuals because the base rate for violence, particularly serious violence, in the population is low. One of the things that we keep saying throughout this debate is that we need to see the evidence and the data, and that that should drive decisions that are being made. Given that, I am grateful to the noble Baroness for sharing the statistics, which I will not repeat but which reinforce the point that she wanted to make.

Considering those statistics, I am sympathetic to two specific points that the noble Baroness made. The first is that making statements about individual risk based on such statistics is complex and possibly unsafe, and, as the noble Baroness said, may be unethical. The second is that it may be helpful to use structured risk-assessment systems in routine clinical practice, if used by appropriately trained staff, to predict possible violence at a group level. However, given that many noble Lords have spoken about patient-centred care and the importance of understanding the individual and their sensory profile, surely we should be looking at patients as individuals, where the clinician better understands the individual patient’s mental state, relevant history and response to treatment given his or her life circumstances.

I will be interested in the Minister’s response to the amendments in the name of the noble Baroness, Lady Murphy, urging the Government to replace wording such as “likelihood of the harm” or “serious harm may be caused”. These terms are inexact and somewhat ambiguous and do not appear to be driven by evidence. Perhaps there are more appropriate terms for more holistic and comprehensive assessments.

Amendment 45, tabled by the noble Baroness, Lady Tyler, proposes that the definition of appropriate medical treatment includes the setting in which treatment takes place. This takes us back to a point made on the first day in Committee by the noble Baroness, Lady Barker, and just now by the noble Baroness, Lady Tyler, that for those with autism and learning disabilities, being held possibly in noisy, bright, busy settings full of people who may be strange to them, and where they may feel powerless and worry about what will happen next, is likely to affect their mental health and well-being. Therefore, surely it is important that we take account of the points made by the noble Baronesses, Lady Barker and Lady Tyler, particularly in Amendment 45.

On Amendment 48, it is really important that care is led by the level of therapeutic benefit. That should be based on evidence to drive those decisions. Given that, I look forward to the Minister’s response.

My Lords, I am most grateful for the contributions that have been made and the amendments that have been tabled.

I turn first to Amendments 37A, 37C, 38A, 38B, 42B, 42D, 42E, 42G and 42H, all tabled by the noble Baroness, Lady Murphy, and spoken to by other noble Lords, including the noble Lord, Lord Kamall, regarding the new criteria. Let me say at the outset that the new criteria explicitly require decision-makers to consider the risk of serious harm and the likelihood of those harms occurring in order to justify detention. Clearly, the reason for this is to ensure that any risks to the public and the patient are consistently considered as part of the assessment process, and to protect patients from lengthy detention when these risks are unlikely to occur. I hope that this will be helpful for some of the debate that we have had.

The amendments tabled by the noble Baroness, Lady Murphy, seek to revise the proposed new risk criteria to remove any mention of risk that “may be caused” or the “likelihood” of the risk transpiring. The purpose appears to be to remove any prospective assessment from the detention decision and instead focus on the risk as it can be established at the time. The noble Baroness, in her introduction, asked about the reasonableness of the words in the provisions, and I understand that this is where the concerns lie. I should also thank the noble Lord, Lord Kamall, for his comments on evidence and data and their importance. In answer to the noble Baroness, I should say that the independent review found that the current criteria for detention are too vague and recommended that the Government should update the detention criteria to be more explicit about how serious the harm has to be and how likely it is to occur to justify detention. The intention of the revised detention criteria in the Bill is not to ask clinicians to make predictions but to clarify that they should consider whether a harm is likely to occur, based on their assessment and knowledge of the person—something that the noble Lord, Lord Kamall, focused on—rather than based on risks which may never occur.

Any consideration of risk arguably preserves the need to look at what might happen rather than what is happening or has happened in more concrete factual terms. We think that it is important that the detention criteria allow clinicians to detain based on the risks that they think are likely to happen, rather than just the risks that have already materialised. This enables them to act early to prevent harm to the patient or others. In line with the intention of the noble Baroness’s amendments, this should be based on personalised individual risk assessments and information about the patient’s history and personal circumstances—again, something that I know noble Lords are exercised by, which is about the individual approach to this.

We did engage again on the changes to the detention criteria last summer, in light of the recommendation on this issue by the pre-legislative scrutiny committee, and to assure ourselves that the detention criteria struck the right balance between allowing clinicians to continue to take early action when they are concerned about a patient’s or others’ safety and the independent review’s concerns that people could be detained on the basis of risks that might never occur.

Taking into account the recommendation of the pre-legislative scrutiny Joint Committee, we have removed the requirement from the draft Bill for clinicians to consider how soon harm may occur, to avoid suggesting that harms must be imminent—and to ensure that we do not dissuade clinicians from making beneficial interventions at an earlier stage. The timeframe in which harm may occur may still be relevant to detention decisions and we will clarify this further in the code of practice.

Amendment 45, tabled by the noble Baroness, Lady Tyler, would require a clinician assessing what constitutes appropriate medical treatment to take into account the setting in which the treatment is to take place. The noble Baroness asked about how it is ensured. I take her point about in-patient wards for people with LDA not undermining the aim of therapeutic benefit. I will be very pleased to write to her on that. This is a very important area, and I want to ensure that I have the opportunity to reflect properly on that and to offer comment on the mental health estate—again, points that were well made.

Before I continue, on the estate and capital investment, I hope noble Lords noticed that the settlement in terms of moneys allocated to the department did include a specific investment in capital to reverse a trend of capital underinvestment over the last 15 years, which was identified by the noble Lord, Lord Darzi, in order that we can start—I emphasise “start”—reducing the backlog of critical infrastructure across the NHS estate. We will be setting out plans for mental health funding in 2025-26 in due course.

Returning to the points raised by the amendment, I should say that Clause 8 embeds the principle of therapeutic benefit into the Bill by providing a new definition of “appropriate medical treatment”. It introduces the requirement that detention must have a “reasonable prospect” of benefiting the patient, and we would expect the setting in which someone is going to be detained to be part of this. The current code of practice already states that patients should be offered treatment and care in safe, supportive and therapeutic environments. We will ensure that this is reflected in the updated code of practice.

Amendment 48, also tabled by the noble Baroness, Lady Tyler, would insert a specific reference to the principle of therapeutic benefit into the definition of appropriate medical treatment in Clause 8. We strongly support the principle of therapeutic benefit and have explicitly set this out in the Bill, as well as embedding all four principles from the independent review throughout our reforms. The changes made to Clause 8 in the Bill already embed the principle of therapeutic benefit in the definition of appropriate medical treatment by introducing the requirement that treatment has a “reasonable prospect” of benefiting the patient to be deemed appropriate.

With that response, I hope that the noble Baronesses will not press their amendments.

I thank the Minister for her response. I have to say that psychiatrists remain worried about this and the possibility that they will be expected to make decisions on risks which they are simply not capable of doing. But I would not want there to be a feeling around that we want to discourage people from taking action much earlier than they sometimes currently do, because, in my view, they often leave it too late before they admit somebody—we have seen a number of such cases recently. I reserve the right, perhaps, to come back with some alternative ideas, but I beg leave to withdraw my Amendment.

Amendment 37A withdrawn.