Mental Health Bill [HL]

My Lords, with this group of amendments we have arrived at perhaps the single most critical issue in the whole Bill: the presence or absence of a test of therapeutic benefit. Since our very extensive debates in Committee, a number of us have had the advantage of private discussions with the Minister, for which I, for one, am grateful. We also now see before us some movement by the Government in the shape of their amendments grouped here, which seek to define in the Bill the purpose of medical treatment. Without repeating the powerful arguments put by the noble Lord, Lord Carlile, I want to add a few brief points of my own in support of Amendments Nos. 4, 6 and 7. In Committee, I and others argued for the retention of the status quo in the 1983 Act—that is to say, the retention of the treatability test as currently defined. The Government resisted that proposition and argued instead for the appropriate treatment test contained in the Bill on the grounds that this was better suited to dealing with the perceived problem of certain people with personality disorders falling outside the scope of the law. I did not—and I do not—accept the Government’s premise that a serious problem exists. I do not believe that they have produced any evidence for it beyond anecdotal reports. However, the amendment to which I have added my name is designed to meet the Government half way. It accepts the test of appropriate treatment and accepts that it should be the availability of the treatment rather than anything more which matters for the purposes of the test. But it also redefines appropriate treatment in the language of the 1983 Act so that the test of likely therapeutic benefit is retained. The advantage of that approach is twofold. It ensures that there is no possible argument by people with a personality disorder who, after being detained, refuse to engage with their treatment and as a result claim to be untreatable. It also retains in law a form of words that commands universal understanding and whose legal meaning is clearly defined in case law. The Reid case of 1999 established that health benefit could comprise in certain circumstances no more than containment within a therapeutic environment under supervision so long as there is likely to be some benefit to the patient. So the current test is very broad. Personality disorders are not excluded because they can now be successfully treated. Let us be clear that the fact that there needs to be a likelihood of health benefit is no barrier to detention. The underlying disorder does not need to be addressed. If, as the Government propose, one does not have a test of likely therapeutic benefit, the consequence is obvious. The noble Lord, Lord Carlile, has spelt that out. The legislation suddenly acquires a broad reach because the concept of benefit to the patient is diluted almost to extinction, other than the very nebulous benefit of being confined in a therapeutic environment. It was that formulation which was heavily criticised by the joint scrutiny committee in 2004, and it has been criticised again only this week by the Joint Committee on Human Rights. The JCHR said: "““The appropriateness test in relation to treatment without consent must address the issues of medical necessity and the likelihood that the treatment will alleviate or prevent deterioration””." That conclusion could not be more clear. In the committee’s view, not only does the test of likely therapeutic benefit have to apply, it also has to be on the face of the Act. The inference to be drawn is that without it, the Act could authorise detention, which in some cases would be profoundly unethical. Yet it is not difficult to see that the Government have rejected this test precisely because in their view it would exclude from compulsory detention a group of patients who are, in their words, ““treatment resistant””. Exactly who that phrase refers to is not at all clear. I hope that the Minister will be able to tell us. I also hope that he can shed some light on the government amendments. I was initially pleased and excited by the amendments, as I saw them as importing something quite significant. However, I am now in considerable doubt about that. While Amendment No. 12 defines medical treatment as, "““treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms””," which sounds very much more in tune with the language of our own amendment, I am exceedingly worried by the last two words of the amendment—““or effects””. The effect of someone’s mental disorder may consist of alarm or affront on the part of the public because his behaviour has been violent and disruptive. Treatment that has the purpose of alleviating that effect—and no more than that—could consist of nothing more than locking the person up in a therapeutic surrounding away from the public view. Making the effect of someone’s condition into a trigger for compulsory detention creates a test that is wide open in its application. The wider and vaguer the test, the greater the risk of exactly the thing that none of us wants—deterring the people who most need help from seeking it. If the government amendments are accepted, we shall be right back to where we were before, with a Bill whose wording seems guaranteed to excite the suspicion among some that it is capable of being used as a means of social control. I am truly sorry to have arrived at this conclusion as I had hoped for a meeting of minds. To reject the government amendments because of one word seems harsh, but I shall do so until such time as the Minister can dispel the fears that I now harbour. He may have a job on his hands to do that. Meanwhile, I am clear that in line with the recommendation of the JCHR, the right and ethical thing to do for the sake of both mental health patients and the public is to support the wording of Amendment No. 4.