Mental Health Bill [HL]

moved Amendment No. 4: 4: Clause 5, page 3, line 13, leave out from ““is”” to end of line 15 and insert ““likely to alleviate or prevent a deterioration in his condition.”” The noble Lord said: My Lords, in this group we are also considering Amendments Nos. 6 and 7 and government Amendments Nos. 8, 11 and 12. I start with a reference to the government amendments—I hope that it will be taken as a generous reference, not made grudgingly on this occasion. All of us who are involved with therapeutic benefit, on which I shall say more in a moment, are grateful that the Government have taken a great deal of time and trouble to consider the previous debates on this issue. I recognise that the Government have attempted to meet the serious concerns expressed in the past not just by those of us involved in the joint scrutiny committee’s deliberations but by many others around the House. Having said that, I regret that the amendments proposed by the Government do not seem to go anywhere near meeting the requirements which caused those concerns. This group of amendments is about what has generally been called therapeutic benefit. There is a principle here and, in my view, it is an important and ethical principle. As a matter of medical and legal ethics and of professional ethics in the round, no professional person should be required to provide a service to someone whose requirements do not come within their professional ethical code of practice. Under the Bill as it stands, doctors and other clinicians—far from all clinicians are qualified medical practitioners—are being asked to provide medical treatment in circumstances in which such treatment is simply inappropriate. Therefore, I argue that clinicians are being asked to do something unethical. Putting it crudely, some clinicians may find themselves in the position of being asked to be, in reality, nothing more than turnkeys. If it is the Government’s view that it is appropriate to introduce legislation which requires people to be locked away from society because they are perceived to be dangerous but could not benefit therapeutically, then I am sure that this House will consider any such proposed legislation on its merits. It may achieve a fair passage and it may not. At least it would be honest, ethical legislation in which the Government would set out their objective and we, the Members of this House—in, I hope, the multi-partisan way that has applied to many of the deliberations on this Bill—would then consider such legislation. After all the arguments that we have heard in the many debates on this Bill and its predecessors, it remains my view that it is wrong for there to be compulsory detention in a hospital where there is no therapeutic benefit or its equivalent, whatever words one uses to describe that concept. The Government have put forward an amendment to require the purpose of any treatment under the Bill to be, "““to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or effects””." There is an awful lot of the use of the word ““or”” in that sentence. I suggest that the Government have been parsing the language. But if one parses the language that they have offered, one is left, if at all, with a mere smidgeon of movement towards therapeutic benefit and no more. The Government’s proposals stop short of requiring any likelihood of the person benefiting from that treatment. Surely if one is taking someone into a hospital for treatment, the normal clinical judgment is that there is a likelihood that there will be benefit from the treatment. It does not mean that the clinician is saying that there will be a benefit from the treatment but that a clinical judgment has been made that the detention in hospital is likely to provide some benefit. We believe that the Government’s amendments, well intentioned though they are, still leave the possibility of a person being detained simply for preventive purposes without any medical benefit. We do not require people to be cured of their illness—we know that that is impossible in many acute cases where there is mental disorder—but we believe that there should not be the range of possibilities that the Government’s amendments offer. For example, if all that is required is an alleviation of one of the effects of the condition, that could mean that a person suffering from Tourette’s syndrome—a well known disorder sometimes manifested by the use of offensive language—could be detained in hospital simply in order to alleviate their use of offensive language in public places. Surely the Mental Health Act 1983 is not intended to deal with that kind of situation, but the very wide range of the words in the Government’s amendments means that that kind of situation could arise. It raises the possibility of clinicians being asked to incarcerate for very long periods people whom society does not like. I do not believe that that is an ethical approach to mental health law. In my view, the amendments in this group that I and others propose provide a perfectly practicable alternative that would not compromise public safety one jot. We invite the Minister to agree that that is the case and to agree to reconsider his position in relation to the Government’s amendments. I should be only too happy to withdraw the amendment if I felt that there were a real possibility of the Government accepting that their approach has been just too tentative. I beg to move.